Enforcement of Maritime Claims

4
ENFORCEMENT OF MARITIME CLAIMS

FOURTH EDITION
••
LLOYD’S SHIPPING LAW LIBRARY
The Ratification of Maritime Conventions
edited by The Institute of Maritime Law
University of Southampton
(1990) (looseleaf)
EC Shipping Law
second edition by
Vincent Power
(1998)
Limitation of Liability for Maritime Claims
third edition
by Patrick Griggs and Richard Williams

(1998)
Shipping and the Environment— Law and Practice
by Colin de la Rue and Charles B. Anderson
(1998)
P. & I. Clubs: Law and Practice
third edition
by Steven J. Hazelwood
(2000)
Enforcement of Maritime Claims
third edition
by D. C. Jackson
(2000)
Berlingieri on Arrest of Ships
third edition
by Francesco Berlingieri
(2000)
The Law of Ship Mortgages
by Graeme Bowtle and Kevin McGuinness

(2001)
Voyage Charters
second edition
by Julian Cooke,
Timothy Young, Q.C., Andrew Taylor, John D. Kimball, David Martowski and
LeRoy Lambert
(2001)
Ship Registration: Law and Practice
by Richard M. F. Coles
with Nigel P. Ready
(2002)
London Maritime Arbitration
second edition
by Clare Ambrose and Karen Maxwell
(2002)
The Law of Shipbuilding Contracts
third edition
by Simon Curtis
(2002)
The Law of Tug and Tow
second edition
by Simon Rainey
(2002)
Ship Sale & Purchase
fourth edition
by Iain Goldrein, Q.C., and Paul Turner
(2003)
Time Charters
fifth edition
by Michael Wilford, Terence Coghlin and John D. Kimball
(2003)
Admiralty Jurisdiction and Practice
third edition
by Nigel Meeson
(2003)
Merchant Shipping Legislation
second edition
by Aengus R. M. Fogarty
(2004)
Laytime and Demurrage
fifth edition
by John Schofield
(2005)
Marine War Risks
third edition
by Michael D. Miller
(2005)
Bareboat Charters
second edition
by Mark Davis
(2005)
Limitation of Liability for Maritime Claims
third edition
by Patrick Griggs, Richard Williams and Jeremy Farr
(2005)
Enforcement of Maritime Claims
Fourth Edition
By
D. C. Jackson
Emeritus Professor of Law, L.L.D., M.A., B.C.L.

University of Southamption
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© D. C. Jackson, 2005
First edition 1985
Second edition 1996
Third edition 2000
Fourth edition 2005
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Preface
Since the third edition (of 2000) there have been substantial European and national
developments. The extension of the European Union has meant the increase in scope of
European law. With particular relevance to this work this extension has been
accompanied by bringing the jurisdiction and judgments regime of the Brussels
Convention into that law through Regulation 44/2001. However that Convention and the
Lugano Convention remain in force—the first as regards Member States and Denmark
and the second as it was prior to the Regulation. The issue of whether the national or
European regime applies has occupied a great deal of English judicial attention with the
European Court not always seeing the assertion of Engl ish principles as consistent with
the European structure. The advent of the Regulation means an additional question of
which European regime is applicable, and has raised serious issues of the power of
Member States to become parties to multilateral mariti me treaties.
In English law, apart from European matters, the principal relevant developments
have been the full inclusion in the Civil Procedure Rules of Admiralty and Arbitration
proceedings, the continuing construction of the Rules as compared to the ea rlier Rules
of the Supreme Court and on a particular jurisdictional issue, the approach to the anti -
suit injunction.
The pattern of the book remains as in previous editions. There are five parts.
Parts I and II encompass:
(1) the extent to which a connection is required between England and a dispute for
an English court to hear and determine the dispute;
(2) the characteristics of the actions in personam and in rem as methods of
enforcing a claim;
(3) grounds for and restrictions on powers (and their exercise) of English courts to
hear and determine disputes—including the relationship between English and European
law;
(4) time restrictions on the bringing and pursuit of a claim:
(5) the availability and nature of arbitration as an alternative to litigation.
Part III is a discussion of interim relief and the extent to which, if at all, a claimant
can ensure that the defendant’s assets are available to satisfy a judgment.
Part IV is concerned with the security interests in assets —particularly those
created or enforceable by an action in rem. There is a detailed examination of the
concept of a lien, the connections between a lien and the action in rem, the
characteristics of different types of lien and priorities between liens. Finally in this part,
a short chapter is devoted to the complex question of the creation of liens by contract,
particularly in charterparties and bills of lading.
Part V deals with the question at the heart of the p ursuit of any claim—the remedy
available and likely to be awarded and limitations there may be on the amount of
damages.
Part VI is concerned with the foreign element more often than not part of a
maritime claim—the law which governs particular issues befo re an English court and
the recognition or enforcement of foreign judgments.
Relevant legislative and Convention text together with Civil Procedure Rules
concerning jurisdiction are set out in the appendices.
As has been the case in previous editions I am grateful to the publishers for their
encouragement and patience, to my colleagues of the Institute of Maritime Law and the
Faculty of Law for their valued assistance, to my scretary Mrs Marion Dalton for her
remarkable continuing expertise in deciphering illegible manuscript, and to my wife for
the (as ever) countless aspects of support that she gives.
DAVID JACKSON
Outline Table of Contents
Preface Table of Cases Table of Statutes Table of Statu tory Instruments Table of
Conventions and Treaties
INTRODUCTION. MARITIME CLAIMS AND THEIR CONSEQUENCES
PART I. JURISDICTION AND MODES OF ENFORCEABILITY

Chapter 1 Sources of Admiralty jurisdiction
Chapter 2 The nature of maritime claims
PART II. JURISDICTION OF ENGLISH COURTS AND ARBITRAL

TRIBUNALS
Chapter 3 Jurisdiction bases for enforcement of maritime claims
Chapter 4 The Jurisdiction and Judgment Regulation and Convention —
boundaries and structure
Chapter 5 Forum law or Community regime?
Chapter 6 Regulation 44/2001 and the Brussels Convention—jurisdiction
allocation in initial proceedings
Chapter 7 Jurisdiction as between England, Scotland and Northern Ireland
Chapter 8 The Lugano Convention—divergences from Regulation 44/200 1 or the
Brussels Convention
Chapter 9 Enforcement of maritime claims by an action “ in personam”
Chapter 10 Enforcement of maritime claims by an action “ in rem”
Chapter 11 Delay in suit
Chapter 12 Restrictions jurisdiction
Chapter 13 Arbitration
PART III. INTERIM RELIEF

Chapter 14 Nature and basis of interim relief
Chapter 15 Arrest and alternative security
Chapter 16 The “Freezing” injunction
PART IV. SECURITY ON THE MERITS —THE LIEN CONCEPT

Chapter 17 Nature and development of liens
Chapter 18 Maritime liens
Chapter 19 Statutory liens in Admiralty
Chapter 20 Possessory liens
Chapter 21 Equitable liens
Chapter 22 Creating a lien by contract
Chapter 23 Priorities
PART V. REMEDIES
Chapter 24 Limitation of liability
Chapter 25 Remedies determinative of substantive issues
PART VI. FOREIGN LAW
Chapter 26 Application of foreign law
Chapter 27 Enforcement of foreign judgments and arbitral awards outside the
Brussels and Lugano Conventions
Chapter 28 Judgments and settlements within a European judgments regime
APPENDICES
Appendix 1 Statutes
Appendix 2 Council Regulation (EC) No 44/2001 of 22 December 2000
Appendix 3 Civil Jurisdiction and Judgments Order 2001 No 3929
Appendix 4 Conventions Index
Detailed Table of Contents

Preface Table of Cases Table of Statutes
Table of Statutory Instruments
Table of Conventions and Treaties
INTRODUCTION. MARITIME CLAIMS AND THEIR CONSEQUENCES

1. The tripartite nature of maritime claims
2. The relevance of a foreign element
3. Statutory and Convention development Statutes Conventions enacted into
English law Civil Jurisdiction and Judgments Acts 1982, 1991 and Order 2001 Further
developments
4. Matching statute and convention
PART I. JURISDICTION AND MODES OF ENFORCEABILITY
CHAPTER 1. SOURCES OF ADMIRALTY JURISDICTION
1. The Admiralty framework of the Supreme Court Act 1981

(i) The list of claims (section 20)
(ii) The “maritime lien” (section 2 1(3))
(iii) Actions “in personam” and actions “in rem” (section 21)
2. Sources outside the Supreme Court Act 1981 Admiralty, common la w
and equity Statutes, judicial creativity and Admiralty Statutes as to a jurisdictional
source The Civil Jurisdiction and Judgments Act 1982 (as amended) and Order 2001 and
maritime claims
3. Conclusion
CHAPTER 2. THE NATURE OF MARITIME CLAIMS
1. Heads of jurisdiction—the framework of the Supreme Court Act 1981 Section

20(1)(a), (2), (4), (5), (6) Section 20(1)(b), (3) Section 21(3) Section 20(1)(c) Section
20(1)(d)
(i) The application of the framework despite foreign connections
Jurisdiction The applicable law
(ii) Jurisdiction based on the past and the future A. Looking to the past B. Looking
to the future
2. Other than the Supreme Court Act 1981
3. Categories of enforceability Claims enforceable by action “in rem” Claims
enforceable by action “in personam”
PART II. JURISDICTION OF ENGLISH COURTS AND ARBITRAL

TRIBUNALS
CHAPTER 3. JURISDICTION BASES FOR ENFORCEMENT OF

MARITIME CLAIMS
1. Jurisdiction to decide substantive jurisdiction

2. The substantive “jurisdiction base” Service of process and jurisdiction
bases The development of jurisdiction bases
3. Particular jurisdiction bases 1. Convention texts directly enacted 2.
Conventions reflected in English law 3. Conventions in force to which the United
Kingdom is not a party
4. Generally applicable jurisdiction bases The European jurisdiction
conventions and regulation
CHAPTER 4. THE JURISDICTION AND JUDGMENT REGULATION AND

CONVENTION—BOUNDARIES AND STRUCTURE
1. The general pattern The Regulation and Convention on Jurisdiction and

Judgments Connections with the Community Interpretation of the Regulation and
Convention The role of national laws Relati onship with other Conventions Application
within the United Kingdom Application to other United Kingdom territories
2. The applicability of the Regulation or Convention 1. The subject-matter—
“civil or commercial matters” 2. Proceedings to which the Regula tion or Convention
applies
3. Consideration of jurisdiction by the adjudicating court
1. Declining jurisdiction
2. Stay of proceedings
CHAPTER 5. FORUM LAW OR COMMUNITY REGIME?
1. The basic dichotomy Applicable regime or national law?

2. Applicability of national law of the forum A. Where defendant is not
domiciled in a Member State B. Extension of scope of national law rules (Articles 2, 4)
C. Limitation actions
3. Applicability of the Regulation or Convention regime
1. Criteria of applicability other than the defendant's domicile
2. The domicile of the defendant in a contracting State
CHAPTER 6. REGULATION 44/200 1 AND THE BRUSSELS

CONVENTION—JURISDICTION ALLOCATION IN INITIAL PROCEEDINGS
1. Reference to another Convention The scope and effect of the reference

2. Conventions relevant to enforcement of maritime law claims
3. Mandatory allocation of jurisdiction 4. Optional allocation of jurisdiction
(i) Claims for limitation of liability
(ii) Where the defendant is domiciled in a contracting State
CHAPTER 7. JURISDICTION AS BETWEEN ENGLAND, SCOTLAND

AND NORTHERN IRELAND
1. Regime allocation to a place in the United Kingdom

2. Domestic allocation following allocation to the United Kingdom as a whole
3. The intra United Kingdom structure Applicability of the adapted
framework
CHAPTER 8. THE LUGANO CONVENTION — DIVERGENCES

FROM REGULATION 44/200 1 OR THE BRUSSELS CONVENTION
1. Applicability of Article 57—priority of other conventions

2. Individual employment contracts (i) Jurisdiction agreements (Article 17) (ii)
Place of performance (Article 5(1))
3. Relationship to Brussels Convention (Article 54B)
CHAPTER 9. ENFORCEMENT OF MARITIME CLAIMS BY AN ACTION

“IN PERSONAM”
1. The claims for which an action “in personam” is available

2. Procedure of enforcement The Civil Procedure Rules 1998 Jurisdictional aspects
The hearing of maritime claims Admiralty claims Commercial claims
3. Nature of the action “in personam” as compared to the action “in rem”
4. Jurisdiction in actions “in personam”
5. Jurisdiction through service of a claim form
6. The “in personam” claim form
7. Service in England Individuals Service in England to avoid service out?
Corporations
8. Steps following service Acknowledgement of service Particulars of claim
and defence
9. Through an action “in rem” Failure to acknowledge service or issue
Action in relation to arrest The concept of “ in rem” submission “in personam”
10. Service of a claim form outside England Service not requiring permission
Service requiring permission The claimant's task when permission is required
Categories of claim for serving out The appropriate forum Service of the claim form
11. Submission to the jurisdiction
A. Through procedural steps
B. Through submission before the court
12. Remedies available
A. On the merits
B. Interim remedies—the “freezing injunction”
13. County court jurisdiction
CHAPTER 10. ENFORCEMENT OF MAR ITIME CLAIMS BY AN

ACTION “IN REM”
1. Availability of the action “in rem” Admiralty claims excluded from “ in

rem” jurisdiction
2. The nature of the action “in rem” The action in rem, lien and arrest
Personification The procedural view A third view —suggested origin of Admiralty liens
in hypothec and deodand The relevance of the three views
3. Claims for which action “in rem” is available under section 21(2)-(4) (i)
Maritime liens (section 2 1(3)) (ii) In relation to claims within section 20(2)(e) -(r) (iii)
In relation to claims and questions within section 20(2)(a), (b), (c), (s) The
“sweeping up” clause
4. Jurisdiction prerequisites other than the Supreme Court Act 1981 Link
between the issue and England required for an action “in rem” to be brought
5. Procedure of an action “in rem” Jurisdiction “in rem” Commencement
Acknowledgment and amendment of the claim form Persons other than defendants
Duration of action “in rem”
6. The interrelationship of action “in personam” and action “in rem”
7. County court jurisdiction
CHAPTER 11. DELAY IN SUIT
1. Effect of delay Delay and the Civil Procedure Rules (CPR) Extinguishment of
right or remedy? Avoidance of effect of delay
2. Aspects of delay 1. Effect of foreign time bar 2. Notice of the claim
3. Commencement of suit—issue of claim form
3. Delay in service of claim form
4. Delay in complying with the procedural requirements
5. Abuse of process and want of prosecution
6. Delay in assertion of the remedy Judgment on order on the merits Provisional
remedies
CHAPTER 12. RESTRICTIONS ON JURISDICTION
1. The Regulations and Brussels and Lugano Conventions—“multiple

proceedings” As between a Member State and non -Member State Powers and
duties of the courts
Elements of the provisions
2. Restrictions on English proceedings other than under the Brussels or Lugano
Convention
1. Inherent jurisdiction to stay proceedings
2. Foreign forum agreements
3. Arbitration agreements
4. The appropriate forum—“forum conveniens”
5. Issue estoppel and cause of action estoppel
6. Sovereign immunity
7. Jurisdiction restrictions relating to specific types of claims
8. Abuse of process
CHAPTER 13. ARBITRATION
1. English law and international agreements The UNCITRAL model law—

transnational arbitration The New York conventions on the recognition and enforcement
of foreign arbital awards 1958 The Geneva convention on the execution of foreign
awards 1923 The convention on the law applicable to contractual obligations 1980
EC Regulation 44/200 1 and the Brussels and Lugano Conventions Other Conventions
Arbitration and litigation Arbitrations and English law Enforceability of arbitration
agreements in English law
2. The English statutory framework—The Arbitration Act 1996 The general
framework Review of and appeal to courts from arbitration decisions
3. Delay in arbitration proceedings In commencement of proceedings Delay in
prosecution of proceedings
4. The arbitration award and its enforcement English arbitration awards Foreign
arbitration awards
PART III. INTERIM RELIEF
CHAPTER 14. NATURE AND BASIS OF INTERIM RELIEF
1. Types of relief and procedure

1. In favour of the claimant
2. In favour of the defendant
3. Interim relief in arbitration proceedings
2. EC Regulation 44/2001 and the Brussels and Lugano Conventions Interim relief
in favour of the defendant
3. Measures after judgment EC Regulation 44/200 1 and the Brussels and Lugano
Conventions
CHAPTER 15. ARREST AND ALTERNATIVE SECURITY
1. Introduction The three functions of arrest Alternative security

2. The international scene Convention Relating to the Arrest of Sea-Going Ships 1952
The Collision (Civil Jurisdiction) Convention 1952 The Hamburg Rules 1978 Convention
on the Contract for the International Carriage of Goods by Road 1956 (the CMR)
Conventions relating to Limitation of Liability 1924, 1957 and 1976 Summary
3. The arrest framework in English law Arrest and the action “in rem” Arrest as
security Counter security? Property liable to arrest Arrest warrant and in rem claim
Stage in proceedings when arrest available Restrictions on availability of arrest
Arrest procedure Marshall's powers during arrest “Wrongful” arrest Termination of
arrest—release
4. Judicial sale
5. Security alternative to arrest Security in substitution for arrest
6. Arrest and detention under legislative powers
7. Arrest and execution of judgment
CHAPTER 16. THE “FREEZING” INJUNCTION
1. Nature and purpose

2. Roots and development English and foreign elements
3. Requirement of an undertaking by applicant in damages and expenses Damages
Expenses Other proceedings Case to be made by the applicant/claimant Risk of
dissipation of assets and likely default
4. Ancillary orders in aid of the injunction Order for disclosure of assets
5. Effect of the injunction In relation to the defendant In relation to third parties
6. The form of the order—the “maximum sum” approach
7. Comparison of arrest and the freezing injunction as provisional remedies—a
summary
PART IV. SECURITY ON THE MERITS—THE LIEN CONCEPT
CHAPTER 17. NATURE AND DEVELOPMENT OF LIENS
1. The nature of a “lien”—or what's in a word? Lien and mortgage Lien and charge
2. The development of liens in English law A. A common law, equity and statute B.
Admiralty
3. Which lien and when? One lien or more? Priorities
4. Foreign liens
5. Liens and the registration of interests
6. Insolvency and liens 1. Companies 2. Individuals—bankruptcy
7. Maritime liens, statutory liens in Admiralty and the action “in rem”
1. The categories of claim enforceable by action “in rem”
2. The Supreme Court Act 1981 and the action “ in rem”
3. Remaining uncertainties of the scope of the lien in Admiralty
4. Lien and action “in rem”
CHAPTER 18. MARITIME LIENS
1. Claims to which a maritime lien may attach

2. Consequences of attracting a maritime lien
3. The nature of the maritime lien
1. The maritime lien and the action “in rem”
2. The “maritime lien” as a legal category of claims
3. The modern maritime lien and statutory lien in Admiralty compared
4. The maritime lien—procedure or substance?
4. Assets subject to a maritime lien
1. A ship
2. Other property
5. Enforceability of maritime liens Procedure or personification Different aspects of
enforceability
6. Transferability of maritime liens
1. Voluntary transfer
2. Involuntary transfer
7. Extinction of maritime liens
1. Immunity from suit
2. Delay of suit
3. Effect of stay of proceedings
4. Provision of security
5. Bankruptcy and liquidation
6. Agreement, waiver and estoppel
7. Destruction of the property
8. Judgment or arbitration award on the merits
9. Sale by the court
8. The international framework relating to maritime liens
1. The Convention of 1926
CHAPTER 19. STATUTORY LIENS IN ADMIRALTY
1. The action “in rem” and statutory liens in Admiralty

2. Nature of the “statutory lien”
1. Origins and early development
2. The Supreme Court Act 1981—the present framework for the action “in rem”
3. “The statutory lien in Admiralty”—is it to be equated with the action “in rem”?
4. Summary
3. Creation of the lien
4. Assets subject to the lien
1. Claims under section 21(4)
2. Claims under section 21(2) or section 20(1)(c)
5. Transferability
6. Termination
7. The legal consequences of attracting the action “in rem”—a summary
CHAPTER 20. POSSESSORY LIENS
1. Nature of a possessory lien

2. Assets subject to the lien 3. Common law possessory liens (applying to but
not created primarily in maritime law)
1. Generally applicable principles
2. General liens
3. Particular liens
4. Maritime possessory liens Maritime and other possessory liens Claims to which
maritime possessory liens attach by usage Enforceability, enforcement and termination
The individual liens Claims to which maritime possessory liens attach by statute
CHAPTER 21. EQUITABLE LIENS
1. The substance of the lien Equitable lien and equitable charge Reservation of title
clause
2. The equitable lien in Admiralty
3. Creation of the lien
1. By contract
2. Arising from the relationship of the parties
3. Arising from a course of conduct
4. Enforceability of the lien
1. Against third parties
2. Tracing into other assets
5. Transferability
6. Termination
CHAPTER 22. CREATING A LIEN BY CONTRACT
1. The lien clause —general considerations Common clauses Multi-lien clauses The
lien clause in context
2. The liens created
1. Owner's lien on cargo
2. Owner's lien on subfreights or sub-hire
3. Charterer's lien on ship
4. Lien not to be suffered or permitted to continue
3. Charterer's liability dependent on exercise of owner's lien—a “cesser clause”
4. The need for registration 5. The governing law
CHAPTER 23. PRIORITIES
1. The general problems of priority

2. Principles of priority in English law
1. The basic principles of “in personam” priority
2. The Admiralty rules of priority “ in rem”
3. Priority between “in rem” and “in personam” claims
3. The priority structure of English law
1. Title (or ownership)
2. Use for a specified period of time
3. Security interests
4. Priority relationship between actions “in rem” and “in personam” proprietary
interests
1. Ownership
2. Mortgage, charge and lien
3. Interests created by statute
4. The execution creditor
5. Effect of sale by the court in action “ in rem”
6. Summary
5. Attempts at international frameworks—mortgage and liens
PART V. REMEDIES CHAPTER
24. LIMITATION OF LIABILITY
1. The general principle The link between liability and limitation proceedings
2. International limitation frameworks Global limitation Limitation for particular
claims in addition to “global” limitation
3. Limitation of liability in English law The general pattern
1. Global limitation
2. Oil pollution claims
3. The Pilotage Act 1987
4. Dock and canal owners, harbour and conservancy authorities
CHAPTER 25. REMEDIES DETERMINATIVE OF SUBSTANTIVE ISSUES
1. Finality of litigation—the effect of a judgment or arbitration award

2. Remedies generally and in Admiralty
1. The remedy awarded
2. Enforcement of judgments of English courts
PART VI. FOREIGN LAW
CHAPTER 26. APPLICATION OF FOREIGN LAW
1. The English approach

1. The four stage process
2. Limitations on the selection process
3. Choice of law and jurisdiction
4. Maritime claims and the English choice of law process
2. Alternative approaches to selection by classification qualified by public policy
3. The categories and their selection rules
1. Substance or procedure
2. Choice of law for substantive issues
4. Summary
CHAPTER 27. ENFORCEMENT OF FOREIGN JUDGMENTS AND ARBITRAL

AWARDS OUTSIDE THE EUROPEAN REGIMES
1. Foreign judgments Application of merger and issue estoppel Competing foreign

judgments Recognition and enforcement
2. Arbitral awards As between parts of the United Kingdom Awards made outside the
United Kingdom
CHAPTER 28. JUDGMENTS AND SETTLEMENTS WITHIN A EUROPEAN

JUDGMENTS REGIME
1. The general pattern Judgments The link between recognition and enforcement
“Authentic instruments” and court settlements
2. Judgments within the regimes “Civil or commercial matters” Connection
with a member State Types of judgments
3. The jurisdiction of the recognising or enforcing court
4. Grounds of non-recognition or non-enforcement 1. Relevance of jurisdiction of
adjudicating court 2. Grounds other than jurisdiction of the adjudicating court
5. The recognition and enforcement process
1. Recognition
2. Enforcement
6. Appeals against recognition or enforcement decision
1. Measures of enforcement during period for appeal
2. Stay of recognition or enforcement appeal proceedings pending appeal in state of
origin
3. Appeal against declaration of enforceability 4. Appeal against refusal of
enforcement 5. Further appeal
APPENDICES
APPENDIX 1. STATUTES Administration of Justice Act 1956, sections 45-50 (as

amended) Supreme Court Act 1981, sections 20 -24 (as amended) Civil
Jurisdiction and Judgments Act 1982 Contracts (Applicable Law) Act 1990
APPENDIX 2. COUNCIL REGULATION (EC) NO 44/2001 OF 22 DECEMBER 2000
APPENDIX 3. THE CIVIL JURISDICTION AND JUDGMENTS ORDER 2001 NO

3929 Admiralty Claims Practice Direction
APPENDIX 4. CONVENTIONS International Convention for the Unification of

Certain Rules Relating to the Arrest of Sea-Going Ships, Brussels, 10 May 1952
International Convention on Certain Rules Concerning Civil Jurisdiction in Matters
of Collision, Brussels, 10 May 1952 International Convention on Maritime Liens and
Mortgages 1993
Index
Table of Cases
A v. B [1984] 1 All E.R. 265 20.21, 20.24
A v. B [1989] 2 Lloyd's Rep. 423 16.14
A v. B (X intervening) [1983] 2 Lloyd's Rep. 532 16.45
A v. C (No. 1) [1980] 2 Lloyd's Rep. 200 14.24, 21.15
A and B v. C, D, E, F, G and H (No. 2) [1981] 1 Lloyd's Rep. 559 16.45
A & B v. C & D [1982] 1 Lloyd's Rep. 166 9.95, 13.39
ABB Lummus Global Ltd v. Keppel Fels Ltd (formerly Far East Levingston
Shipbuilding Ltd) [1999] 2 Lloyd’s Rep. 24 13.21
ABC Shipbrokers v. The Ship Offi Gloria [1993] 3 NZLR 576 26.17 1 A Co.
Ltd v. Republic of X [1990] 2 Lloyd's Rep. 520 12.119, 12.120 AEK (Athletic
Union of Constantinople) v. National Basketball Association
[2002] lLloyd's Rep. 305 13.47
AG v. Anderson (1988) The Independent, 31 March 15.94
AGF v. Chiyoda Fire and Marine Co (UK) Ltd [1992] 1 Lloyd's Rep. 325 12.26
AIG Europe (UK) Ltd v. The Ethniki [2000] 2 All E.R. 566; [2000] 1 All E.R.
(Comm) 65; [2000] Lloyd's Rep. I.R. 343 (C.A.); af firming [1998] 4 All E.R. 301;
[1999] Lloyd's Rep. I.R. 221 5.45, 6.146
AIG Europe SA v. QBE International Insurance Ltd [2001] 2 Lloyd’s Rep. 268
5.45, 12.19, 12.59
AJP Pritt, The [1991] I.L.Pr. 194 (Corte di App. (Genoa)) 6.151
ANCAP (Administracion Naci onal de Combustibles Alcohol Y Portland) v.
Ridgley Shipping Inc. [1996] 1 Lloyd's Rep. 570 9.21
APJ Shalin, The [1991] 2 Lloyd's Rep. 62 15.106, 15.120
AS-Autoteile Service GmbH v. Malhe (Pierre) (C220/84) [1985] ECR 2267;
[1986] 3 CMLR 321 (ECJ) 5.29
AS/DS Svendborg D/S v. All Hussein Akar [2003] EWHC 797 25.35
Abbey National Plc v. Frost [1999] 2 All E.R. 206; [1999] Lloyd's Rep. P.N. 301
9.48
Abdullah Ali Almunajem Sons Co. v. Recourse Shipping Co. Ltd (The Reefer
Creole) [1994] 1 Lloyd's Rep. 584 9.100
Abidin Daver, The. See Owners of the Las Mercedes v. Owners of the Abidin
Daver
Ace Insurance SA-NV (formerly Cigna Insurance Co. of Europe SA NV) v. Zurich
Insurance Co. [2001] 1 Lloyd's Rep. 618; [2001] Lloyd's Rep. I.R. 504 (C.A.) 12.14,
12.110
Acrux, The (No. 2) [1962] 1 Lloyd's Rep. 405 23.160, 23.169, 25.58
Acrux, The (No. 3) [1965] P. 391; [1965] 1 Lloyd's Rep. 565 ... 2.41, 2.81, 2.82,
2.121, 2.129, 2.130, 10.23, 19.5, 26.13, 26.14, 26.20, 26.25, 26.6,26.175
Adah, The (1830) 2 Hag. Adm. 326 2.114
Adams v. Cape Industries Plc [1991] 1 All E.R. 929 (C.A.) 9.51, 10.44, 27.34,
27.35, 27.38
Addax BV Geneva Branch v. Coral Suki SA [2004] All E.R. (D) 138 9.45
Aden Refinery Co. Ltd v. Ugland Management Co. Ltd (The Ugland Obo One)
[1986] 2 Lloyd's Rep. 336 (C.A.) 13.50
Adhiguna Meranti, The [1988] 1 Lloyd's Rep. 384 (C.A. (HK) 24.100
Admiralty Commissioners v. Owners of the Valverda [1938] A.C. 173; (1937) 59
Ll. L. Rep. 231 (H.L.) 2.46
Adolf Leonhardt, The [1973] 2 Lloyd's Rep. 318 26.142
Adolf Warski, The and Sniadecki, The [1976] 2 Lloyd's Rep. 241 (C.A.); affirming
[1976] 1 Lloyd's Rep. 107 11.9, 12.76, 12.79, 12.81, 12.83, 26.71
Advent Capital v. Ellinas [2005] EWHC 2005 2.13
Aegean Sea Traders Corpn v. Repsol Petroleo SA (The Aegean Sea) [1998] 2
Lloyd's Rep. 39 24.52, 24.53, 24.58
Aegnoussiotis Shipping Corpn of Monrovia v. Kristian Jebsens Reden of Bergen
AS (The Aegnoussiotis) [1977] 1 Lloyd's Rep. 268 22.17, 22.18
Afala, The. See Interatlantic (Namibia) (Pty) Ltd v. Okeanski Ribolov Ltd
Africano, The [1894] P. 141 23.159
Afro Continental Nigeria v. Meridian Shipping Co SA (The Vrontados) [1982] 2
Lloyd’s Rep. 241 (C.A.) 9.22, 9.72, 9.100, 11.4
Agence Belgo Danoise NV v. Rederij Hapag Lloyd AG (Rechtbank Koophandel
Antwerp) Judgment of 25 July 1976 R CD 1-57-B3 6.53
Agenor, The [1984] LMLN 130 25.36
Aggeliki Charis Compania Maritima SA v. Pagnan SpA (The Angelic Grace)
[1995] 1 Lloyd's Rep. 87 (C.A.) 13.20, 25.17
Agia Skepi, The. See Compania Continental del Peru SA v. Evelpis Shipping
Corpn
Agios Giorgis, The [1976] 2 Lloyd's Rep. 192 22.17, 22.18
Agip SpA v. Navigazione Alta Italia SpA (The Nai Genova and The Nai Superba)
[1984] 1 Lloyd's Rep. 353 (C.A.) 25.42
Agnew v. Inland Revenue Commissioner [2001] UKPC 28; [2001] 2 A.C. 710;
[2001] 3 W.L.R. 454; [2001] Lloyd's Rep. Bank. 251 (P.C.) 21.4
Agnew v. Lansforsakringsbolagens A.B. [2000] 1 A11E.R.727; [1998] I.L.Pr. 231
(C.A.) 6.98, 6.137, 6.138, 6.143, 8.1, 8.9
Agrafax Public Relations Ltd v. United Scottish Society Inc. [1995] TLR 297;
[1995] I.L.Pr. 753 (C.A.) 5.86, 9.75
Agrabele (No. 1), The. See Gebr Van Weelde Scheepvaart Kantoor BV v. Homeric
Marine Services
Ahmed and Patel v. Secretary of State for the Home Department [1998] INLR 570
3.8
Aifanourios, The. See West of Scotland Ship Owners Mutual Protection and
Indemnity Association (Luxembourg) v. Aifanourios Shipping SA
Airbus Industrie GIE v. Patel [1998] 1 Lloyd’s Rep. 631 (H.L.) 15.96, 25.15,
25.16, 25.18, 28.57
Air Foyle Ltd v. Center Capital Ltd [2004] I.L.Pr. 15 26.183, 27.1
Akai Pty Ltd v. People's Insurance Co. Ltd [1998] 1 Lloyd's Rep. 90; [1999] I.L.Pr.
24 12.66, 25.17, 25.20, 26.71, 27.39
Akerblom v. Price Potter Walker & Co. (1881) L.R. 7 Q.B.D. 129 (C.A.) 26.150
Akzo Nobel NV’s European Patent (No.189958) [1997] TLR 522 5.28
Al Battani, The [1993] 2 Lloyd’s Rep. 219 12.75, 12.77, 12.79, 12.82, 12.102
Al-Naimi (t/a Buildmaster Construction Services) v. Islamic Press Agency Inc.
[2000] 1 Lloyd's Rep. 522 (C.A.) 12.54, 13.41, 13.53
Al Tabith and Alanfushi, The [1995] 2 Lloyd's Rep. 336 (C .A.) 11.4, 11.25
Al Wahab, The. See Amin Rasheed Shipping Corpn v. Kuwait Insurance Co.
Alaskan Trader (No. 2), The. See Clea Shipping Corpn v. Bulk Oil International
Albany and Marie Josaine. The [1983] 2 Lloyd's Rep. 195 11.25
Albeko Schuhmaschinen AG v. Kamborian Shoe Machine Co. (1961) 111 L.J. 519
26.59
Albemarle Supply Co. Ltd v. Hind & Co. [1928] 1 K.B. 307 (C.A.) 23.116
Alcom v. Columbia [1984] 2 All E.R. 6; [1984] 2 Lloyd's Rep. 24 (H.L.) 12.119
Aldington Shipping Ltd v. Bradstock Shipping Corpn (The Waylink and The Brady
Maria) [1988] 1 Lloyd's Rep. 475 (C.A. (Gib.)) 24.100
Alexander, The (1811) 1 Dods 282 15.52
Alexander Larsen, The (1841) W. Rob. 288 18.13
Alexandros G Tsavilis, The [1993] LMLN 369 23.9
Algrete Shipping v. IOPC Fund [2003] 1 Lloyd's Rep. 2237 2.15 1
Ali Fahd Shobokshi Group v. Moneim [1989] 1 W.L.R. 710; [1989] 2 All E.R. 404
16.40
Aliakmon, The. See Leigh and Sillivan Ltd v. Aliakmon Shipping Co. Ltd
Alina, The (1880) L.R. 5 Ex. D. 227 (C.A.) 2.179, 2.192
Aline, The (1839) 1 W. Rob. 111 2.99, 23.134, 23.144
Alletta, The [1974] 1 Lloyd's Rep. 40 11.37, 14.84, 15.63, 15.64, 15.67, 15.139
Allgemeine Treuhand, AG v. Owners of the Arosa Kulm (The Arosa Kulm) (No.2)
[1960] 1 Lloyd's Rep. 97 2.81, 26.24
Allianz Versicherungs AG v. Fortuna Co. Inc. (The Baltic Universal) [1999] 1
Lloyd's Rep. 497 13.54
Allied Arab Bank v. Hajjar (1988) The Times, 18 January 16.2
Allpac Holding BV v. Maier am Tor [1982] ECC 200 (Hof (Amsterdam)) 5.37
Alltrans Inc. v. Interdom Holdings Ltd [1991] 2 Lloyd's Rep. 571 (C.A.) 14.63
Ally, The [1952] 2 Lloyd's Rep. 427 20.7, 20.12, 20.36, 23.116
Almare Societa di Navigazione SpA v. Derby & Co Ltd (The Almare Prima)
[1989] 2 Lloyd's Rep. 376 13.1
Alnwick, The [1965] P. 357; [1965] 1 Lloyd's Rep. 320 (C.A.) 11.25
Alpina Compagnia di Assicurazione SA v. Agenzia Marittima LV Ghianda Snc
(The Ice Express) [1990] I.L.Pr. 263 (Trib. (I.)) 5.49
Aluflet SA v. Vinave Empresa de Navegacao Maritima Lda (The Faial) [2000] 1
Lloyd’s Rep. 473 2.192, 10.39
Aluminium Industrie Vaassen BV v. Romalpa Aluminium [1976] 2 All E.R. 552;
[1976] 1 Lloyd's Rep. 443 (C.A.) 23.17, 25.41
Amazona, The. See Sierra Leone v. Marmaro Shipping Co.
Amazonia, The. See Furness Withy (Australia) Ltd v. Metal Distributors (UK) Ltd
Ambatielos, The and The Cephalonia, The [1923] P. 68 2.112, 2.113
American Cyanamid Go. v. Ethicon Ltd [1975] A.C. 396; [1975] 2 W.L.R. 316;
[1975] 1 All E.R. 504 (H.L.) 14.21
American Motorists Insurance Co. (AMICO) v. Cellstar Corpn [2002] EWCA Civ
206 (C.A.) 26.105A, 26.118
American Specialty Lines Insurance Co. v. Abbot Laboratories [2003] 1 Lloyd’s
Rep. 267 25.17
Amin Rasheed Shipping Corpn v. Kuwait Insurance Co. (The A1 Wahab) [1983] 2
All E.R. 884; [1983] 2 Lloyd's Rep. 365 (H.L.) 26.56, 26.57
Ammerlaan Agro Projecten BY v. Les Serres de Cosquerou [1999] I.L.Pr. 627
(Cour de Cass. (F.)) 6.186
Amoco (UK) Exploration Co. v. British American Offshore Ltd (Service of
Process) [1999] 2 All E.R. (Comm.) 201; [1999] 2 Lloyd's Rep. 772 9.87, 9.91, 25.11,
25.15
Andalina, The (1886) L.R. 12 P.D. 1 18.39
Anderton v. Clwyd CC [2002] EWCA Civ 953; [2002] 2 All E.R. 813 (C.A.) 0.12,
9.22, 9.24, 9.34
Andre Theodore, The (1904) 10 Asp. M.L.C. 94 2.184, 26.24
Andrea Merzario Ltd v. Internationale Spedition Leitner Gesellschaft GmbH
[2001] EWCA Civ 61; [2001] 1 Lloyd's Rep. 490 (C.A.) 6.54
Andrea Ursula, The. See Medway Drydock and Engineering Co. v. Owners of the
MV Andrea Ursula
Andrew Weir Shipping Ltd v. Wartsila UK Ltd [2004] 1 Lloyd's Rep. 1 6.191
Andria, The. See Owners of the Vasso v. Owners of Cargo Lately Laden on Board
the Vasso
Andrico Unity, The 1989 (4) S.A. 325 (A): 26.171
Anema BV v. Broekman Motorships BV (Case 4127/86) [1991] I.L.Pr. 285 (RB
(Rotterdam)) 5.51
Angel Bell, The. See Iraqi Ministry of Defence v. Arcepey Shipping Co. SA and
Gillespie Bros & Co Ltd
Angelic Grace, The. See Aggeliki Charis Compania Maritima SA v. Pagnan SpA
Anglo Irish Beef Processors International v. Federated Stevedores Geelong [1997]
1 Lloyd's Rep. 207 (Sup. Ct (Vic.)) 11.18
Anichab, The (No. 2) [1921] P. 218; (1921) 6 LI. L. Rep. 561 2.135
Anna H, The [1995] 1 Lloyd's Rep. 11 (C.A.); affirming [1994] 1 Lloyd'sRep. 287
5.34, 9.65, 11.65, 14.78, 15.12, 15.24, 15.25, 15.69, 15.72, 15.134
Anna L, The. See Leond Maritime Inc. v. MC Amethyst Shipping Ltd
Annandale, The (1877) 2 P.D. 218 2.132
Annangel Glory Compania Naviera SA v. M. Golodetz Ltd (The Annangel Glory)
[1988] 1 Lloyd's Rep. 45 17.10, 17.20, 21.11, 22.21, 22.23, 23.55, 23.62, 23.69, 23.94,
23.95
Annette, The [1919] P. 105 12.156
Antaios Compania Naviera SA v. Salen Redenerna AB (The Antaios) [1984] 2
Lloyd's Rep. 235 (H.L.) 13.49
Antares Shipping Corpn v. The Ship "Capricorn" [1978] DLR (3d) 28; [1973] F.C.
955 25.64
Antares (No. 1), The. See Kenya Railways v. Antares Co. Pte Ltd
Anterist v. Credit Lyonnais (C22/85) [1986] ECR 1951; [1987] 1 CMLR 333
(ECJ) 5.68
Anton Durbeck GmbH v. Den Norske Bank ASA (The Tropical Reefer) [2003] 2
W.L.R. 1286; [2004] 1 Lloyd's Rep. 1 6.178, 15.116
Anton Piller KG v. Manufacturing Processes Ltd [1976] Ch. 55; [ 1976] 2 W.L.R.
162; [1976] 1 All E.R. 779 (C.A.) 14.16
Antonis P. Lemos, The. See Samick Lines Co. v. Owners of the Antonis P. Lemos
Aprile Sri v. Amministrazione delle Finanze dello Stato (C228/96) [2000] 1 WLR
126; [1998] ECR I—7141 (ECJ) 3.12
Andres Bonifaco, The [1994] LMLN 382 (H.C. Sing.) 10.45
Arab Business Consortium International Finance & Investment Co. v. Banque
Franco-Tunisienne [1997] 1 Lloyd's Rep. 531 (C.A.); [1996] 1 Lloyd's Rep. 485 27.63
Arab Monetary Fund v. Hashim (No. 2) [1990] 1 All E.R. 673 14.16
Arab Monetary Fund v. Hashim (No. 8) [1989] 3 All E.R. 461 14.16
Arab Monetary Fund v. Hashim (No. 9) [1993] 1 Lloyd's Rep. 543 11.7, 26.34
Arantzazu Mendi, The [1939] A.C. 256; (1939) 63 Ll. L. Rep. 89 (H.L.) 10.16,
15. 106
Aratra Potato Co. Ltd v. Egyptian Navigation Co. (The El Amria) [1981] 2 Lloyd's
Rep. 119 (C.A.) 12.76, 12.78, 12.81, 12.83, 24.98, 26.71
Arbuthnot Latham Bank Ltd v. Trafalgar Holdings Ltd [1998] 2 All E.R. 181 (C.A.)
11.2
Arctic Explorer. The [1984] AMC 2413 24.119
Arctic Star. The (1985) The Times, 5 February (C.A.) 15.73, 15.74, 15.136, 18.99,
18. 106
Aries Tanker Corpn v. Total Transport Ltd (The Aries) [1977] 1 Lloyd’s Rep. 334;
[1977] 1 All E.R. 398 (H.L.) 11.3, 11.18
Arina, The (1886) 12 P.D. 119 2.88
Armar Shipping Co. v. Caisse Algerienne d'Assurance et de Reassurance (The
Armar) [1981] 1 All E.R. 498; [1980] 2 Lloyd's Rep. 450 (C.A.) 26.56, 26.57, 26.154,
26.156, 26.157
Aro Co. Ltd, Re [1980] Ch. 196; [1980] 2 W.L.R. 453; [1980] 1 All E.R. 1067
(C.A.) 15.49, 17.29, 18.113, 19.10
Arochem v. Wilomi 962 F. 2d 496 (1992) 26.169
Arosa Kulm (No. 2), The. See Allgemeine Treuhand. AG v. Owners of the Arosa
Kulm
Arosa Star. The [1959] 2 Lloyd's Rep. 396 (Sup. Ct. (Ber.)) 2.81, 26.24
Arraiz, The (No. 1) (1924) 19 Ll. L. Rep. 235 11.24, 11.25
Arros Invest Ltd v. Nishanor [2004] EWHC 57 9.100
Arum, The [1921] P. 12: (1920) 5 Ll. L. Rep. 25 26.123
Arzpeta, The (1921) 15 Asp. M.L.C. 426 26.24
Ascot Commodities NV v. Northern Pacific Shipping (The Irini A) (No. 2) [1999]
1 Lloyd's Rep. 189 12.112, 27.34, 27.36
Ashingdane v. United Kingdom (A/93) (1985) 7 EHRR 528 0.18
Ashtiani v. Kashi [1986] 2 All E.R. 970 (C.A.) 16.20
Ashurst v. Pollard [2001] 2 All E.R. 75 (C.A.); affirming [2000] 2 All E.R. 772
4.27
Asianac International Panama SA and Transocean Transport Corpn v. Transocean
Ro-Ro-Corp (The Seaspeed America) [1990] 1 Lloyd's Rep. 150 11.25
Askin v. Absa Bank Ltd [1999] T.L.R. 127 12.103
Assertion of Set-Off and Counterclaim. Re [2003] I.L.Pr. 543 (Reg. C.A.
(Rostock)) 6.197
Assicurazioni Generali SpA v. Arab Insurance Group (BSC) [2003] 1 W.L.R. 577
9.4
Assunzione. The (No. 1) [1954] P. 150; [1953] 2 Lloyd's Rep. 716 (C.A.) 26.57,
26.69
Astro Exito Navegacion SA v. W.T. Hsu (The Messiniaki Tolmi) [1984] 1 Lloyd's
Rep. 266 (C.A.) 9.56, 9.60
Astro Exito Navegacion SA v. Southland Enterprise Co. (The Messiniaki Tolmi)
(No. 2) [1983] 3 W.L.R. 130; (H.L.); affirming [1982] Q.B. 1248; [1982] 3 W.L.R. 296;
[1982] 3 All E.R. 335 (C.A.) 14.30
Astro Vencedor Compania Naviera SA of Panama v. Mabanaft GmbH (The
Damianos) [1971] 2 Q.B. 588; [1971] 1 Lloyd's Rep. 502 (C.A.) 15.117
Astro Venturoso Compania Naviera v. Hellenic Shipyards SA (The Mariannina)
[1983] 1 Lloyd's Rep. 12 (C.A.) 13.32
Athena, The (Ships Necessaries: Priorities) (1921) 8 L l. L. Rep. 482 23.141
Athenic, The (Practice Note) (1932) 42 Ll. L. Rep. 7 23.122
Athens Cape Naviera SA v. Deutsche Dampfschiffahrts-Gesellschaft Hansa AG
(The Barenbels) [1985] 1 Lloyd's Rep. 528; (C.A.); affirming [1984] 2 Lloyd's Rep.
388 2.41, 15.109, 18.3, 22.4
Athol, The (1842) 1 W. Rob. 374 12.134
Atlantic Emperor, The. See Marc Rich & Co. AG v. Societa Italiana Impianti SpA
(The Atlantic Emperor)
Atlantic Song, The [1983] 2 Lloyd's Rep. 394 12.81
Atlantic Span, The [1987] ETL 40 (Rech. Van Koop. An twerp) 5.55
Atlantic Star, The. See Owners of the Atlantic Star v. Owners of the Bona Spes
Atlantic Telecom GmbH, Re [2004] Scots CS 152 26.8, 26.51
Atlantis Two, The [1998] LMLN 495 (Fed. Ct (Can.)) 23.9
Atlas, The (1827) 2 Hag. Adm. 48 2.101
Atlas Maritime Co. SA v. Avalon Maritime Ltd (The Coral Rose) (No. 1) [1991] 1
Lloyd's Rep. 563 (C.A.) 10.44
Atlas Maritime Co, SA v. Avalon Maritime Ltd (The Coral Rose) (No. 3) [1991] 2
Lloyd's Rep. 374 (C.A.) 10.44, 16.46
Atlas Pride, The [1994] LMLN 388 (H.C. (Si ng.)) 15.65
Atlas Shipping Agency (UK) Ltd v. Suisse Atlantique Societe d'Armement
Maritime SA (The Gulf Grain and The El Amaan) [1995] 2 Lloyd's Rep. 188; [1995]
I.L.Pr. 600 6.134
Atle Marine v. Owners of the Skylark (The Skylark) [1965] 2 Lloyd's Rep. 25 0
2.131
Attika Hope, The. See G & N Angelakis Shipping Co. SA v. Compagnie National
Algerienne de Navigation
Attock Cement Co. Ltd v. Romanian Bank for Foreign Trade [1989] 1 Lloyd's Rep.
572 (C.A.) 12.66, 26.55
Attorney General of New Zealand v. Ortiz [1982] 2 Lloyd's Rep. 224 (C.A.);
reversing [1982] 1 Lloyd's Rep. 173 26.9
August Leonhardt, The. See K. Lokumal & Sons (London) Ltd v. Lotte Shipping Co.
Pte Ltd
Australian Commercial Research & Development Ltd v. ANZ McCaughan
Merchant Bank Ltd [1989] 3 All E.R. 65 12.93
Avant Petroleum Inc. v. Gatoil Overseas Inc. [1986] 2 Lloyd's Rep. 236 (C.A.)
16.44
Aveling Barford Ltd, Re [1988] 3 All E.R. 1019 20.24
Aventicum, The [1978] 1 Lloyd's Rep. 184 10.44
Azov Shipping Co. v. Baltic Shipping Co. [No. 1) [1999] 1 Lloyd's Rep. 68 13.47
BMG Trading Ltd v. AS McKay Ltd [1998] I.L.Pr. 691 (C.A.) 11.9
Babanaft International Co. SA v. Avanti Petroleum Inc. (The Oltenia) [1982] 2
Lloyd's Rep. 99; [1982] 3 All E.R. 244 (C.A.) 13.46
Baccus Srl v. Servicio Nacional del Trigo [1957] 1 Q.B. 438; [1956] 2 Lloyd’s
Rep. 448 (C.A.) 12.115
Babcock v. Jackson 240 N.Y.S. 2d 743 (1963); [1963] 2 Lloyd’s Rep. 286 (US Ct)
26. 126
Baghlaf A1 Zafer Factory Co. BR for Industry Ltd v. Pakistan National Shipping
Co. (No. 1) [1998] 2 Lloyd's Rep. 229 (CA) 9.49, 9.58, 11.9, 12.53, 12.75, 12.76,
12.79, 12.83, 12.84
Baghlaf A1 Zafer Factory Co. BR for Industry Ltd v. Pakistan National Shipping
Co. (No. 2) [2000] 1 Lloyd's Rep. 1 (C.A.) 11.9, 12.84
Bain Clarkson v. Owners of the Ship "Sea Friends" (The Sea Friends) [1991] 2
Lloyd's Rep. 322 2.232, 2.234
Bakarim v. Victoria P. Shipping Co. Ltd (The Tatiangela) [1980] 2 Lloyd's Rep.
193 16.38
Balkanbank v. Taher (No. 2) [1995] 2 All E.R. 904 (C.A.) 14.48, 16.30
Baltic Shipping Co. v. Owners of Cargo on the Mekhanik Evgrafov (The Mekhanik
Evgrafov and The Ivan Derbenev) [1988] 1 Lloyd's Rep. 330 24.75
Baltic Universal, The. See Allianz Versicherungs AG v. Fortuna Co. Inc.
Banco Atlantico SA v. British Bank of the Middle East [1990] 2 Lloyd’s Rep. 504
(C.A.) 12.97, 12.102
Banco Nacional de Cuba, Re [2001] 1 W.L.R. 2039; [2001] 2 Lloyd's Rep. 147;
[2001] Lloyd s Rep. Bank. 203 9.68, 9.70
Bank of America National Trust and Savings Association v. Chrismas (The
Kyriaki) [1993] 1 Lloyd's Rep. 137 11.35
Bank of Baroda v. Vysya Bank Ltd [1994] 2 Lloyd’s Rep. 87 26.16, 26.55, 26.115
Bank of Credit & Commerce Hong Kong Ltd v. Sonali Bank [1995] 1 Lloyd’s Rep.
227 12.93
Bank of Credit and Commerce International SA v. Al-Kaylani [1999] I.L.Pr. 278
3.1
Bank of Scotland v. Seitz 1990 SLT 584; 1990 SCLR 418; [1991] I.L.Pr. 426 (I.H.)
6.124, 6.151, 7.8
Bank of Tokyo-Mitsubishi Ltd v. Baskan Gilda Senayi Ve Pazarlama AS [2004] 2
Lloyd's Rep. 395 5.92, 6.162, 6.163, 12.19
Banters Trust Co. v. PT Jakarta International Hotels and Development [1999] 1
Lloyd's Rep. 910 25.10, 25.17, 25.20
Bankers Trust Co. v. Shapira [1980] 3 All E.R. 353 16.53
Bankers Trust International v. Todd Shipyards Corpn (The Halcyon Isle) [1981]
A.C. 221; [1980] 2 Lloyd's Rep. 325 (P.C.) 2.41, 2.51, 1 7.57, 18.15, 18.19, 18.21-
18.23, 18.99, 23.75, 23.76, 23.126, 26.20, 26.25, 26.32, 26.38, 26.40, 26.41, 26.169,
26.170, 26.171, 26.173. 26.175, 26.189, 27.36
Banque Cantonale Vaudoise v. Waterlilly Maritime Inc. [1997] 2 Lloyd's Rep. 347
5.68, 12.17
Barber v. Lamb (1860) 8 C.B. (N.S.) 95 27.44
Barclays Bank v. Rosenberg [1985] LMLN 147 16.30
Barclays Bank Plc v. Glasgow City Council [1994] 4 All E.R. 865 (C.A.) 6.192.
7.8, 26.146
Barclays Bank of Swaziland v. Hahn [1989] 2 All E.R. 723 (H.L.) 9.49
Barclay-Johnson v. Yuill [1980] 1 W.L.R. 1259 16.15. 16.42
Barenbels, The. See Athens Cape Naviera SA v. Deutsche Dampfschiffahrts-
Gesellschaft Hansa AG
Barings Plc (In Administration) v. Coopers & Lybrand [1997] I.L.Pr. 12 9.76
Barnato, Re [1949] Ch. 258; [1949] 1 All E.R. 515 (C.A.) 25.49
Barros Mattos Junior v. General Securities and Finance Ltd [2004] 2 Lloyd's Rep.
475 26.146
Barton Henderson Rasen v. Merrett and Ernst & Young [1993] 1 Lloyd's Rep. 540
12. 157
Bass Reefer. The [1992] LMLN 335 2.2 18
Bassini v. Santor [1986] Eld 354 5.51
Baumwoll Manufactur Von Carl Scheibler v. Furness [1893] A.C. 8 (H.L.) 18.64
Baytur SA v. Finagro Holdings SA [1992] 1 Lloyd's Rep. 134 (C.A.) 13.17
Bazias 3 and The Bazias 4, The. See Greenmar Navigation v. Owners of Ships
Bazias 3 and Bazias 4 and Sally Line
Beals v. Soldenha 2003 SC 72 27.34
Beazley v. Horizon Offshore Contractors Inc. [2004] EWHC 2555 9.95, 12.66
Beckham v. Drake (1849) 2 H.L. Cas. 579 (H.L.) 18.89
Bee, The (1822) 2 Dods. 498 2.113, 2.217
Behnke v. Bede Shipping Co. Ltd [1927] 1 K.B. 649; (1927) 27 Ll. L. Rep. 24
20.30, 25.42
Bekhor (A. J.) & Co. Ltd v. Bilton [1981] Q.B. 923; [1981] 1 Lloyd's Rep. 491
(C.A.) 16.49, 10.50
Beldis, The [1936] P. 51; (1935) 53 Ll. L. Rep. 255 (C.A.) 2.179, 2.201, 2.203,
2.204, 10.12, 19.10
Belgian Default Judgment, Re (IX ZB 5/91) [1992] I.L.Pr. 528 (BGH (Ger.))
28.63, 28.68
Benarty (No. 2), The. See R. A. Lister & Co. v. EG Thomson (Shipping) Ltd and
PT Djakarta Lloyd
Beneficial Finance Corpn Co. v. Price [1965] 1 Lloyd’s Rep. 5 56 (Sup. Ct.
(N.S.W.)) 2.123
Benincasa v. Dentalkit Srl (C269/95) [1998] All E.R. (EC) 135; [1997] ECR I –
3767 (ECJ) 5.52, 5.86, 6.117
Bergen, The (No. 1) [1997] 1 Lloyd’s Rep. 380 5.42, 6.3, 6.15, 6.16
Bergen, The (No. 2) [1997] 2 Lloyd’s Rep. 710 11.9, 1 2.83
Berghoefer (F.) GmbH & Co KG v. ASA SA (C221/84) [1985] ECR 2699; [1986]
1 CMLR 13 (ECJ) 5.45
Berisford (S. & W.) Plc v. New Hampshire Insurance Co. Ltd [1990] 2 All E.R.
321; [1990] 1 Lloyd’s Rep. 454 5.73, 6.105, 12.66
Berkeley Administration Inc. v. McClelland (Security for Costs) [1990] 2 Q.B.
407; [1990] 2 W.L.R. 1021; [1990] 1 All E.R. 958 (C.A.) 14.37
Berliner Bank AG v. C. Czarnikow Sugar Ltd (The Rama) [1996] 2 Lloyd's Rep.
281 2.67, 18.64
Berliner Bank AG v. Karageorgis [1996] 1 Lloyd's Rep. 426 9.54
Berny, The. See Owners of Cargo Lately Laden on Board the Berny v. Owners of
the Berny
Berostar, The [1970] 2 Lloyd's Rep. 403 18.88
Berris, The 1905 Fo. 497 25.55
Bertie, The (1886) 6 Asp. M.L.C. 26 12.145
Besix S.A. v. Wabag and Anor. (C-256/00) [2004] 1 All E.R. (Comm.) 521 6.128
Best Cheese Corpn v. All-Ways Forwarding International Inc. (1994) 646 LMNL 3
6.45
Beta, The (1869) L.R. 2 P.C. (PC.) 2.69
Betty Ott, The [1992] 1 N.Z.L.R. 655 (C.A. (NZ)) 23.89, 26.13
Biguzzi v. Rank Leisure Plc [1999] 4 All E.R. 934 (C.A.) 9.3, 11.2, 11.2, 11.40,
11.44, 12.157, 16.9
Bineta, The [1967] 1 W.L.R. 121; [1966] 2 Lloyd's Rep. 419 2.122, 23.32
Binning Bros Ltd (In Liquidation) v. Thomas Eggar Verrall Bowles [1998] 1 All
E.R. 409 (C.A.) 9.37
Birchglen, The [1996] 3 F.C. 301 18.91, 18.106, 18.110
Birkett v. James [1978] A.C. 297; [1977] 3 W.L.R. 38; [1977] 2 All E.R. 801
(H.L.) 11.42, 11.44
Bishopsgate Investment Management Ltd (In Liquidation) v. Homan [1994] 3
W.L.R. 1270 (C.A.) 21.16
Black v. Williams [1895] 1 Ch. 408 23.75, 23.83
Black v. Yates [1991] 1 Lloyd's Rep. 181 27.4
Black Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg AG
[1981] 2 Lloyd's Rep. 446 13.37, 26.76, 26.80
Blanche, The (1887) 6 Asp. M.L.C. 272 23.46
Blanckaert and Willems PVBA v. Trost (139/80) [1981] ECR 819; [1982] 2
CMLR 1 (ECJ) 6.172
Blankenstein, The. See Damon Compania Naviera SA v. Hapag-Lloyd International
SA
Blitz, The [1992] 2 Lloyd’s Rep. 441 15.143, 20.59, 23.9, 23.83, 23.115, 23.169
Blue Nile Shipping Co. Ltd v. Iguana Shipping & Finance Inc. (The Happy Fellow)
[1998] 1 Lloyd's Rep. 13 (C.A.); affirming [1997] 1 Lloyd's Rep. 130 12.27, 12.38,
12.50, 12.106, 24.92, 24.114
Blue Wave, The [1982] 1 Lloyd’s Rep. 151 11.9, 12.83
Bock v. Gorriesen (1861) 30 L.J. Ch. 39 20.33
Blohn v. Desser [1962] 2 Q.B. 116; [1961] 3 W.L.R. 719; [1961] 3 All E.R. 1
27.38
Bold Buccleugh, The (1851) 7 Moo. P.C. 267 2.36, 2.47, 2.64, 2.68, 2.78, 10.9,
10.12, 10.13, 11.37, 18.7-18.12, 18.16-18.20, 18.21, 18.49, 18.57
Boleslaw Chrobry, The [1974] 2 Lloyd's Rep. 308 26.142
Bonacina, Re [1912] 2 Ch. 394 (C.A.) 26.59
Bonapart, The (1853) 8 Moo. P.C. 459 18.73
Bonaparte. The (1859) 7 Not.Cas.Supp. 55 2.98
Boocock v. Hilton International Co. [1993] 4 All E.R. 19 (C.A.) 9.50
Bond Worth Ltd. Re [1980] Ch. 228; [1979] 3 W.L.R. 629; [1979] 3 All E.R. 919
23.1, 23.17
Booth v. Phillips [2004] 2 Lloyd's Rep. 457 9.88
Booth Steamship Co. Ltd v. Cargo Fleet Iron Co. Ltd [1916] 2 K.B. 570 (C.A.)
23.114
Borag, The. See Compania Financiera Soleada SA v. Hamoor Tanker Corpn Inc.
Boral Gas, The. See Rashtriya Chemicals and Fertilizers Ltd v. Huddart Parker
Industries Ltd
Borden (UK) Ltd v. Scottish Timber Products Ltd [1981] Ch. 25; [1980] 1 Lloyd's
Rep. 160 (C.A.) 21.16, 23.17, 25.41
Bosma Huygen Meubelimpex BV v. Hacker Kuchen GmbH (Case 3693/85) [1991]
I.L.Pr. 384 6.147, 6.15 1
Boss Group Ltd v. Boss France SA [1996] 4 All E.R. 970 (C.A.) 4.41, 6.135
Bosworth (No. 3), The. See Grand Union (Shipping) Ltd v London Steamship
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Bouygues Offshore SA v. Caspian Shipping Co. (Nos. 1. 3. 4 and 5) [1998] 2
Lloyd's Rep. 461 (C.A.); [1997] 2 Lloyds Rep. 507 12.75, 12.106, 12.107, 24.7, 24.11,
24.28, 24.75, 24.91, 24.92, 24.99, 24.102, 24.105, 24.124, 24.131, 25.20
Bovenkerk, The [1973] 1 Lloyd's Rep. 63 26.142
Bowbelle, The [1990] 1 Lloyd's Rep. 532
15.124, 24.53, 24.80, 24.107
Bowes (Administration of Estate), Re (1886) L.R. 33 Ch. D. 586 20.33
Bowmaker, Ltd v. Wycombe Motors, Ltd [1946] K.B. 505 20.37, 23.112
Bowring (CT) & Co. (Insurance) Ltd v. Corsi & Partners Ltd [1994] 2 Lloyd's
Rep. 567 (C.A.) 14.37, 14.42, 16.31
Boys v. Chaplin [1971] A.C. 356; [1969] 2 Lloyd's Rep. 487 (H.L.) 26.44, 26.123,
26.127, 26.128, 26.131
Bradford & Bingley Building Society v. Seddon (Hancock t/a Hancocks) [1999] 1
W.L.R. 1482; [1999] 4 All E.R. 217; [1999] Lloyd's Rep. RN. 657 (C.A.) 25.1
Bradley v. H. Newsom Sons & Co. [1919] A.C. 16 (H.L.) 18.43
Bragg v. Oceanus Mutual Underwr
Bramarand, The (1968) (unreported) 18.108
Brandao v. Barnett (1846) 3 C.B. 519 20.33
Brazendale & Co. v. Saint Freres SA [1970] 2 Lloyd's Rep. 34 27.64
Bremen, The and Another v. Zapata Offshore Co. (The Chaparral) [1972] 2 Lloyd's
Rep. 315; 407 U.S. 1 (1972) (US Ct) 12.75
Bremer Oeltransport GmbH v. Drewry [1933] 1 K.B. 753; (1933 ) 45 Ll. L. Rep.
133 (C.A.) 2.20 1, 2.203
Brenner v. Dean Witter Reynolds Inc. (C318/93) [1995] All E.R. (EC) 278; [1994]
ECR I-4275; [1994] I.L.Pr. 720 (ECJ) 5.73, 6.119
Brennero SAS v. Wendel GmbH Schuhproduktion International (C258/83) [1984]
ECR 3971; [1986] 2 CMLR 5 (ECJ) 28.85, 28.104
Breydon Merchant, The [1992] 1 Lloyd's Rep. 373 24.76
Bridge Oil Ltd v. Owners and/or Demise Charterers of the Ship Guiseppe di
Vittorio (No. 1) (The Guiseppe di Vittorio) [1998] 1 Lloyd's Rep. 136 (C.A.) 10.42,
10.43, 10.48, 12.117, 15.78
Bridge Oil Ltd v. Owners and/or Demise Charterers of the Ship Guiseppe di
Vittorio (The Guiseppe di Vittorio) (No. 2) [1998] 1 Lloyd's Rep. 661 12.117
Brightlife Ltd, Re [1986] 3 All E.R. 673 21.5
Brink’s-MAT Ltd v. Elcombe [1988] 1 W.L.R. 1350; [1988] 3 All E.R. 188 (C.A.)
14.22
Bristol Airport Plc v. Powdrill [1990] 2 All E.R. 493 (C.A.) 20.16, 20.60
Bristow Helicopters Ltd v. Sikorsky Aircraft Corpn [2004] 2 Lloyd’s Rep. 150
12.98, 25.50, 25.51
British Aerospace Plc v. Dee Howard Co. [1993] 1 Lloyd’s Rep. 368 12.64,
12.66, 12.110
British Airways Board v. Laker Airways Ltd [1984] 3 All E.R. 39 (H.L.) 25.26
British Mexican Petroleum Co. Ltd v. Owners of the Motorship Westport (The
Westport) (No. 1) [1965] 2 All E.R. 167 (Note); [196 5] 1 Lloyd's Rep. 547 15.126,
25.57
British Trade, The [1924] P. 104; (1924) 18 Ll. L. Rep. 65 2.79, 2.81
British Transport Docks Board v. Owners of the Proceeds of Sale of the Charger,
Probe, Vigia, Dideki, Surveyor, Constellation, Errol and Regency (The Charger) (No. 1)
[1966] 1 Lloyd's Rep. 670; [1966] 3 All E.R. 117 15.143, 20.56, 23.9, 23.158, 23.169
Broadmayne, The [1916] P. 64 (C.A.) 12.140
Brodin v. A/R Seljan 1973 S.C. 213: 1973 SLT 198 26.52, 26.64, 26.120
Broken Hill Proprietary Co. Pty Ltd v. Th eodore Xenakis [1982] 2 Lloyd's Rep.
304 9.107
Brond v. Broomhall [1906] 1 K B. 571 2.123, 2.127, 23.32
Brown v. Thornton (1837) 6 Ad. & E. 185 26.46
Brownton Ltd v. Edward Moore Inbucom Ltd [1985] 3 All E.R. 499 (C.A.) 18.78,
23.94
Brunton v. Electrical Engineering Corporation [1892] 1 Ch. 434 23.63, 23.104
Bua International Ltd v. Hai Hing Shipping Co. Ltd (The Hai Hing) [2000] 1
Lloyd's Rep. 300 9.2, 9.38, 9.55, 9.83, 11.2, 11.18, 11.40
Bulgaria, The [1964] 2 Lloyd’s Rep. 524 14.134
Bumbesti, The [1999] 2 Lloyd’s Rep. 481 2.179, 2.203, 2.206, 15.56, 15.67,
15.79, 15.118, 15.120, 8.118, 25.5
Bureau Wijsmuller NV v. Owners of the Tojo Maru (The Tojo Maru) (No. 2)
[1972] A.C. 242; [1971] 1 Lloyd’s Rep. 341 (H.L.) 2.46
Burgis v. Constantine [1908] 2 K.B. 484 (C.A.) 23.75, 23.85
Burnet v. Francis Industries Plc [1987] 1 W.L.R. 802; [1987] 2 All E.R. 323 (C.A.)
10.44
Burns, The [1907] P. 137 (C.A.) 25.60
Burston Finance, Ltd v. Speirway, Ltd [1974] 1 W.L.R. 1648 17.22, 20.20
Byzantio, The [2004] EWHC 3067; [2004 ] All E.R. (D) 219 9.30, 9.34
Byzantion, The (1922.) 12 Ll. L. Rep. 9 15.114, 23.129
C Inc. Plc v. L [2001] 2 Lloyd's Rep. 459 9.40, 16.48
CAN Insurance Co. Ltd v. Office Depot International [2005] All E.R. (D) 325:
[2005] EWHC 456 9.56
CBS United Kingdom Ltd v. Lambert [1982] 3 All E.R. 237 (C.A.) 16.49
CFEM/Facades SA v. Bovis Construction Ltd [1992] I.L.Pr. 561 14.65, 14.68
CILFIT Srl v. Ministro della Sanita (Minister of Health) (C283/81) [1982] ECR
3415: [1983] 1 CMLR 472 (ECJ) 4.11
CMA COM SA v. Classics Shipping Co. Ltd [2004] 1 All E.R. (Comm.) 865
(C.A.) 24.52, 24.53
CN Marine Inc. v. StenaLine A/B (The Stena Nautical (No. 2) [1982] 2Lloyd's
Rep. 336 (C.A.) 20.30, 25.42
Cadle Co. v. Hearley [2002] 1 Lloyd's Rep. 143 26.46
Cahill v. Dawson (1857) 3 C.B. (N.S.) 106 20.26, 20.54
Cala Cristal SA v. Al-Borno (Emran) (1994) The Times, 6 May; [1994] LMLN 383
16.46
Caledonia Subsea Ltd v. Micoperi Srl 2002 SLT 1022 26.116
Caltex Oil (Australia) Pty. Ltd v. The Dredge "Willemstad" (1975-76) 136 C.L.R.
529 (H.C. (Australia)) 2.148, 10.84
Caltex Singapore Pte Ltd v. BP Shipping Ltd [1996] 1 Lloyd's Rep. 286 12.108,
24.7, 24.92, 24.120, 24.123, 24.124, 26.22, 26.45
Caltex Trading Pte Ltd v. Metro Trading International Inc. [1999] 2 Lloyd’s Rep.
724 6.193, 9.56
Campbell International Trading House Ltd v. Van Aart [1993] I.L.Pr. 314 (H.C.
(Irl.)) 6.146, 6.15 1
Campbell Mussells v. Thompson (1984) 81 L.S.G. 2140 16.45
Canada Enterprises Corpn Ltd v. MacNab Distilleries Ltd [1981] Com. L.R. 167
(C.A.) 10.44, 25.67
Canada Trust Co. v. Stolzenberg (No. 1) [1998] I.L.Pr. 30; [1997] EWCA Civ
1545; [1997] 1 W.L.R. 1582; [1997] 4 All E.R. 983; [1997] I.L.Pr. 30 (C.A.) 3.1, 9.55,
14.9, 14.15, 25.8
Canada Trust Co. v. Stolzenberg (No. 2) [2000] 4 All E.R. 481 (H.L.); affirmin g
[1998] 1 All E.R. 318 (C.A.) 5.78, 5.82, 5.88, 5.90, 6.139, 6.184, 9.78
Canadian National S.S. Co. v. Watson [1959] 1 D.L.R. 273 26.12 1
Canadian Pacific (Bermuda) Ltd v. Lagon Maritime Overseas (The Fort Kipp)
[1985] 2 Lloyd's Rep. 168 20.44, 22.5
Cannon Screen Entertainments Ltd v. Handmade Films Ltd, 11 July 1989
(unreported) 12.65, 12.66
Capelloni and Aquilini v. Pelkmans (119/84) [1985] ECR 3147; [1986] 1 CMLR
388 (ECJ) 28.78, 28.85, 28.96, 28.97
Capital Finance Co. Ltd v. Stokes [1969] 1 Ch. 261; [1968] 3 W.L.R. 899; [1968]
3 All E.R. 625 (C.A. ) 23.63 Capitan San Luis, The [1993] 2 Lloyd's Rep. 573 0.35,
24.81
Care Shipping Corpn v. Latin American Shipping Corpn (The Cebu) [1983] 1
Lloyd's Rep. 302 22.17, 22.21, 22.22, 22.26 -22.29
Cargo Ex Galam (1863) 2 Moo. P.C., N.S. 216 23.145
Cargo Ex Schiller (1877) 2 P.D. 145 18.30
Cargo Ex Sultan, The (1859) Swab. 504 2.23
Caribbean Gold Ltd v. Alga Shipping Co. Ltd (The Nova Scotia) [1993] 1 Lloyd's
Rep. 154 9.56
Carmania II. The. See J. & J. Harrison v. Owners of the Carmania II
Carnoustie Universal SA v. ITFW [2002] EWHC 1624; [2003] I.L.Pr. 7 6.192,
12.34
Carrick v. Hancock (1895) 12 T.L.R. 59 27.38
Carron v. Germany (C198/85) [1986] ER 2437; [1987] 1 CMLR 838 (ECJ) 28.89
Carrow Towing Co. v. The Ed McWilliams (1919) 46 D.L.R. 506 2.112
Casper Trader. The. See Hancock Shipping Co. Ltd v. Kawasaki Heavy Industries
Ltd
Cassils & Co. and Sassoon & Co. v. Holder Wood Bleaching Co. (1915) 84 L.J.
K.B. 834 20.26
Caspian Basin Specialised Emergency Salvage Admini stration v. Bouygues
Offshore SA. See Bouygues Offshore SA v. Caspian Shipping Co (Nos. 1, 3, 4 and 5)
Castanho v. Brown & Root (UK) Ltd [1981] A.C. 557; [1981] 1 Lloyd's Rep. 113
(H.L.) 12.157
Castle Insurance Co. v. Hong Kong Islands Shipping Co. (The Po toi Chau) [1983]
2 Lloyd's Rep. 376 (PC.) 11.15
Castlegate, The. See Morgan v. Steamship Castlegate and the Freight Due for the
Transportation of the Cargo Lately Laden on Board
Castrique v. Imrie (1870) L.R. 4 H.L. 414 (H.L.) 27.30, 27.46
Caterpillar Financial Services Corpn v. SNC Passion [2004] 2 Lloyd's Rep. 99
26. 100
Catherine Helen, The. See Cathiship SA v. Allanasons Ltd
Cathiship SA v. Allanasons Ltd (The Catherine Helen) [1998] 3 All E.R. 714;
[1998] 2 Lloyd's Rep. 511 13.54
Cave v. Robinson Jarvis & Rolf (A Firm) [2002] 2 All E.R. 641 (H.L.) 11.29
Cavendish, The. See Oceangas (Gibraltar) v. Port of London Authority
Cayne v. Global Natural Resources Plc [1984] 1 All E.R. 225 (C.A.) 14.20
Cebu, The. See Care Shipping Corpn v.Latin American Shipping Corpn
Cebu (No. 2), The. See Itex Itagrani Export SA v. Care Shipping Corpn
Celtic King, The [1894] P. 175 23.44
Centro Latino Americano de Commercio Exterior SA v. Owners of the Kommunar
(The Kommunar) (No. 1) [1997] 1 Lloyd's Rep. 1 2.218
(The Kommunar) (No. 2) [1997] 1 Lloyd’s Rep. 8 10.35, 10.42, 15.43, 15.55, 15.75,
15.79
(The Kommunar) (No. 3) [1997] 1 Lloyd’s Rep. 22 15.51, 15.117
Cerro Colorado, The [1993] 1 Lloyd's Rep. 58 15.106, 18.119, 23.160, 25.58
Ceskoslovena Obchodni Banka As v. Nomerva International Plc [2003] I.L.Pr. 20
12.102 Chailease Finance Corpn v. Credit Agricole Indosuez [2000] 1 Lloyd 's Rep.
348 (C.A.) 6.145, 6.146
Chalmers v. Pardoe [1963] 3 All E.R. 552 (P.C.) 21.13
Champion, The [1934] P. 1 18.31
Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] A.C. 334;
[1993] 1 All E.R. 664; [1993] 1 Lloyd's Rep. 291 (H.L.) 9.92, 14.19, 14.58, 16.10
Chappell v. Cooper [1980] 2 All E.R. 463 (C.A.) 11.30
Charger (No. 1), The. See British Transport Docks Board v. Owners of the
Proceeds of Sale of the Charger, Probe, Vigia, Dideki, Surveyor, Constellation, Errol
and Regency
Charman v. WOC Offshore BV [1993] 2 Lloyd’s Rep. 551 (C.A.) 6.97, 6.106,
6.109, 12.37
Chartered Bank v. Daklouche [1980] 1 All E.R. 205 (C.A.) 16.15
Chartered Mercantile Bank of India, London and China v. Netherlands India Steam
Navigation Co. Ltd (1883) L.R. 10 Q.B .D. 521 26.57, 26.122
Chase Manhattan Bank NA v. Israel-British Bank (London) Ltd [1981] Ch. 105;
[1980] 2 W.L.R. 202; [1979] 3 All E.R. 1025 26.147
Chellaram (K.) & Sons (London) v. Butlers Warehousing & Distribution [1978] 2
Lloyd's Rep. 412 (C.A.) 20.13, 20.24, 20.26
Chelsea Yacht & Boat Co Ltd v. Pope [2001] 2 All E.R. 409 (CA.) 2.46, 18.31
Cheltenham & Gloucester Building Society v. Ricketts [1993] 4 All E.R. 276
(C.A.) 16.30, 16.33
Cheshire Witch, The (1864) B. & L. 362 15.117
Chief Harry Akande v. Balfour Beatty Construction Ltd [1998] I.L.Pr. 110 27.39
Chieftain, The (1863) B. & L. 104 2.94, 18.114
Chimera, The (1852) 11 L.J. 113 23.133, 23.134
Chimimport Plc v. G D'Alesio SAS (The Paula D'Alesio) [1994] 2 Lloyd's Rep.
366 9.56
China Ocean Shipping Co. (The Xingcheng) v. Andros (The Andros) [1987] 2
Lloyd's Rep. 210 (P. C.) .... 11.18
China-Pacific SA v. Food Corpn of India (The Winson) [1982] A.C. 939; [1982] 1
Lloyd s Rep. 117 (H.L.) 17.21, 20.4, 20.21, 20.44, 20.46
Chr Knudsen, The [1932] P. 153; (1932) 43 Ll. L. Rep. 423 2.66
Christiansborg, The (1885) 10 P.D. 141 15.74, 18.99, 18.105, 18.109
Christina. The [1938] A.C. 485 10.16, 12.115
Chrysovalandou-Dyo, The. See Santiren Shipping Ltd v. Unimarine SA
Chubb Insurance Co of Europe SA v. Davies [2004] EWHC 2138 9.40, 10.80
Cil v. Owners of the Turiddu (The Turiddu) [1999] 2 All E.R. (Comm) 161;
[1999] 2 Lloyd's Rep. 401 2.80, 18.88
Cinderella Rockerfellas v. Rudd, 3 February 2003 18.31
Ciola v. Land Vorarlberg (C224/97) [1999] E.C.R. I —2517, 29 April 1999 (ECJ)
3.12
Citibank NA v. Rafidan Bank [2003] EWHC 1950 0.17
Citi-March Ltd v. Neptune Orient Lines Ltd [1997] 1 Lloyd's Rep. 72 11.9, 12.83,
12.84
City of Mecca, The (1881) 6 P.D. 106 (C.A.); reversing (1880) 5 P.D. 28 2.22,
15.134, 27.30, 27.48
Claim for Payment for a Timeshare, Re (9 O 62/95) [1997] I.L.Pr. 524 (Darmstadt
Dist Ct.) 5.20
Clan Grant, The (1887) 6 Asp. M.L.C. 144 2.113
Clara, The (1855) Swab. 1 15.133
Clark v. Bowring 1908 S.C. 1168 18.88
Clark (Inspector of Taxes) v. Perks [2000] STC 428 2.46, 18.32
Clay v. Sudgrave (1700) 1 Salk 33 10.8, 18.70
Clea Shipping Corpn v. Bulk Oil International (The Alaskan Trader) (No. 2)
[1984] 1 All E.R. 129; [1983] 2 Lloyd's Rep. 645 25.44
Clifford Chance v. Owners of the Vessel "Atlantic Trader" [1991] 2 Lloyd's Rep.
324n (H.C. (H.K.)) 2.232
Clifford Harris v. Solland International Ltd [2005] EWHC 141 20.20, 23.111
Clifford Maersk, The [1982] 2 Lloyd's Rep. 251 11.4
Clipper Maritime Co Ltd of Monrovia v. Mineral Import-Export (The Marie
Leonhardt) [1981] 2 Lloyd's Rep. 458 16.18, 16.34
Clothing Sales Contract, Re [1995] I.L.Pr. 72 (OBG (Munchen)) 12.37
Clough Mill Ltd v. Martin [1984] 3 All E.R. 982 (C.A.) 23.1, 23.64
Clupea, The [1982] LMLN 62 (Ct of Se ss. 20.55
Clydesdale Bank v. Walker and Bain 1926 S.C. 72 18.88
Coast Lines v. Hudig & Veder Chartering NV [1972] 2 Q.B. 34; [1972] 1 Lloyd's
Rep. 53 (C.A.) 26.56, 26.70
Cocona Energy, The (1977) (unreported) 2.234
Cohn, Re [1945] Ch. 5 26.51
Coin Controls Ltd v. Suzo International (UK) Ltd [1997] 3 All E.R. 45 5.17, 5.28
Coker, Ex p. (18775 ) L.R. 10 Ch. App. 652 15.48
Colorado, The [1923] P. 102 (C.A.) 26.41
Colegio de Offiales de la Marina Merchant Epsilon v. Administracia del Estado
(ECJ Case 405/0 1) 1.34
Colt Industries Inc v. Sarlie [1966] 3 All E.R. 673 (C.A.) 9.18
Coltman v. Bibby Tankers Ltd (The Derbyshire) [1988] A.C. 276; [1988] 1
Lloyd'sRep. 109 (H.L.) 2.167
Comet, The [1965] 1 Lloyd's Rep. 195 2.96, 2.39
Commercial Bank of the Near East Ltd v. A, B, C, and D [1989] 2 Lloyd's Rep.
319 16.40
Commission v. Netherlands ((ECJ Case C—2999/02) 1.34
Commission of the European Communities v. Belgium and Luxembourg 11 June
1998 (ECJ) 3.12
Commission of the European Communities v. France C–334/94 [1996] ECR I—
1307, 7 March 1996 (ECJ) 3.12
Commission of the European Communities v. Ireland C–191/96 12 June 1997
(ECJ) 3.12
Commission of the European Communities v. Netherlands C–299/02 14 October
2004 (ECJ) 3.12
Compagnie Noga D’Importation v. AN2 Banking Group [2004] EWHC 2601 14.36
Compagnie Tunisienne de Navigation SA v. Compagnie d'Armement Maritime SA;
sub nom. Compagnie d'Armement Maritime SA v. Compagnie Tunisienne de Navigation
SA [1971] A.C. 572; [1970] 2 Lloyd's Rep. 99 (H.L.) 13.32, 26.57, 26.69, 26.79
Companhia de Seguros Imperio v. Heath (REBX) Ltd [2001] 1 W.L.R. 112; [2001]
Lloyd's Rep. I.R. 109 (C.A.) 11.31
Compania Continental del Peru SA v. Evelpis Shipping Corpn (The Agia Skepi)
[1992] 2 Lloyd's Rep. 467 9.80
Compania Financiera Soleada SA v. Hamoor Tanker Corpn Inc. (The Borag)
[1981] 1 Lloyd's Rep. 483 (C.A.) 15.117
Compania Naviera Micro SA v. Shipley International Inc. (The Parouth) [1982] 2
Lloyd's Rep. 351 (C.A.) 13.32, 26.19, 26.59, 26.73
Comoco v. M/V El Centro Americano [1984] AMC 1434 26.25
Connelly v. RTZ Corpn Plc (No. 2) [1998] A.C. 854; [1997] 3 W.L.R. 373; [1997]
4 All E.R. 335 (H.L.) 12.102
Conoco Britannia, The. See J. H. Pigott & Son Ltd v. Owners of the Conoco
Britannia
Consolidated Investment & Contracting v. Saponaria Shipping Co. (The Virgo)
[1978] 3 All E.R. 988; [1978] 2 Lloyd's Rep. 167 (C.A.) 13.52
Constables case (1610) 5 Co. Rep. 106a 18.43
Constancia, The (1846) 2 W. Rob. 460 23.9
Constellation, The [1965] 2 Lloyd's Rep. 538 15.48
Continental Bank NA v. Aeakos Compania Naviera SA [1994] 1 Lloyd's Rep. 505
(C.A.) 5.44, 11.9, 12.19, 12.65
Continental Fertilizer Co. Ltd v. Pionier Shipping CV (The Pionier) [1995] 1
Continental Grain Co. v. Islamic Republic of Iran Shipping Lines and Government
Trading Corp of Iran (The Iran Rohanar) [1983] 2 Lloyd's Rep. 620 (C.A.) 25.42
Cool Carriers AB v. HSBC Bank USA [2001] 2 Lloyd's Rep. 22 9.19
Coral Rose (No. 1), The. See Atlas Maritime Co. SA v. Avalon Maritime Ltd
Coral Rose (No. 3), The. See Atlas Maritime Co. SA v. Avalon Maritime Ltd
Corps (t/a Corps Bros) v. Owners of the Paddle Steamer Queen of the South (The
Queen of the South) [1968] P. 449; [1968] 1 Lloyd's Rep. 18 2 2.19, 2.139, 2.192,
2.199, 2.218, 2.219, 10.25, 15.106, 15.143, 20.57, 20.59, 23.9, 23.170
Coreclc Maritime GmbH v Handelsveem BV (C387/98) [2000]ECR I—933; [200]
I.L.Pr. 263 (Op. Alber A.G.) 5.36, 5.55, 5.60, 5.61
Corfu Navigation Co. v. Mobil Shipping Co. (The Alpha) (No. 1) [1991] 2 Lloyd's
Rep. 52 (C.A.) 14.37
Cornelia Henrietta, The v. Cassels (1866) L.R. 1 A. & E. 51 18.88
Cornhill Insurance Plc v. Barclay [1992] LMLN 340 16.30
Corser v. Husely (1688) Comb. 135 10.8
Corsica Ferries France SA v. Gruppo Antichi Ormeggiaton del Porto di Genova
Coop arl (C266/96) [1998] ECR I—3949; [1998] 5 CMLR 402 (ECJ) 3.12
Coscol Marine Corpn v. Owners of the "Salina" [1999] LMLN 500 (C.A. Sing.)
10.39
Costellow v. Somerset County Council [1993] 1 All E.R. 952 (C.A.) 11.43
Coulthard v. Disco Mix Club Ltd [2000] 1 W.L.R. 707; [1999] 2 All E.R. 457
11.36
Countess, The [1923] A.C. 345 23.172
Coupland v. Arabian Gulf Oil Co. [1983] 1 W.L.R. 1136; [198 3] 3 All E.R. 226
(C.A.): affirming [1983] 1 W.L.R. 1136; [1983] 2 All E.R. 434 26.44, 26.52
Courageous Coloctronis, The [1979] W.A.R. 19 2.124
Coursier v. Fortis Bank SA (C267/97) [1999] ECR I –2543; [2000] I.L.Pr. 202
(ECJ) 28.3, 28.12
Cox v. Owners of the Esso Malaysia (The Esso Malaysia) [1974] 2 Lloyd's Rep.
143; [1974] 2 All E.R. 705; [1975] Q.B. 198 2.168, 26.12, 26.137
Craighall, The [1910] P. 207 (C.A.) 18.31
Cranfield v. Bridgegrove Ltd [2003] 3 All E.R. 129 9.24, 9.50
Crathie, The [1897] P. 178 24.85
Credit Lyonnais v. New Hampshire Insurance Co. Ltd [1997] 2 Lloyd’s Rep. 1
(C.A.) 26.109, 26.118
Credit Suisse Fides Trust SA v. Cuoghi [1998] Q.B. 818; [1997] 3 All E.R. 724
(CA.) 14.16, 16.22, 16.25, 16.51, 25.17
Credit Suisse Financial Products v. Societe Generale D’Enterprises [1997] I.L.Pr.
165 (C.A.) 5.45
Credit Suisse First Boston (Europe) Ltd v. MLC (Bermuda) Ltd [1999] 1 Lloyd’s
Rep. 767 12.65, 25.15, 25.20
Cretan Harmony, The [1978] 3 All E.R. 164; [1978] 1 Lloyd’s Rep. 425 (C.A. )
23.102, 23.118
Cretanor Maritime Co. Ltd v. Irish Marine Management Ltd (The Cretan Harmony)
[1978] 1 Lloyd's Rep. 425 (C.A.) 16.4
Cronos Containers NU v. Palatin [2003] I.L.Pr. 16 6.153
Crusader. The [1907] P. 15 2.46
Cumming v. Scottish Daily Record and Sunday Mail Ltd [1995] EMLR 538; The
Times, 8 June 1995 7.28
Currie v. M'Knight [1897] A.C. 97 (H.L.) 2.47, 2.64, 2.66, 2.170, 19.3
Curtis v. Wild [1991] 4 All E.R. 172 2.44
Custom Made Commercial Ltd v Stawa Metallbau GmbH (C288/92) [1994] ECR I
—2913; [1994] I.L.Pr. 516 (ECJ); [1993] I.L.Pr. 490 (BGH (Ger.)) 5.36, 5.86, 6.144,
6.147, 6.149
Customs and Excise Commissioners v. Air Canada [1991] 2 Q.B. 446 (C.A.)
2.133
Customs and Excise Commissioners v. Anchor Foods Ltd (No. 2) [1999] 3 All
E.R. 268 16.30
Customs and Excise Commissioners v. Barclays Bank Plc [2005] 1 Lloyd’s Rep.
165 16.55
Cybele, The (1878) 3 P.D. 8 12.145
Cyber Sea Technologies Inc. v. Triton Logging Co. Inc. [2003] 1 F.C. 569; 2002
FCT 794 (Can.) ......2.46, 18.32
Czarnikow-Rionda Sugar Trading Inc. v. Standard Bank London Ltd [1999] 2
Lloyd's Rep. 187 14.21, 14.22, 16.39
D/S A/S Idaho v. Peninsular & Oriental Steam Navigation Co. Ltd (The
Strathnewton) [1983] 1 Lloyd’s Rep. 219 (C.A.) 11. 4
DSQ Property Co Ltd v. Lotus Cars Ltd [1987] 1 W.L.R. 127 14.36, 14.40
DSV Silo und Verwaltungsgesellschaft mbH v. Owners of the Sennar (The Sennar)
(No. 2) [1985] 1 Lloyd's Rep. 521 (H.L.) 12.62, 12.12
Dagmara, The and Ama Antxine, The [1988] 1 Lloyd's Rep. 431 2.66
Daien Maru No.18, The [1986] 1 Lloyd's Rep. 387 (H.C. (Sing.)) 2.139, 10.25,
10.57, 14.84
D'Almeida Araujo LDA v. Sir Frederick Becker & Co. Ltd [1953] 2 Q.B. 329;
[1953] 2 Lloyd's Rep. 30 26.44
Dalmia Cement Ltd v. National Bank of Pakistan [1975] Q.B. 9; [1974] 3 W.L.R.
138; [1974] 3 All E.R. 189; [1974] 2 Lloyd's Rep. 98 27.64
Damavand, The [1993] LMLN 357 (C.A. (Sing.)) 10.68, 15.55
Damon Compania Naviera SA v. Hapag-Lloyd International SA (The Blankenstein)
[1983] 3 All E.R. 510; [1983] 2 Lloyd" Rep. 522 25.44
Danmarks Redenforening v. Lo Landsorganisationen 1 Sveirge (C-18/02) [2004] 2
Lloyd's Rep. 162 (ECJ) 6.159, 6.165
Dansommer A/S v. Gotz (C8/98) [2001] 1 W.L.R. 1069 (ECJ) 5.20
Dante, The (1846) 2 W. Rob. 427 2.98
Danvaern Production A/S v. Schuhfabriken Otterbeck GmbH & Co. (C341/93)
[1995] ECR I—-2053; [1995] I.L.Pr. 649 (ECJ) 6.197
Darfur, The [2004] 2 Lloyd's Rep. 469 24.55, 24.56
Daring, The (1868) L.R. 2 A. & E. 260 23.133
Daval Aciers D'Usinor et de Sacilor v. Armare Sri (The Nerarno) [1996] 1
Lloyd's Rep. 1 (C.A.) 12.61, 13.17. 13.38
Davenport v. Corinthian Motor Policies at Lloyd's 1991 SLT 774 6.160, 7.8
Davy International Ltd v Voest Alpine Industneanlagenblau GmbH [1999] 1 A1 1
E.R. 103; [2000] I.L.Pr. 148 (C.A.) 8.1
De Bloos Sprl v. Bouyer SA (C14/76) [1976] ECR 1497; [1977] 1 CMLR 60
(ECJ) 6.144, 6.172
De Dampierre v. De Dampierre [1988] A.C. 92; [1987] 2 W.L.R. 1006; [1987] 2
All E.R. 1 (H.L.) .... 12.104
De Pina v. MS Birka Beutler Schiffahrts KG (The Birka) [1994] I.L.Pr. 694 12.47
De Wolf v. Harry Cox BV (C42/76) [19761 ECR 1759; [1977] 2 CMLR 43 (ECJ)
12.9, 28.6
Dearie v. Hall (1823) 3 Russ. 1 23.96
Deaville v. Aeroflot Russian International Airlines [1997] 2 Lloyd's Rep. 67 25.18
Debaecker v. Bouwman (C49/84) [1985] ECR 1779; [1986] 2 CMLR 400 (ECJ)
28.64, 28.67, 28.68
Deerness v. John R. Keeble & Son (Brantham) Ltd [1983] 2 Lloyd’s Rep. 260
(H.L.) 11.30
Definitely Maybe (Touring) Ltd v. Marek Lieberberg Konzertagentur GmbH (No.
2) [2001] 1 W.L.R. 1745; [2001] 4 All E.R. 283; [2001] 2 All E.R. (Comm) 1; [2001] 2
Lloyd's Rep. 455 26.114
Deichland, The. See Owners of Cargo Lately Laden on Board the Deichland v.
Owners and/or Demise Charterers of the Deichland
Den Norske Bank ASA v. Antonatos [1998] 3 All E.R. 74: [1998] Lloyd's Rep.
Bank. 253 (C.A.) .... 16.50, 16.51
Den Norske Bank A/S and Irish Intercontinental Bank v. Owners of Ships Eurosun
and Eurostar and Euro Marine Carriers BV (The Eurosun and The Eurostar) [1993] 1
Lloyd's Rep. 106 18.36, 19.34, 25.55
Denby v. Hellenic Mediterranean Line Co. Ltd [1994] 1 Lloyd's Rep. 320 12.66
Denilauler v. SNC Couehet Freres (125/79) [1980] ECR 1553; [1 981] 1 CMLR 62
(ECI) 14.64, 14.65. 28.17
Den Norske Bank ASA v. Antonatos [1998] 3 All E.R. 74; [1998] Lloyd's Rep.
Bank. 253 (C.A.) 16.3
Dennis & Sons Ltd v. Cork Steamship Co. Ltd [1913] 2 K.B. 393 20.46
Derby & Co. Ltd v. Weldon (No. 1) [1989] 1 All E.R. 469; [1989] 1 Lloyd's Rep.
122 (C.A.) 16.20
Derby & Co. Ltd v. Weldon (No. 2) [1989] 1 All E.R. 1002 14.65, 16.1, 16.20,
16.44, 16.53, 25.8, 25.67
Derby & Co. Ltd v. Weldon (No. 6) [1990] 3 All E.R. 263 (C.A.) 16.21
Derbyshire, The. See Coltman v. Bibby Tankers Ltd
Despina GK, The [1983] Q.B. 214; [1982] 2 Lloyd's Rep. 555 2.14, 2.22, 10.84,
14.85, 15.64, 19.23, 27.33, 27.48
Despina Pontikos, The [1975] E.A.R. 38 (C.A. E. Africa) 10.47, 23.30 Despina
R, The [1979] A.C. 685; [1979] 1 Lloyd's Rep. 1 (H.L.) 25.36 Deutsche
Genossenschaftsbank v. Brasserie du Pecheur (148/84) [1985] ECR
1981; [1986] 2 CMLR 496 (ECJ) 28.10, 28.84, 28.106
Devon, The (1923) 16 Asp. M.L.C. 268 2.141
Deweer v. Belgium (A/35) (1979-1980) 2 EHRR 439 0.19
Dictator, The [1892] P. 304 9.61, 10.10, 15.137, 25.59
Dimbleby & Sons v. National Union of Journalists [1984] 1 All E.R. 751 (H.L.)
14.21
Dimskal Shipping Co. SA v. International Transport Workers Federation (The Evia
Luck) (No. 2) [1992] 1 Lloyd's Rep. 115 (H.L.) 26.63
Diplock's Estate, Re [1951] A.C. 251; [1950] 2 All E.R. 1137 (H.L.); affirming
[1948] Ch. 465; [1948] 2 All E.R. 318 (C.A.) 21.15
Disperser, The [1920] P. 228; (1920) 3 Ll. L. Rep. 145 11.26
Ditta Estasis Salotti di Colzani Aimo e Gianmario Colzani v. RUWA
Polstereimaschinen GmbH (C24/76) [1976] ECR 1831; [1977] 1 CMLR 345 (ECJ)
5.45
Domansa v. Derin Shipping & Trading Co. Inc. (The Sletreal) [2001] 1 Lloyd’s
Rep. 362 12.63
Domicrest Ltd v. Swiss Bank Corpn [1999] 1 Lloyd’s Rep. 80 6.147, 6.161, 6.163
Dong Wha Enterprise Co. Ltd v. Crownson Shipping Ltd [1995] 1 Lloyd’s Rep.
113 9.36
Donoghue v. Stevenson [1932] A.C. 562; 1932 S.C. (H.L.) 31 (H.L.) 18.7
Donohue v. Armco Inc. [2002] 1 Lloyd's Rep. 425 (H.L.); reversing [2000] 1
Lloyd's Rep. 579; (C.A.); reversing [1999] 2 Lloyd's Rep. 649 9.95, 25.15, 25.17,
25.20
Doran v. Power [1997] I.L.Pr. 52 (Sup. Ct (Irl.)) 6.25, 6.26
Doris v. The Ship Ferdinand (Can. Fed. Ct) LMLN 498 2.232
Dowthorpe, The (1843) 2 W. Rob. 73 2.98, 2.99, 18.38, 18.42
Dresser UK v. Falcongate Freight Management (The Duke of Yare) [1991] 2
Lloyd's Rep. 557 (C.A.) 5.62, 12.26, 12.28, 12.29, 12.50, 12.62, 14.47
Drouot Assurances SA v. Consolidated Metallurgical Industries (CMI Industrial
Sites) (C351/96) [1998] All E.R. (EC) 483; [1998] ECR I —3075; [1999] Lloyd's Rep.
I.R. 338 (ECJ) 12.43
Druid, The (1842) 2 W. Rob. 391 18.64
Du Pont (EI) de Nemours & Co. v. Agnew [1987] 2 Lloyd’s Rep. 585 (C.A.) 12.97
Dubai Bank Ltd v. Abbas [1998] I.L.Pr. 391; [1998] Lloyd’s Rep. Bank. 230 4.38,
11.7, 26.34
Dubai Electricity Co. v. Islamic Republic of Iran Shipping Lines (The Iran Vojdan)
[1984] 2 Lloyd's Rep. 380 12.56, 26.56
Duijnstee (Liquidator) v. Lodewijk Goderbauer (C288/82) [1983] ECR 3663;
[1985] 1 CMLR 220 (ECJ) 4.48
Dumez France SA v. Hessische Landesbank (C228/88) [19901 ECR I —49; [1990]
I.L.Pr. 299 (ECJ) 6.162
Dunhill (Alfred) Ltd v. Diffusion Internationale de Maroquinerie de Prestige Sarl
[2002] 1 All E.R. (Comm) 950 6.163
Duna, The (1861) 5 L.T. 217 23.133
Dunbee Ltd v. Oilman & Co. (Australia) Pty Ltd [1968] 2 Lloyd's Rep. 394 (Sup.
Ct (NSW)) 26.83
Dunnett v. Railtrack plc [2002] 1 W.L.R. 2434 0.14
ED & F Man Ship Ltd v. Kvaerner Gibraltar Ltd (The Rothnie) [1996] 2 Lloyd’s
Rep. 206 12.99, 12.103
ED & F Man (Sugar) Ltd v. Haryanto Yani (No. 2) [1991] 1 Lloyd’s Rep. 429
(C.A.) 27.8
EMI Records Ltd v. Modern Music Karl-Ulrich Walterbach GmbH [1992] Q.B.
115; [1991] 3 W.L.R. 663; [1992] 1 All E.R. 616 28.17
Eagle, The. See Hollingworth v. Southern Ferries
Eastern Trader, The. See Industrial Maritime Carriers (Bahamas) Inc. v. Sinoca
International Inc.
Edinburgh Castle. The [1999] 2 Lloyd's Rep. 362 2.218
Edward Oliver, The (1867) L.R. 1 A. & E. 379 23.14 1
Edwin, The (1864) B. & L. 281 18.70
Effer SpA v. Kantner (C38/81) [1982] ECR 825; [1984] 2 CMLR 667 (ECJ) 5.86,
6.135
Egon Oldendorff v. Libera Corpn (No. 1) [1995] 2 Lloyd's Rep. 64 12.88
Egon Oldendorff v. Libera Corpn (No. 2) [1996] 1 Lloyd's Rep. 380 13.32, 26.79,
26.105A
Eide UK Ltd v. Lowndes Lambert Group Ltd [1998] 1 Lloyd's Rep. 389 (C.A.)
17.15, 20.3, 20.52
El Ajou v. Dollar Land Holdings Plc (No. 1) [1993] 3 All E.R. 717 26.147
El Ajou v. Dollar Land Holdings Plc (No. 2) [1995] 2 All E.R. 213 21.15
El Amria, The. See Aratra Potato Co. Ltd v. Egyptian Navigation Co.
El Amria, The and El Minia, The [1982] 2 Lloyd's Rep. 28 (C.A.) 26.59, 26.71
Eleanora Charlotta, The (1823) 1 Hag. Adm. 156 2.47
Electric Supply Stores v. Gaywood [1909] 100 L.T. 855 20.30, 23.112
Elefanten Schuh GmbH v. Jacqmain (150/80) [1981] ECR 1671; [1982] 3 CMLR 1
(ECJ) 5.31, 5.41, 5.69
Eleftheria, The. See Owners of Cargo Lately Laden on Board the Elefthena v.
Owners of the Eleftheria
Eleftherios, The. See Galaxia Maritima SA v. Mineral Importexport
Eli Lilly & Co. v. Novo Nordisk A/S (No. 1) [2000] I.L.Pr. 74 12.14, 12.14
Elin, The (1882) 8 P.D. 39 23.9, 23.133, 23.134
Eliza, The (1833) 3 Hag. Adm. 87 2.217
Ella A. Clarke, The (1863 ) B. & L. 32 18.13
Ellerman Lines Ltd v. Lancaster Maritime Co. Ltd (The Lancaster) [1 980] 2
Lloyd's Rep. 497 17.8, 17.10, 17.20, 20.7, 20.8, 22.11, 22.30
Elli 2, The. See Ilyssia Compania Naviera SA v. Ahmed Abdul-Qawi Bamaodah
Elmvilie (No. 2), The [1904] P. 422 2.93, 2.94
Elpis, The [1999] 1 Lloyd's Rep. 606 15.139
Elton, The [1891] P. 265 18.9
Elwyn (Cottons) Ltd v. Pearle Designs Ltd [1990] I.L.Pr. 40 (H.C. (Irl)) 14.62
Emre II, The [1989] 2 Lloyd's Rep. 182 15.93, 15.126
Enforcement of a Foreign Costs Order, Re [1986] ECC 481 (OLG (Frankfurt Am
Main)) 28.14
Enforcement of an English Anti-Suit Injunction, Re (3 VA 11/95) [1997] I.L.Pr. 320
(OLG (Dusseldorf)) 28.57
Enforcement of a French Sequestration Order, Re (VIII ZB 8/79) [1979] ECC 321
(BGH (Ger.)) 28.55
Engdiv Ltd v. G. Percy Trentham Ltd 1990 SLT 617 6.134, 7.8
Engler v. Janus Versand GmbH (C—27/02) [2005] I.L.Pr. 8 6.117, 6.134
English Judgment, Re (20 W 27/92) [1993] I.L.Pr. 653 (OLG (Hamm)) 28.47
Ennstone Building Products Ltd v. Stanger Ltd [2002] 2 All E.R. (Comm.) 479;
[2002] B.L.R. 82 26.107
Epimenidis, The [1986] LMLN 186 (C.A. (Ghent)) 26.179
Epsilon Rosa (No. 2), The [2003] I.L.Pr. 18 25.25
Ernst & Young v. Butte Mining Plc (No. 2) [1997] 2 All E.R. 471; [1997] 1 Lloyd's
Rep. 313 11.32
Esal (Commodities) Ltd v. Mahendra Pujara [1989] 2 Lloyd's Rep. 479 (C.A.)
5.34, 9.56, 9.106
Eskbridge, The [1931] P. 51; (1931) 39 Ll. L. Rep. 12 23.152
Esso Brussels, The [1973] 2 Lloyd's Rep. 73 (C.A.) 26.142
Esso Malaysia, The. See Cox v. Owners of the Esso Malaysia
Etablissement Esefka International Anstalt v. Central Bank of Nigeria [1979] 1
Lloyd's Rep. 445 (C.A.) 16.42
Euro Commercial Leasing Ltd v. Cartwright & Lewis [1995] 2 B.C.L.C. 618
20.16, 20.19
Europa, The (1863) 2 Moo. N.S. 1 11.37
Eurostar, The. See Den Norske Bank A/S and Irish Intercontinental Bank v. Owners
of Ships Eurosun and Eurostar and Euro Marine Carriers BV
Eva, The; sub nom. Eva, The (Question of Priorities) [1921] P. 454; (1921) 8 L1.
L. Rep. 315 23.9
Evangelismos, The (1858) Swab. 378 15.117
Evelyn, ex p. General Public Works and Assets Co Ltd, Re [1894] 2 Q.B. 302
15.48, 17.34, 18.112
Ever Glory, The, 27 June 2003 25.18
Ever Success, The [1999] 1 Lloyd's Rep. 824 2.80, 2.92, 18.70, 19.3
Evia Luck (No. 2), The. See Dimskal Shipping Co. SA v. International Transport
Workers Federation
Evialis SA v. SIAT [2003] 2 Lloyd's Rep. 311 12.27
Evpo Agnic, The [1988] 2 Lloyd's Rep. 411; [1988] 3 All E.R. 810 (C.A.) 10.37,
10.38, 10.39, 10.45
Excess Insurance Co. Ltd v. Allendale (C.A.) 8 March 1995 9.95, 12.64
Excess Insurance Co. Ltd v. Astra SA Insurance & Reinsurance Co. [1997] I.L.Pr.
252 (CA.) 9.82
Exchange Control and a Greek Guarantor. Re (IX ZR 250/90) [1993] I.L.Pr. 298
(BGH (Ger.)) 5.55
Exeter, The (1799) 1 C. Rob. 173 23.145
Exhill Coal Mining Co., Re (1864) 4 De G.J. and Sm. 377 17.30
FMC Corpn v. Russell 1999 SLT 99 (Ct Sess.) 25.18
Faial, The. See Aluflet SA v. Vinave Empresa de Navegacao Maritima Lda
Fairfield Shipbuilding & Engineering Co. Ltd v. Gardner. Mountain & Co. Ltd
(1911) 104 L.T. 288 20.53
Fairfold Properties Ltd v. Exmouth Docks Co. Ltd (No. 2) [1992] 4 All E.R. 289
23.111
Fairport, The (1882) L.R. 8 P.D. 48 2.93, 2.94, 11.37
Fairport, The (No. 1) [1965] 2 Lloyd's Rep. 183 2.81, 2.82, 15.105, 25 .55, 26.24
Fairport, The (No. 3) [1966] 2 Lloyd's Rep. 253 2.81
Fairport, The (No. 5) [1967] 2 Lloyd's Rep. 162 2.218
Falcon, The [1981] 1 Lloyd's Rep. 13 15.100, 15.104, 23.9
Falk, The (1882) 4 Asp. M.L.C. 592 18.104
Falstria, The [1988] 1 Lloyd's Rep. 49 5 24.101. 24.107, 24.117
Fanchon, The (1880) 5 P.D. 173 23.45
Far Eastern Shipping Co. v. AKP Sovcomflot [1995] 1 Lloyd's Rep. 520 27.67
Father Thames, The [1979] 2 Lloyd's Rep. 364 2.68, 10.32. 18.60, 18.64
Fehmarn, The. See Owners of Cargo Lately on Board the Fehmarn v. Owners of the
Fehmarn
Felixstowe Dock & Railway Co. v. United States Lines Inc. [1988] 2 All E.R. 77;
[1987] 2 Lloyd’s Rep. 76 16.21
Feronia, The (1868) L.R. 2 A. & E. 65 2.90, 2.94
Ferret, The (1883) 8 App. Cas. 529 18.70
Fierbinti, The [1994] LMLN 396 10.73, 15.59
Finagra (UK) Ltd v. OT Africa Line Ltd [1998] 2 Lloyd’s Rep. 622 11.1, 11.18
Finnish Marine Insurance Co. Ltd v. Protective National Insurance Co. [1989] 2
Lloyd's Rep. 99; [1989] 2 All E.R. 929 9.60, 9.80
Finnrose, The. See Fort Sterling Ltd v. South Atlantic Cargo Shipping NV
Fireman's Fund Ins Co. v. M/V Dsr Atlantic 1998 A.M.C. 344 12.74
Firma Hengst Import BV v. Campese [1995] ECR I—2113; [1995] I.L.Pr. 587
(ECJ) 28.72
Firma Mund & Fester v. Firma Hatrex International Transport (C398/92) [1994]
ECR I—467; [1994] I.L.Pr. 264 (ECJ) 28.7, 28.93
Firma P v. Firma K (C178/83) [1984] ECR 3033; [1985] 2 CMLR 271 (ECJ)
28.111
First American Corpn v. Sheikh Zayed Al-Nahyan [1999] 1 W.L.R. 1154; [1998] 4
All E.R. 439; [1998] Lloyd's Rep. Bank. 213 (C.A.) 26.46
First Security Bank National Association v. Compagnie Nationale Air Gabon (No.
1) [1999] I.L.Pr. 617 28.57
Fisher v. Smith (1878) 4 App. Cas. 1 20.20
Fitzgerald v. Lloyd Williams [1996] I.L.Pr. 275 (C.A.) 14.22, 16.39
Flightline v. Edwards [2003] 1 W.L.R. 1200 16.4
Flora. The v. De Laca (1886) L.R. 1 A. & E. 45 15.54, 18.104
Fondation Solomon R Guggenheim v. Helion [1997] I.L.Pr. 457 (Cour. De Ca ss.)
5.19 Foreign Exchange Rates, Re (IX ZB 55/92) [1994] I.L.Pr. 703 (BGH (Ger.)) 28.54
Fornjot, The (1907) 24 T.L.R. 26 10.73
Forsythe International (UK) Ltd v. Silver Shipping Co Ltd and Petroglobe
International Ltd (The Saetta) [1993] 2 Lloyd's Rep. 268; [1994] 1 All E.R. 851 2.123,
18.36, 22.1, 25.55
Fort Kipp, The. See Canadian Pacific (Bermuda) Ltd v. Lagon Maritime Overseas
Fort Laramie, The (1922) 31 C.L.R. 56 10.42
Fort Sterling Ltd v. South Atlantic Cargo Shipping NV (The Finnrose) [1994] 1
Lloyd's Rep. 559 11.18, 11.46
Forward v. Hendricks [1997] 2 All E.R. 395 (C.A.) 11.30
Forward v. West Sussex CC [1995] 4 All E.R. 207 9.43
Foskett v. McKeown [2001] 1 A.C. 102; [2000] Lloyd's Rep. I.R. 627 (H.L.)
21.15, 21.16
Fournier v. The Ship "Margaret 2" (1999) LMLN 514 2.68, 18.64
Fox v. Taher [1997] I.L.Pr. 441 (C.A.) 12.34
Foxcraft v. Wood (1828) 4 Russ. 487 20.33
Foxe v. Scotsman Publications Ltd (1994) T.L.R. 84 7.28
Frahuil SA v. Assitalia SpA (C265/02) [2004] All E.R. (EC) 373 (ECJ) 6.1, 6.134
Frances, The (1820) 2 Dods. 420 2.123
Francesco Nullo, The [1973] 1 Lloyd's Rep. 72 26.142
Francovich v. Italy (C6/90); Bonifacti v. Italy (C9/90) [1991] ECR I—5357;
[1993] 2 CMLR 66 (ECJ) 3.12
Frans Maas Logistics (UK) Ltd v. CDR Trucking BV [1999] 2 Lloyd's Rep. 179
6.54
Frawley v. Neill (1999) The Times, 5 April 11.2, 11.32
Freccia del Nord and Nord Sea, The [1989] 1 Lloyd's Rep. 388 12.30
Freedom, The (1871) 1 Asp. M.L.C. 136 15.62
Freightline One, The [1986] 1 Lloyd's Rep. 266 20.58, 20.59, 23.9, 23.170
Freir, The and The Albert (1875) 2 Asp. M.L.C. 589 15.62
Front Comor, The [2005] EWHC 454; [2005] All E.R. (D) 350 13.14, 25.23
Fulgurit v. La Compagnie d'Assurances PFA [1996] I.L.Pr. 495 (Cour de Cass. (F.))
5.45
Fulham, The [1899] P. 251 (C.A.); affirming [1898] P. 206 2.59, 20.49
Furness Withy (Australia) Ltd v. Metal Distributors (UK) Ltd (The Amazonia)
[1990] 1 Lloyd's Rep. 236 13.1, 13.33, 26.81
Fusilier, The (1865) 3 Moo. P.C. N.S. 51 2.48, 2.53
G & N Angelakis Shipping Co. SA v. Compagnie National Algenenne de
Navigation (The Attika Hope) [1988] 1 Lloyd's Rep. 439 22.21, 23.153
GIE Groupe Concorde v. Master of the Vessel Suhadiwarno Panjan (C440/97)
[1999] I.L.Pr. 14 (Cass. (F.)) 5.86, 6.147
GIE Reunion v. Zurich Espana Case (C77/04), Judgment 26 May 2005 6.98, 6.196
GN Preziosi di Gon & Nibi sdf v. Swiss Gold Imports Pic (In Bankruptcy) [1997]
I.L.Pr. 509 (HD (Swe)) 28.9
Gaetano and Maria, The (1882) L.R. 7 P.D. 137 (C.A.) 26.46
Galaxia Maritima SA v. Mineral Importexport (The Elefthenos) [1982] 1 Lloyd's
Rep. 351 (C.A.) 16.18, 16.34, 16.58
Galaxias, The 1980 1 Can. Fed. 386 26.171
Galaxias, The [1989] IEC 386 23.9
Galaxy Energy International Ltd v. Assuranceforeningen Skuld (Ejensidie) (The
Oakwell) [1999] 1 Lloyd's Rep. 249 10.73, 15.141
Galeries Segoura Sprl v. Firma Rahim Bonakdarian (C25/76) [1976] ECR 1851;
[1977] 1 CMLR 361 (ECJ) 5.45, 5.46
Gamelstaden v. Casa de Suecia SA [1994] 1 Lloyd's Rep. 43 3 12.16
Gan Insurance Co. Ltd v. Tai Ping Insurance Co. Ltd (No. 1) [1999] 2 All E.R.
(Comm.) 54; [1999] I.L.Pr. 729 (C.A.) 26.105A
Ganges, The (1869) L.R. 2 A. & E. 370 18.86
Gangway Ltd v. Caledonian Park Investments (Jersey) Ltd [2001] 2 Lloyd's Rep.
715 16.55
Gannon v. B&I Steam Packet Co Ltd [1994] I.L.Pr. 405 (Sup. Ct (Irl.)) 6.192
Gapp v. Bond (1887) L.R. 19 Q.B.D. 200 (C.A.) 23.31
Gardner v. Lachlan (1838) 4 Myl. & Cr. 129 23.95
Gartner Electronic GmbH v. Basch Exploitatie Maatshappij BV (Case C—111/01)
(ECJ) 12.28, 12.31, 12.37
Gas Float Whitton (No. 2), The [1897] A.C. 337 (H.L.) 18.31, 18.41
Gascoine v. Pyrah [1994] I.L.Pr. 82 (C.A.) 5.91, 6.124, 6.192
Gasser v. MISAT (C—116/02) [2004] 1 Lloyd's Rep. 222 (ECJ) 4.37, 5.44, 12.19,
12.25
Gatoil International Inc. v. Arkwright-Boston Manufacturers Mutual Insurance Co.
(The Sandrina) [1985] A.C. 255; [1985] 1 Lloyd's Rep. 181 (H.L.) 2.183, 2.185, 2.188,
2.194, 2.2 14, 2.22 1
Gaupen, The (1925) 22 L1. L. Rep. 57 23.116
Gay Tucan, The [1968] 2 Lloyd's Rep . 245
Gebr Van Weelde Scheepvaart Kantoor BV v. Homeric Marine Services (The
Agrabele) (No. 1) [1979] 2 Lloyd's Rep. 117 16.15
Geemente Steenburgen v. Baten (C—271/00) [2003] W.L.R. 1966 (ECJ) 4.25
Geha Naftiiaki EPE v. NPDD Limenko Tamio Dodekanisou (Case C—435/00)
[2003] 1 All E.R. (Comm.) 45 1.34
Gemma, The [1899] P. 285 (C.A.) 15.137, 18.104
Genel Maklyati SA v. Compagnie Générale Maritime SA (1982) 1983 ECD 144
28.47
General Palmer. The (1828) 2 Hag. Adm. 176 2.217
Geobra Brandstatter GmbH & Co KG v. Big Spielwarenfabrik (1977) (ECD 1 -
5.3-B5) (District Court Amsterdam) 6.162
George Barker (Transport) Ltd v. Eynon [1974] 1 Lloyd's Rep. 65 (C.A.) 17.20,
20.8
George Gordon, The (1884) L.R. 9 P.D. 46 15.133
Gerling Konzern Speziale Kreditversicherung AG v. Amministrazione del Tesoro
dello Stato (C201/82) [1983] ECR 2503; [1984] 3 CMLR 638 (ECJ) 5.58, 5.60, 6.105,
6.113
Giacinto Motta, The [1977] 2 Lloyd's Rep. 221 .24.29, 24.85, 24.117, 24.128
Gidrxslme Shipping Co. Ltd v. Tantomar Transportes Maritimos Ltd (The Naftilos)
[1994] 2 Lloyd's Rep. 392; [1994] 4 All E.R. 507 16.52
Gilbert Rowe (No. 1), The. See Rowan Companies Inc. v. Lambert Eggink
Offshore Transport Consultants vof (The Gilbert Rowe) (No. 1)
Gilkes v. Venizelos ANESA [2000] I.L.Pr. 487 25.17
Gill & Duffus SA v. Rionda Futures Ltd [1994] 2 Lloyd's Rep. 67 17.21
Gina, The [1980] 1 Lloyd's Rep., 398 2.191, 15.62, 15.117
Giovanna, The. See Gulf Interstate Oil Co. v. ANT Trade & Transport Ltd of Malta
Gladstone v. Birley (1817) 2 Mer. 401 21.1
Glatzer v. Bradston Ltd (The Ocean Enterprise) [1997] 1 Lloyd's Rep. 449 2.123,
10.25, 10.57, 19.19, 23.32, 23.36, 23.42, 23.83, 25.40, 25.65
Gleason v. The Ship "Dawn Light" [1997] LMLN 455 (Fed. Ct (Canada)) 10.57
Glegg v. Bromley [1912] 3 K.B. 474 (C.A.) 18.81
Glencore International AG v. Exeter Shipping Ltd [2002] 2 All E.R. (Comm.) 1
(C.A.) 25.18
Glencore International AG v. Metro Trading International Inc. (No. 1) [1999] 2
Lloyd's Rep. 632 5.62, 12.38, 12.62
Glencore International AG v. Shell International Trading & Shipping Co. Ltd
[1999] 2 Lloyd's Rep. 692 12.38
Global Marine Drilling Co. v. Triton Holdings Ltd (No. 1) 1999 G.W.D. 39 -1905,
23 November 1999 18.31
Godwin v. Swindon Borough Council [2001] 4 All E.R. 641 (C.A.) 9.22, 9.23
Golaa, The [1926] P. 103; (1926) 24 L1. L. Rep. 294 15.74
Golden Elephant, The [1976] 2 Lloyd's Rep. 462 (C.A. (Sing.)) 15.112
Good Challenger, The [2003] EWCA Civ 1668 (C.A.) 27.1
Good Herald, The [1987] 1 Lloyd's Rep. 236 10.74
Goode v. Martin [2002] 1 W.L.R. 1828 (C.A.) 0.16, 9.41
Goring, The [1988] A.C. 831; [1988] 1 Lloyd's Rep. 397 (H.L.) 0.34, 2.49, 2.51,
2.60
Goulandris, The [1927] P. 182; (1927) 27 L1. L. Rep. 120 18.114
Gourdain (Liquidator) v. Nadler (C133/78) [1979] ECR 733; [1979] 3 CMLR 180
(ECJ) 4.27, 28.12
Governor and Company of Bank of Scotland v. SA Banque Nationale de Paris
1996 S.L.T. 103; [1996] I.L.Pr. 668 (O.H.) 5.44
Grand Union (Shipping) Ltd v London Steamshi p Owners Mutual Insurance
Association Ltd (The Rosworth) (No. 3) [1962] 1 Lloyd's Rep. 483 2.53
Great Future International Ltd v. Sealand Housing Corpn [2003] EWCA Civ 682
14.41
Greenmar Navigation v. Owners of Ships Bazias 3 and Bazias 4 and Sally Line
(The Bazias 3 and The Bazias 4) [1993] 1 Lloyd's Rep. 101 (C.A.) 0.35, 14.43, 15.91,
15.106, 15.120, 15.128
Greenway and Barkers Case (1577) Godb. 260 10.8
Greenwich Ltd v. National Westminster Bank plc [1999] 2 Lloyd's Rep. 308 4.21,
14.36, 14.40
Greenwood v. Bennett [1973] Q.B. 195; [1972] 3 W.L.R. 691; [1972] 3 All E.R.
586 (C.A.) 20.31
Gregos, The [1985] 2 Lloyd's Rep. 347 20.2, 20.7
Gregson v. Channel Four Television Co Ltd The Times, 11 August 2000 (C.A.)
9.41
Gnmaldi Compagnia di Navigazione SpA v. Sekihyo Lines Ltd (The Seki Rolette)
[1998] 2 Lloyd's Rep. 638; [1998] 3 All E.R. 943 11.18, 13.52, 13.53
Group Josi Reinsurance Co. SA v. Universal General Insurance Co. (UGIC)
(C412/98) [2000] All E.R. (EC) 653; [2 001] Lloyd's Rep. I.R. 483 (ECJ) 4.7, 6.98
Grovit v. Doctor [1997] 2 All E.R. 417 (H.L.) 11.2, 11.43
Gruber v. Bay Wa AG Case (C464/01) 20 January 2005 6.117
Grupo Mexicano Desarollo v. Alliance Bond Fund Inc. 527 U.S. 308 (1999) (US
S.C.) 16.26
Grupo Torras SA v. Al-Sabah (No. 1) [1996] 1 Lloyd's Rep. 7; [1995] I.L.Pr. 667
(C.A.); affirming [1995] 1 Lloyd's Rep. 374 5.22, 12.16, 12.26, 12.28, 12.33, 12.34,
12.47
Grupo Torras SA v. Al-Sabah (No. 7) [2001] EWCA Civ 1370 (C.A.) 16.30
Gubisch Maschinenfabrik KG v. Palumbo (C144/86) [1987] ECR 4861; [1989]
ECC 420 (ECJ) 12.36, 12.37
Guiseppe di Vittono (No. 1), The. See Bridge Oil Ltd v. Owners and/or Demise
Charterers of the Ship Guiseppe di Vittorio
Guiseppe di Vittono (No. 2), The. See Bridge Oil Ltd v. Owners and/or Demise
Charterers of the Ship Guiseppe di Vittorio
Gulf Grain, The. See Atlas Shipping Agency (UK) Ltd v. Suisse Atlantique Societe
d'Armement Maritime SA (The Gulf Grain and The El Amaan)
Gulf Interstate Oil Co. v. ANT Trade & Transport Ltd of Malta (The Giovanna)
[1999] 1 Lloyd's Rep. 867 14.22, 16.39
Gulf Shipping Lines Ltd v. Jadranska Slobodna Plovidba(The Matija Gubec)
[1981] 1 Lloyd's Rep. 31 11.14
Gulf Venture, The (No. 1) [1984] 2 Lloyd's Rep. 445 15.133
Gustaf, The (1862) Lush. 506 23.133
Haabet, The [1899] P. 295 2.98
Haeger and Schmidt GmbH v. Compagnie Francaise de Navigation (C.A. of
Central Commission for Navigation of the Rhine). Decision of 2 March 1977, ECD 1 -
57-B4 6.71
Hai Hing, The. See Bua International Ltd v. Hai Hing Shipping Co. Ltd
Haiti v. Duvalier (Mareva Injunction) (No. 2) [1989] 1 Lloyd's Rep. Ill; [1989] 1
All E.R. 456 (C.A.) 9.71, 14.71, 16.11A, 16.28
Haji-Ioannou v. Frangos [1999] 2 Lloyd s Rep. 337 (C.A.) 5.88, 9.86, 10.38,
10.58, 10.67, 12.14, 12.20, 12.22, 12.38, 12.99, 12.102
Halcyon Isle, The. See Bankers Trust International v. Todd Shipyards Corpn
Halcyon the Great, The (No. 2) [1975] 1 Lloyd's Rep. 525 25.57
Halcyon Skies (No. 1), The. See Powell v. Owners of the Proceeds of Sale of the
Halcyon Skies
Halki Shipping Corpn v. Sopex Oils Ltd (The Halki) [1998] 1 Lloyd's Rep. 465
(C.A.) 13.41, 13.56
Halley, The (1868) L.R. 2 P.C. 193 (P.C.) 26.123, 26.124
Halsey v. Milton Keynes WHS Trust [2004] EWCA Civ (C.A.) 0.14, 0.15
Hamble Fisheries Ltd v. L Gardner & Sons Ltd (The Rebecca Elaine) [1999] 2
Lloyd's Rep. 1 (C.A.) 2.148
Hamburg Star, The [1994] 1 Lloyd's Rep. 399 12.102
Hamed el Chiaty & Co. (t/a Travco Nile Cruise Lines) v. Thomas Cook Group Ltd
(The Nile Rhapsody) [1994] 1 Lloyd's Rep. 382 (C.A.) 12.75, 12.76, 12.77, 12.79,
12.97
Hanbridge Services Ltd v. British Aerospace Communications Ltd [1993] I.L.Pr.
778 (Sup. Ct (Irl.)) 6.151
Hamburg Star, The [1994] 1 Lloyd’s Rep. 399 2.182
Hancock Shipping Co. Ltd v. Kawasaki Heavy Industries Ltd (The Casper Trader)
[1992] 3 All E.R. 132; [1991] 2 Lloyd's Rep. 237 (C.A.) 9.41
Handelswekenj GJ Bier BV and Stichtung Rein water (The Rem water Foundation)
v. Mines de Potasse D'Alsace SA (C21/76) [1977] 1 CMLR 284 (ECJ) 6.162
Handte (Jakob) & Co. GmbH v. Societe Traitments Mecano -Chimiques des
Surfaces (TMCS) (C26/91) [1992] ECR I -3967; [1993] I.L.Pr. 5 (ECJ) 6.1, 6.134
Hantarex SpA v. Digital Research SA [1993] I.L.Pr. 501 (Cour d'A (Paris)) 5.44
Happy Fellow, The. See Blue Nile Shipping Co. Ltd v. Iguana Shipping & Finance
Inc.
Happy Pioneer, The [1983] H.K.L.R. 43 26.66
Harbour and General Works Ltd v. Environment Agency [2000] 1 Lloyd's Rep. 65
(C.A.) 13.52
Harlow, The [1922] P. 175 18.31
Harmonie, The (1841) 1 W. Rob. 178 23.122
Harris v. Quine (1869) L.R. 4 Q.B. 653 26.34, 27.44
Harrods (Buenos Aires) Ltd (No. 1), Re [1991] 4 All E.R. 334 (C.A) 12.14, 12.15
Harrods (Buenos Aires) Ltd (No, 2), Re [1992] Ch 72; [1991] 4 All E.R. 348
(C.A.) 3.32, 4.36-4.3 8, 4.42, 9.68, 9.70
Hartford v. Jones (1698) 1 Ld. Ray. 393 20.49
Hashstroodi v. Hancock [2004] EWCA Civ 652 932
Hassneh Insurance Co. of Israel v. Stuart J. Mew [1993] 2 Lloyd's Rep. 243 13.44,
25.46
Havhelt, The [1993] 1 Lloyd's Rep. 523 11.18, 12.79, 14.43, 15.95
Heather Bell, The [1901] P. 143 23.46
Heidberg, The. See Partenreederei M/S Heidberg v. Grosvenor Grain & Feed Co.
Ltd
Heinrich, The (Costs) (1872) L.R. 3 A. & E. 505 23.111, 2 3.17 1
Henrich Biorn, The. sub nom. Northcote v. Owners of the Henrich Biorn (1886) 11
App. Cas. 270; (1885) 10 P.D. 44 18.9, 18.13
Helene Roth. The [1980] 1 Lloyd's Rep. 477; [1980] 1 All E.R. 1078 10.71
Hellenic Lines v. Rhoditis 398 U.S. 306 (1970) 26.30
Hellenic Steel Co. v. Svolamar Shipping Co. Ltd (The Komninos S) [1991] 1
Lloyd's Rep. 370 (C.A.) 7.5, 11.7, 12.57, 26.11, 26.34, 26.67
Henderson v. Jaouen [2002] 1 W.L.R. 2971; [2002] 2 All E.R. 705 (C.A.) 6.162
Hendrikman v. Magenta Druck & Verlag GmbH (C78/95) [1997] Q.B. 426; [1997]
2 W.L.R. 349; [1996] All E.R. (EC) 944 (ECJ) 28.68, 28.69
Hendy Lennox (Industrial Engines) Ltd v. Grahame Puttick Ltd [1984] 2 All E.R.
152; [1984] 2 Lloyd's Rep. 422 23.17
Henrich Bjorn, The (1885) 10 P.D. 44; on appeal (1886) 11 App. Cas. 270 2.42,
2.68, 2.111, 2.112, 19.3, 19.9
Henrik Sif, The. See Pacol Ltd v. Trade Lines Ltd
Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd (25 May
2000 (C.A.)) 13.50
Herceg Novi, The. See Owners of the Herceg Novi v. Owners of the Ming Galaxy
Hereward, The [1895] P. 284 2.124
Hero, The (1865) B. & L. 446 15.73
Hesperides Hotels v. Muftizade [1978] 2 All E.R. 1168 (H.L.) 12.15 1
Hew, The (1863) 13 W.R. 927 18.105
Hill v. Wilson (1879) 4 C.P.D. 329 26.153
Hine Bros v. The Steamship Syndicate Ltd (1895) 72 L.T. 79 20.52
Hingston v. Wendt (1876) L.R. 1 Q.B.D. 367 20.43, 20.48, 20.49, 20.50
Hiscox v. Outhwaite (No. 1) [1991] 3 All E.R. 641; [1991] 2 Lloyd's Rep. 435
(H.L.) 13.35, 27.66
Hiscox Underwriting Ltd v. Dickson. Manchester and Co. Ltd [2004] 1 All E.R.
(Comm.) 753 .. 13.44, 14.54
Hispanica de Petroles SA v. Vencedora Oceanica Navegacion SA (The Kapetan
Markos NL) (No. 1) [1986] 1 Lloyd’s Rep. 211 (C.A.) 11.18
Hjemmet, The (1880) 5 P.D. 227 2.216
Hoegh Silvercrest. The [1962] 1 Lloyd's Rep. 9 2.141
Hoffmann v. Krieg (145/86) [1988] ECR 645; [1990] I.L.Pr. 4 (Ed) 28.21, 28.56,
28.75
Holderness v. Shacfcels (1824) 8 B. & C. 612 20.35
Hollingworth v. Southern Ferries (The Eagle) [1977] 2 Lloyd's Rep. 70 2.168
Holmes (Keito) v. Bangladesh Biman Corpn [1989] 1 All E.R. 852; [1989] 1
Lloyd's Rep. 444 (H.L.) 26.13
Honshu Gloria, The (No. 1) [1986] 2 Lloyd's Rep. 63 23.9
Hope, The (1873) 1 Asp. M.L.C. 563 23.133, 23.136, 23.1 40, 23.144
Horlock, The (1877) 2 P.D. 243 23.35
Home Roberts v. SmithKline Beecham Plc [2002] 1 W.L.R. 1662 11.28, 11.32
Hough v. P & O Containers Ltd [1998] 2 Lloyd's Rep. 318 6.186, 6.193
Huber v. Steiner (1835) 2 Bing. N.C. 202 26.34
Hughes v. Clewley (The Siben) (No. 1) [1994] 2 Lloyd's Rep. 420 (C.A. (Jer.))
2.123
Hughes v. Hughes [1958] P. 221; [1958] 2 W.L.R. 934; [1958] 2 All E.R. 366
20.24
Hull No. 1 and Hull No. 2, The [1991] LMLN 310 23.9
Hulse v. Chambers [2001] 1 W.L.R. 2386 26.44
Hurst, The [1999] LMLN 507 23.169
Huth & Co. v. Lamport (1886) L.R. 16 Q.B.D. 735 (C.A.) 20.47
Hutton (London) v. Mofarrij [1989] 2 All E.R. 633; [1989] 2 Lloyd's Rep. 348
(C.A.) 9.75
I Congreso del Partido, The. See Owners of Cargo Lately Laden on Board the
Playa Larga v. Owners of the I Congreso del Partido
ICI Fibres v. Mat Transport [1987] 1 Lloyd's Rep. 354; [1987] 1 E.T.L.R. 145
11.16
ICL Vikraman, The [2004] 1 Lloyd's Rep. 21 24.6, 24.39, 24.44, 24.48, 24.73,
24.80
IP Metal Ltd v. Ruote Oz SpA [1993] 2 Lloyd's Rep. 60 5.44, 5.45
IP Metal Ltd v. Ruote Oz SpA (No. 2) [1994] 2 Lloyd's Rep. 560 (C.A.) 5.44, 5.45,
12.19
ISC Technologies v. Guerin (James Howard) [1992] 2 Lloyd's Rep. 482 9.96
Ice Express, The. See Alpina Compagnia di Assicurazione SA v. Agenzia
Marittima LV Ghianda Snc
Igor, The [1956] 2 Lloyd's Rep. 271 23.160
Ikarian Reefer (No. 2), The. See National Justice Compania Naviera SA v.
Prudential Assurance Co Ltd
Ile de Ceylan, The [1922] P. 256; (192 2) 12 Ll. L. Rep. 257 23.173
Ilyssia Compania Naviera SA v. Ahmed Abdul -Qawi Bamaodah (The Elli 2)
[1985] 1 Lloyd's Rep. 107 (C.A.) 13.39
Immacolata Concezione (Costs), The (1884) L.R. 9 P.D. 37 2.81, 23.9, 23.121
Import Export Ltd v. Compania Sud Americana de Vapores SA [2003] 1 Lloyd's
Rep. 405 12.66
Import of Italian Sports Cars, Re [1992] I.L.Pr. 188 (OLG (Stuttgart)) 5.38
Inco Europe Ltd v. First Choice Distribution [2000] 2 All E.R. 109; [2000] 1
Lloyd's Rep. 467 (H.L.) 13.50
Ideal Gavel, The [1999] LMLN 502 26.22
India v. India Steamship Co Ltd (The Indian Endurance and The Indian Grace) (No.
2) [1998] 1 Lloyd's Rep. 1 (H.L.) ....0.10, 0.36, 1.12, 1.28, 9.67, 10.84, 12.44, 12.63,
15.44, 15.66, 16.13, 17.41, 17.57, 17.59, 17.62, 18.4, 18.45, 18.64, 18.66, 19.8, 19.12,
25.2, 27.5
India v. Taylor [1955] A.C. 491; [1955] 2 W.L.R. 303; [1955] 1 All E.R. 292
(H.L.) 26.9, 27.34
India Videogram Association Ltd v. Patel [1991] 1 All E.R. 214 9.49
Indian Grace (No. 1), The. See Republic of India v. India Steamship Co. Ltd (The
Indian Endurance and The Indian Grace) (No. 1)
Indian Grace (No. 2), The. See India v. India Steamship Co Ltd (The Indian
Endurance and The Indian Grace) (No. 2)
Indian Oil Corporation Ltd v. Vanol Inc. [1992] 2 Lloyd’s Rep. 563 (C.A.) 11.1,
13.17
Indussa Corpn v. Owners of the Ranborg (The Ranborg) [1967] 2 Lloyd’s Rep.
101 (US Ct) 12.74
Industrial Diamond Supplies v. Riva (C43/77) [1977] ECR 2175; [1978] 1 CMLR
349 (ECJ) 28.102
Industrial Maritime Carriers (Bahamas) Inc. v. Sinoca International Inc. (The
Eastern Trader) [1996] 2 Lloyd's Rep. 585 27.40, 27.41
Nndustrie Chimiche Italia Centrale v. Alexander G. Tsavliris & Sons Maritime Co
(The Choko Star) (1995) [1995] 2 Lloyd’s Re p. 608 9.41, 11.32
Industrie Tessili Italians Como v. Dunlop AG (12/76) [1976] ECR 1473; [1977] 1
CMLR 26 (ECJ) 6.147
Industrie, The (1871) L.R. 3 A. & E. 303 2.146
Industrie. The [1894] P. 58 (C.A.) 26.57
Ines, The. See MB Pyramid Sound NV v. Briese Schiffahrts GmbH & Go. KG MS
"Sina"
Ingmar GB Ltd v. Eaton Leonard Technologies Inc. (C381/98) [2001] All E.R.
(EC) 57; [2001] 1 All E.R. (Comm.) 329 (ECJ) 26.3
Ingosstrakh Ltd v. Latvian Shipping Co. [2000] I.L.Pr. 164 (C.A.) 12.64, 12.76,
12.79, 24.98
Inna, The [1938] P. 148; (1938) 60 L1. L. Rep. 414 23.133, 23.134
Insurance Co. v. Lloyd's Syndicate [1995] 1 Lloyd's Rep. 272 13.44, 25.46
Insured Financial structures Ltd v. Elektrocie plocoyna Tychy SA [2003] 2 W.L.R.
656 (C.A.) 5.44, 12.19
Inter-Islands Exporters Ltd v. Berna Steamship Co. Ltd 1960 S.L.T. 21 18.88
Inter Tel Inc. v. Ocis Plc [2004] EWHC 2269 12.98
Interatlantic (Namibia) (Pty) Ltd v. Okeanski Ribolov Ltd (The Afala) [1995] 2
Interdesco SA v. Nullifire Ltd [1992] 1 Lloyd's Rep. 180; [1992] I.L.Pr. 97 28.54,
28.55, 28.56, 28.102, 28.104
Intermetal Group Ltd v. Worslade Trading Ltd [1998] I.L.Pr. 765 (Sup. Ct (Irl))
12.97
International Credit and Investment Co. (Overseas) Ltd v. Shikh Kamal Adham
(Share Ownership) [1999] I.L.Pr. 302 (C.A.) 12.98
Internationale Nederlanden Aviation Lease BV v. Civil Aviation Authority [1997]
1 Lloyd’s Rep. 80 12.22, 12.23
Interpool Ltd v. Galani [1987] 2 All E.R. 981 (C.A.) 5.29
Inwards v. Baker [1965] 2 Q.B. 29; [1965] 2 W.L.R. 212; [1965] 1 All E.R. 446
21.13
Ion. The. See Nippon Yusen Kaisha v. Pacifica Navegacion SA
Ioannis Daskalelis, The [1974] 1 Lloyd's Rep. 174 (Sup. Ct (Can.)) 26.17 1
Iran Amanar, The [1999] LMNL 511 (H.C. Australia) 1 0.27
Iran Bohanar, The. See Continental Grain Co. v. Islamic Republic of Iran Shipping
Lines and Government Trading Corp of Iran (The Iran Bohanar)
Iran Vojdan, The. See Dubai Electricity Co. v. Islamic Republic of Iran Shipping
Lines
Irina Zharkikh, The and Ksenia Zharkikh, The [2001] 2 Lloyd's Rep. 319 (H.C.
(NZ)) 25.4
Irini A (No. 2), The. See Ascot Commodities NV v. Northern Pacific Shipping
Irish Fir, The (1943) 76 L1. L. Rep. 51 15.133
Iraqi Ministry of Defence v. Arcepey Shipping Co SA and Gillespie Bros & Co
Ltd (The Angel Bell) [1979] 2 Lloyd's Rep. 491 5.26, 16.4, 16.18, 16.43, 16.44, 16.45,
19.7, 23.102, 23.118, 26.166, 26.167
Isabella, The (1838) 3 Hag. Adm. 427 2.215
Isabelle Lancray SA v. Peters und Sickert KG (C305/88) [ 1990] ECR I—2725;
[1991] I.L.Pr. 99 (ECJ) 28.62
Isca, The (1886) 12 P.D. 34 2.192, 2.199
Ishikazi Kisen Co. Ltd v. US (18-975) AMC 287 (C.A. (US)) 26.142
Island Archon, The. See Triad Shipping Co. v. Stellar Chartering and Brokerage
Inc.
Islanders Canning Corpn. v. Hoekstra District Court Leeuwarden Netherlands ECD
1-17.1.12—B4 5.58
Ismail v. Richards Butler [1996] T.L.R. 107; [1996] 3 W.L.R. 129; [1996] 2 All
E.R. 506 23.111
Israel Discount Bank of New York v. Hadjipateras [1984] 1 W.L.R. 137; [1983] 3
All E.R. 129; [1983] 2 Lloyd's Rep. 490 (C.A. ) 27.44
Italian Cargo of Adulterated Wine, Re (2 U 1795/89) [1991] I.L.Pr. 473 (OLG
(Koblenz)) 14.63
Italian Leather SpA v. Weco Polstermobel GmbH & Co. (C80/00) [2002] I.L.Pr.
41 28.75
Italy II, The [1987] 2 Lloyd’s Rep. 162 15.11
Itel Containers Corpn v. Atlantrafik Express Service Ltd, USCA 2nd Circuit
[1992] LMLN 345 2.220
Itex Itagrani Export SA v. Care Shipping Corpn (The Cebu) (No. 2) [1990] 2
Lloyd's Rep. 316 22.4, 22.21, 22.26
Ivan Zagubanski, The. See Navigation Maritime Bulgare v. Rustal Trading Ltd
Iveco Fiat SpA v. Van Hool SA (C313/85) [1986] ECR 3337; [1988] 1 CMLR 57
(ECJ) 5.45
Ivenel v. Schwab (133/81) [1982] ECR 1891 (ECJ) 6.152
J. & J. Harrison v. Owners of the Carmania II (The Carmania II) [1963] 2 Lloyd's
Rep. 152 2.218
JOB Sales v. Wallenuss Lines [1998] LMLN 474 (US C.A) 12.74
J.F.S. (UK) Ltd v. Dwr Cymru Cyf (No. 1) [1999] 1 W.L.R. 231; [1999] B.L.R. 17
(C.A.) 11.32
J. H. Pigott & Son Ltd v. Owners of the Conoco Britannia (The Conoco Britannia)
[1972] 2 Q.B. 543; [1972] 1 Lloyd's Rep. 342 2.139, 2.192, 2.199, 2.216, 9.61, 10.25,
16.12, 25.30, 25.61, 25.63
J.P. Morgan Europe Ltd v. Primacom [2005] EWHC 508 12.19
JSC Zestafoni Plant v. Ronly Holdings Ltd [2004] 2 Lloyd’s Rep. 335 13.47
Jacobson v. Frachon (1928) 138 L.T. 386 27.35
Jade, The. See Owners of Cargo Lately Laden on Board the MV Erkowit v.
Owners of the Eschersheim (The Eschersheim, the Jade and the Erkowit)
Jalamatsya, The [1987] 2 Lloyd's Rep. 164 15.94
James Miller & Partners Ltd v. Whitworth Street Estates (Manchester) Ltd [1970]
A.C. 583; [1970] 1 Lloyd's Rep. 269 26.82
James Seddon, The v. Jeffares (1866) 1 A. & E. 62 2.94
James W. Elwell, The [1921] P. 351; (1921) 8 Ll . L. Rep. 115 2.98, 15.109,
15.142, 18.88, 23.173, 23.178, 23.180
Janet Wilson, The (1857) Swab. 261 2.99
Jangmi, The (k/a The Grigorpan) [1989] 2 Lloyd's Rep. 1 (C.A.) 9.41
Jarl Tra AB v. Convoys Ltd [2003] 2 Lloyd's Rep. 459 20.26
Jarlinn, The [1965] 2 Lloyd's Rep. 191 15.106
Jarrett v. Barclays Bank plc [1997] I.L.Pr. 531 (C.A.) 5.19, 5.20
Jarvis Brake, The [1976] 2 Lloyd's Rep. 320 15.106, 25.57
Jaura v. Ahmed [2004] EWCA Civ 210 (C.A.) 25.38
Jay Bola, The. See Payabi v. Armstel Shipping Corpn
Jeff Davis, The (1867) L.R. 2 A. & E. 1 23.111
Jemrix, The [1981] 2 Lloyd's Rep. 544 13.38
Jenny Lind, The (1872) L.R. 3 A. & E. 529 23.9, 23.141
Jeumont-Schneider SA v. Gruppo Industriale Ercole Marelli SpA [1994] I.L.Pr. 12
(It. Cass. (I.)) 5.49
Joanna Borchard. The. See Katzenstein Adler Industries (1975) Ltd v. Borchard
Lines
Joannis Vatis, The (No. 2) [1922] P. 213; (1922) 10 L1. L. Rep. 756 15.137
Jogoo, The [1981] 1 Lloyd's Rep. 513 15.116, 23.9
John Carlbom & Co. Ltd v. Owners of the Zafiro (The Zafiro) [1960] P. 1; [1959]
1 Lloyd's Rep. 359 15.48, 15.49
John C Helmsing, The. See Mayer Newman v. A1 Ferro Commodities Corpn SA
John Franetovich & Co. v. Ministry of Defence (The Norwhale) [1975] 1 Lloyd's
Rep. 610 11.24
Johnny Two, The [1992] 2 Lloyd's Rep. 257 15.98
Johnson v. Coventry Churchill International Ltd [1992] 3 All E.R. 14 26.130
Johnson v. Hill (1822) 3 Stark. 172 20.1
Johnson v. Shippin (1704) 1 Salk 35 10.8
Johnson Matthey and Wallace Ltd v. Ahmad Alloush [1985] N.L.J. 1012 (C.A.)
26.32
Jonathan Godhue, The (1858) Swab. 355 18.42
Jones v. Trollope Colls Cementation Overseas (1990) The Times, 26 January
(C.A.) 11.7, 26.34
Jordan Grand Prix Ltd v. Baltic Insurance Group [1999] 1 All E.R. 289; [199 9] 1
Lloyd s Rep. I.R. 93 (H.L.); affirming [1997] T.L.R. 562; [1998] Lloyd's Rep. I.R. 180
(C.A.) 5.73, 6.95, 6.102, 6.104
Jordan Nicolov, The. See Montedipe SpA v. JTP-RO Jugotanker
Jowitt & Sons v. Union Cold Storage Co. [1913] 3 K.B. 1 20.12, 20.25
Joyce v. Joyce [1979] 1 All E.R. 175 11.38
Jugoslavenska Oceanska Plovidba v. Castle Investment Co. Inc. (The Kozara)
[1974] Q.B. 292; [1973] 2 Lloyd's Rep. 1 (C.A.) 25.36
Juntha Rajprueck, The [2003] 2 Lloyd’s Rep. 107 (C.A.) 10.73
Jupiter, The (No. 2) [1925] P. 69; (1925) 21 Ll. L. Rep. 116 (C.A.) 2.126, 12.156
Jurisdiction Clause in an Auctioneer’s Standard Contract, Re [1998] I.L.Pr. 243
(BGH (Ger.)) 6.144
K. Lokumal & Sons (London) Ltd v. Lotte Shipping Co. Pte Ltd (The August
Leonhardt) [1984] 1 Lloyd’s Rep. 322 11.4
KCM Plc v. Coromin [2005] EWHC 898 (Comm) 5.57
K/S A/S Admiral Shipping v. Portlink Ferries [1984] 2 Lloyd's Rep. 166 (C.A.)
16.44, 23.118
Kahan v. Pakistan Federation [1951] 2 K.B. 1003 (C.A.) 12.115
Kaleten, The (1914) 30 T.L.R. 572 18.39
Kalfelis v. Bankhaus Schroder, Munchmeyer, Hengst & Co. (t/a Hema
Beteiligungsgesellschaft mbH) (189/87) [1988] ECR 5565 6.1, 6.126, 6.159, 6.188
Kalmneft JSC v. Glencore International AG [2002] 1 All E.R. 76: [2002] 1 Lloyd's
Rep. 128 13.47
Kapetan Markos NL (No. 1), The. See Hispanica de Petroles SA v. Vencedora
Oceanica Navegacion SA
Karlung v. Svensk Vagguide Comertex AB [1999] I.L.Pr. 298 (H.R. (N.)) 5.86,
6.139
Karnak, The (1869) L.R. 2 P.C. 505 2.97
Katingaki, The [1976] 2 Lloyd's Rep. 372 15.111, 20.4, 20.32
Katzenstein Adler Industries (1975) Ltd v. Borchard Lines (The Joanna Borchard)
[1988] 2 Lloyd's Rep. 274 11.33
Keary Developments Ltd v. Tarmac Construction Ltd [1995] 3 All E.R. 534 (C.A.)
14.36
Kenburn Waste Management Ltd v. Bergmann [2002] EWCA Civ 98; [2002] I.L.Pr.
33 (C.A.) 6.128, 6.145
Kenya Railways v. Antares Co. Pte Ltd (The Antares) (No. 1) [1987] 1 Lloyd’s
Rep. 424 (C.A.) 11.18, 13.52
Ketteman v. Hansel Properties Ltd [1987] A.C. 189; [1987] 2 W.L.R. 312; [1988]
1 All E.R. 38 (H.L.) 11.19, 11.33, 11.34
Kherson, The [1992] 2 Lloyd's Rep. 261 12.64, 15.82
Kianta Osakeyhtio v. Britain & Overseas Trading Co. [1954] 1 Lloyd's Rep. 247
(C.A.) 13.60
King v. Crown Energy Trading AC [2003] EWHC 163 5.85
Kinnear v. Falconfilms NV [1994] 3 All E.R. 42 6.193
Kleinwort Benson Ltd v. Barbrak Ltd (The Myrto) [1987] J Lloyd's Rep. 1 (H.L.)
11.25
Kleinwort Benson Ltd v. City of Glasgow DC (C346/93) [1995] All E.R. (EC )
514 (ECJ) 4.33, 6.136, 6.161, 7.8
Kleinwort Benson Ltd v. Glasgow City Council (No. 1) [1994] 4 All E.R. 865
(C.A.) 7.22, 7.24
Kleinwort Benson Ltd v. Glasgow City Council (No, 2) [1997] 4 All E.R. 641;
[1998] Lloyd's Rep. Bank. 10 (H.L.) 6.136, 6.138, 6.161, 7.22
Kleinwort Benson Ltd v. Lincoln City Council [1998] 4 All E.R. 513; [1998]
Lloyd's Rep. Bank. 387 (H.L.) 11.29
Kloebe, Re (1885) L.R. 28 Ch. D. 175 26.38
Klomps v. Michel (166/80) [1981] ECR 1593; [1982] 2 CMLR 773 (ECJ) 28.62,
28.66, 28.71
Knauf UK GmbH v. British Gypsum Ltd (No. 1) [2001] EWCA Civ 1570; [2002] 1
Lloyd's Rep. 199; [2002] 1 W.L.R. 907 (C.A.) 5.88, 9.45, 9.46, 12.34
Knauf UK GmbH v. British Gypsum Ltd (No. 2) [2002] 1 Lloyd's Rep. 907 5.92
Knight v. Rochdale Healthcare NHS Trust [2004] 1 W.L.R. 371 11.28
Kohn v. Rinson & Stafford (Bros) Ltd [1947] 2 All E.R. 839 14.40
Komninos S, The. See Hellenic Steel Co. v. Svolamar Shipping Co. Ltd
Kommunar (No. 1), The. See Centro Latino Americano de Commercio Exterior SA
v. Owners of the Kommunar
Kong Magnus, The [1891] P. 223 11.37
Kongress Agentur Hagen GmbH v. Zeehaghe BV (C365/88) [1990] ECR I -1845;
[1991] I.L.Pr. 3 (ECJ) 6.195
Konkola Copper Mines Plc v. Coromin [2005] EWHC 898 4.38
Konstantinidis v. World Tankers Corpn Inc. (The World Harmony) [1967] P. 341;
[1965] 1 Lloyd's Rep. 244 11.24, 26.180
Koop, re the M/S [1982] ECC 333 (BGH) 6.146
Koop v. Bebb (1957) 84 C.L.R. 629 (H.C. (Aus.)) 26.5
Kribi (No. 1), The. See OT Africa Line Ltd v. Hijazy
Kronprinz Olav, The [1921] P. 52; (1920) 5 L1. L. Rep. 203 (C.A.) 24.85, 24.128
Krunhofer v. Maier (Case C—168/02) Judgment 10 June 2004 6.162
Kurz v. Stella Musical Veranstaltungs GmbH [1992] 1 All E.R. 630 5.34, 5.44,
9.56
Kusu Island, The (1989) (Sigapre C.A.) 10.79
Kuwait Airways Corpn v. Iraqi Airways Co (No. 1) [1995] 2 Lloyd's Rep. 317
(H.L.); affirming in part [1994] 1 Lloyd's Rep. 276 12.118
Kuwait Airways Corpn v. Iraqi Airways Co (Nos 4 and 5) [2002] 2 A.C. 883
(H.L.) 26.9
Kuzma Gridash 2001 HKEC 929 (Hong Kong) 2.180
Kwasind, The (1915) 84 L.J.P. 102 2.168
Kyriaki, The. See Bank of America National Trust and Savings Association v.
Chrismas
LTU GmbH & Co. KG v. Eurocontrol (C29/76) [1976] ECR 1541; [1977] 1 CMLR
88 (ECJ) 4.24, 28.12
La ConStancia (1846) 2 W. Rob. 404; (1846) 4 Not.Cas. 512 2.114, 18.10
La Pintada (No. 1), The. See President of India v. La Pintada Compania
Navigacion SA
Lady Katherine Barham, The (1861) Lush. 404 18.109
Lady Navigation Inc. v. Lauritzencool, AB [2005] EWCA Civ 579 (C.A.) 25.42
Laemthong International Lines Co. Ltd v. Artis [2005] 1 Lloyd's Rep. 100 16.38
Laemthong International Lines Co. Ltd v. BPS Shipping Ltd [1997] 149 A.L.R. 675
10.39
Lafi Office & International Business SL v. Meriden Animal Health Ltd [2000] 2
Lloyd's Rep. 51 5.68, 12.46
Lakah v. Al Jaazeera [2003] EWHC 1297 9.24
Lake Avery, The. See Union de Remorquage et de Sauvetage SA v. Lake Avery Inc
Lakhta, The [1992] 2 Lloyd's Rep. 269 2.124, 12.102
Lamb (W.T.) & Sons v. Rider [1948] 2 All E.R. 402 (C.A.) 11.48
Lancaster. The. See Ellerman Lines Ltd v. Lancaster Maritime Co. Ltd
Landcatch Ltd v. International Oil Pollution Compensation Fund [1999] 2 Lloyd's
Rep. 316 2.151
Landhurst Leasing Plc v. Marcq [1998] I.L.Pr. 822 (C.A.) 27.52, 28.9, 28.11, 28.76
Langen & Wind Ltd v. Bell [1972] 1 All E.R. 296 21.12
Lauritzen v. Larsen (1952) 345 U.S. 271 26.30
Lavington International Ltd v. Bareboat Charterers of Nore Challenger and Nore
Commander [2001] 2 Lloyd's Rep. 103 2.218
Law Guarantee and Trust Society v. Russian Bank for Foreign Trade [1905] 1 K.B.
815 (C.A.) 23.45
Lazenby (James) & Co. v. McNicholas Construction Co. Ltd [1995] 3 All E.R.
820; [1995] 2 Lloyd's Rep. 30 13.58
Leathertex Divisione Sintetici SpA v. Bodetex BVBA (C420/97) [1999] 2 All E.R.
(Comm) 769; [1999] ER I-6747; [2000] I.L.Pr. 273 (ECJ) 6.145
Leerort, The; sub nom. Schiffahrtsgesellschaft MS Merkur Sky mbH & Co. KG v.
MS Leerort Nth Schiffahrts GmbH & Co. KG [2001] 2 Lloyd's Rep. 291
Leif Hoegh & Co. A/S v. Petrolsea Inc. (The World Era) (No. 2) [1993] 1 Lloyd's
Rep. 363 13.44
Leigh and Sillivan Ltd v. Aliakmon Shipping Co. Ltd (The Aliakmon) [1986] 2 All
E.R. 145; [1986] 2 Lloyd's Rep. 1 (H.L.) 10.47, 21.12, 23.18
Leni, The. See Transworld Oil (USA) Inc. v. Minos Compania Naviera SAL
Lennox Lewis v. King [2004] EWCA Civ 1329 12.97, 12.100
Leo, The (1862) Lush. 444 18.41
Leoborg, The [1962] 2 Lloyd's Rep. 146 2.216
Leoborg, The (No. 4) [1964] 1 Lloyd's Rep. 380 18.14, 18.88, 23.9, 23.9, 23.126,
23.133, 23.158
Leon XIII, The (1883) 8 P.D. 121 12.154
Leon Blum, The [1915] P. 290 18.114
Leon, The (1881) 6 P.D. 148 26.122
Leond Maritime Inc. v. MC Amethyst Shipping Ltd (The Anna L) [1994] 2 Lloyd's
Rep. 379 11.28
Leroux v. Brown (1852) 12 C.B. 801 26.46
Les Verreries de Saint-Gobain SA v. Martinswerk GmbH [1999] I.L.Pr. 296 (Cass.
(F.)) 6.149
Lesotho Highland Development Agency v. Impreglio SpA [2004] 1 All E.R.
(Comm) 97 (C.A.) 13.36
Leur-Bloem v. Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2
(C28/95) [1998] 2 W.L.R. 27 (ECJ) 7.8
Levy v. Barnard (1819) 8 Taunt. 149 20.19
Lewis v. Eliades [2004] 1 W.L.R. 692 (C.A.) 27.58
Lexmar Corpn and Steamship Mutual Underwriting Association (Bermuda) Ltd v.
Nordisk Skibsrederforening [1997] 1 Lloyd's Rep. 289 4.28
Leyland DAF Ltd (No. 1), Re [1993] B.C.C. 426 20.1
Liability for Investment in Futures Options (XI ZR 377/97), Re [1999] I.L.Pr. 758
(BGH (Ger.)) 27.35
Lieber v. Gobel (C292/93) [1994] ECR I—2535; [1994] I.L.Pr. 590 (ECJ) 5.20
Liff v. Peasley [1980] 1 All E.R. 623 (C.A.) 11.33
Lincoln National Life Insurance v. Sun Life Assurance of Canada [2005] 1 Lloyd's
Rep. 606 27.8
Linda, The [1988] 1 Lloyd's Rep. 175 12.36, 12.49
Linda Flor, The (1857) Swab. 309 23.9, 23.133, 23.134
Lindsay Petroleum Co. v. Hurd (1874) L.R. 5 P.C. 221 (P.C. (Can.)) 11.38
Linea Naviera Paramaconi SA v. Abnormal Load Engineering Ltd [2001] 1 Lloyd's
Rep. 763 11.18
Lines Bros (In Liquidation) (No. 1), Re [1983] Ch. 1; [1982] 2 W.L.R. 1010;
[1982] 2 All E.R. 183 (C.A.) 25.36
Lipkin Gorman v. Karpnale Ltd [1991] 2 A.C. 548; [1991] 3 W.L.R. 10; [1992] 4
All E.R. 512 (H.L.) 26.146
Lisboa, The. See Mike Trading and Transport v. R. Pagnan & Fratelli
Lister v. Stubbs (1890) 45 Ch.D. 1 14.14, 14.30
Littauer Glove Corpn v. FW Millington (1928) 44 T.L.R. 746 27.38
Livietta, The (1883) 8 P.D. 209 23.17 1
Llandovery Castle, The [1920] P. 119; (1920) 2 L1. L. Rep. 273 11.3
Lloyd Pacifico, The [1995] 1 Lloyd's Rep. 54 2.194, 2.195, 2.219, 2.232, 15.97,
15.118
Lloyd v. Guibert (1865) L.R. 1 Q.B. 115 26.153
Lloyd v. Wright [1983] 2 All E.R. 969 (C.A.) 13.18
Lloyds Bowmaker Ltd v. Britannia Arrow Holdings [1988] 3 All E.R. 178; [1988]
1 W.L.R. 1337 11.38, 16.40
Lloyd's Register of Shipping v Societe Campenon Bernard (C439/93) [1995] All
E.R. (EC) 531; [1995] ECR I-961; [1995] I.L.Pr. 457 (ECJ) 6.177
Lombard North Central v. Lord Advocate 1983 S.L.T. 361 23.83
London and Cheshire Insurance Co. Ltd v. Laplagrene Property Co. Ltd [1971] Ch.
499; [1971] 2 W.L.R. 257; [1971] 1 All E.R. 766 23.63
Lord Strathcona Steamship Co. Ltd v. Dominion Coal Co. Ltd [1926] A.C. 108;
(1925) 23 Ll L. Rep. 145 (P.C. (Can.)) 15.114
Lord Strathcona, The (No. 3) [1926] P. 18; (1925) 23 Ll. L. Rep. 225 15.114
Lord Warden of the Cinque Ports v. R. (1831) 2 Hag. Adm. 438 2.135
Lorna Doon, The [1993] LMLN 367 (Ct of FI (Piraeus, Greece) No. 2505/1991);
(Cour d'App. (d'Aix en Provence, France) 9 June) 24.40
Lougher v. Donovan [1948] 2 All E.R. 11 (C.A.) 11.48
Loucks v. Standard Oil Co. 224 N.Y. 99 (1918) 26.68
Lowland Yachts BV v. Firma Dahm International GmbH (Case 89/139) [1991]
I.L.Pr. 350 (RB (Den Haag)) 14.63
Lowsley v. Forbes (t/a LE Design Services) [1998] 3 All E.R. 897; [1998] 2
Lloyd's Rep. 577 (H.L.) 11.48
Lubbe v. Gape Plc (No. 2) [2000] 1 Lloyd's Rep. 139; [1999] I.L.Pr. 113 (C.A.)
12.102, 12.103
Lusitania, The. See Pierce v. Bemis
Luz v. Bertram [1992] I.L.Pr. 537 (It Ct di Cass. (I.)) 5.47
Lyle Shipping Co. v. Cardiff Corpn [1900] 2 Q.B. 638 17.21, 22.5
Lyrma (No. 2), The [1978] 2 Lloyd's Rep. 30 2.47, 2.49, 14.25, 23.133, 23.136,
23.137, 23.139, 23.144
M Eregli, The. See Tradax Internacional SA v. Cerrahogullari TAS
MB Pyramid Sound NV v. Briese Schiffahrts GmbH & Co. KG MS "Sina" (The
Ines) (1993) [1993] 2 Lloyd's Rep. 492 9.87
MBPXL Corpn v. International Banking Corpn [1975] C.A. Transcript 411 16.15
MC Pearl, The. See Mahavir Minerals Ltd v. Cho Yang Shipping Co. Ltd
MRG (Japan) Ltd v. Englehard Metals Japan Ltd [2003] EWHC 3418 9.83
MSC Mediterranean Shipping Co. SA v. Delumar BVBA (The MSC Rosa M)
[2000] 2 Lloyd's Rep. 399 24.64
MSC Mediterranean Shipping Co. SA v Polish Ocean Lines (The Tychy) (No. 1)
[1999] 2 Lloyd's Rep. 11 (C.A.) 2.139, 2.192, 2.194, 10.26, 10.38, 10.39, 10.40, 10.42,
15.118, 24.51
MSG (Mainschiffahrts Genossenschaft eG) v. Les Gravieres Rhenanes Sari
(CI06/95) [1997] All E.R. (E.C.) 385 (ECJ) 5.47, 6.157
M/4 Swibon [1985] AMC 722 24.119
Mac, The (1882) 7 P.D. 126 18.31
Macartney (No. 2), Re [1921] 1 Ch. 522 27.3 5
McGowan v. Summit at Lloyd's (Court of Session, 12 June 2002) 7.26
Machinale Glasfabriek de Maas BV v. Amaillerie Alsacienne SA [1984] ECC 124
(R.B. (Arnhem)) ... 6.146
Maciej Rataj, The. See Owners of Cargo Lately Laden on Board the Tatry v.
Owners of the Maciej Rataj
Mackender v. Feldia AG [1966] 2 Lloyd’s Rep. 449; [1966] 3 All E.R. 847 (C.A.)
26.17, 26.59
Mackinnon v. Donaldson Lufkin & Jenrette Securities Ltd [1986] 1 All E.R. 653
3.4, 14.9, 16.11A, 25.8
Mackinnon v. Iberia Shipping Co. [1954] 2 Lloyd’s Rep. 372; 1955 S.C. 20 (1
Div.) 26.44, 26.138
Maclaine Watson & Co. Ltd v. International Tin Council (No. 1) [1988] 3 All E.R.
257 (C.A.) 12.113
Macmillan Inc. v. Bishopsgate Investment Trust Pic (No. 3) [1996] 1 All E.R. 585
(C.A.) 26.4, 26.22, 26.28, 26.36, 26.38, 26.43, 26.52, 26.146, 26.163, 26.178
MacShannon v. Rockware Glass Ltd [1978] A.C. 795; [1978] 1 All E.R. 625
(H.L.) 12.94, 12.96
Madonna D. Idra, The (1811) 1 Dods. 37 23.140
Maersk Nimrod, The. See Petrofina SA v. AOT
Maersk Olie and Gas A/S v. Firma M de Haan (C—39/02) [2005] 1 Lloyd's Rep.
210 (ECJ) 6.89, 12.40, 12.50, 12.105, 24.113, 24.13 1, 28.16
Maharanee Seethadevi Gaekwar of Baroda v. Wildenstein [1972] 2 All E.R. 689
(C.A.) 9.18
Maharani Woollen Mills Co. v. Anchor Line (1927–28) 29 Ll. L. Rep. 169 (C.A.)
12.70
Mahavir Minerals Ltd v. Cho Yang Shipping Co. Ltd (The MC Pearl) [1997]
lLloyd'sRep. 566 11.9, 11.11, 12.83, 12.84
Mahkutai, The [1996] 2 Lloyd's Rep. 1 (P.C.) 12.62
Maitre de Grandpre v. Ifafood SA [1993] I.L.Pr. 657 (Cour d'A. (Paris)) 28.54
Maitre Pierrel v. Ergur [1993] I.L.Pr. 523 (C d'A (Paris)) 4.27
Makefjell, The [1976] 2 Lloyd's Rep. 29 (C.A.) 12.76, 12.79,12.81
Manchester Ship Canal Co. v. Horlock [1914] 1 Ch. 453 20.59
Mangles v. Dixon (1852) 3 H.L. Cas. 702 18.78
Mansour v. Mansour (1989) The Times, 2 January 11.4
Manta Line Inc. v. Seraphim Sofianites [1984] 1 Lloyd's Rep. 14 (C.A.) 9.56
Mara, The. See Mawan, The
Marazura Navegacion SA v. Oceanus Mutual Underwriting Association (Bermuda)
Ltd and John Laing (Management) Ltd [1977] 1 Lloyd's Rep. 283 15.96
Marc Rich & Co. AG v. Societa Italiana Impianti SpA (The Atlantic Emperor)
[1989] 1 Lloyd’s Rep. 548 (C.A.) 26.19, 26.73
Marc Rich & Co. AG v. Societa Italiana Impianti PA (The Atlantic Emperor) (No.
2) [1992] 1 Lloyd’s Rep. 624 (C.A.) 13.17, 13.20, 27.40
Marc Rich & Co. AG v. Societa Italiana Impianti pA (C190/89) [1992] 1 Lloyd's
Rep. 342 (ECJ) 4.29, 14.79
Marc Rich & Co. AG v. Societa Italiana Impianti pA [1993] I.L.Pr. 402 (Cor. Di
Cass.) 4.31
Marc Rich & Co Holding GmbH v. Krasner, 15 January 1999, CHANI 99/0009/3
(C.A.) 14.33
Marco Reefer, The [1981] LMLN 50 25.56
Mardina Merchant, The [1974] 2 Lloyd's Rep. 424; [1974] 3 All E.R. 749 10.80,
10.84, 15.99, 15.107, 5.115
Mareva Compania Naviera SA v. International Bulk Carriers SA (The Mareva)
[1975] 2 Lloyd's Rep. 509 (C.A.) 14.26
Margaret Jane, The (1869) L.R. 2 A. & E. 345 15.117
Margarethe Mana, The [2002] EWCA Civ 509 2.28
Margolle v. Delta Marine Co. Ltd [2003] 1 Lloyd's Rep. 203 24.63
Mari Chandris, The [No. 3) [1942] P. 94; (1941) 71 L1. L. Rep. 225 15.143
Marie Brizard et Roger International SA, Petitioners [1997] ECC 366; [1997]
I.L.Pr. 373 28.101, 28.104
Marie Gartz, The (Charging Order) [1920] P. 460 23.111
Marie Glaeser, The [1914] P. 218 18.20
Mariannina, The. See Astro Venturoso Compania Naviera v. Hellenic Shipyards
SA
Marie Leonhardt, The. See Clipper Maritime Co Ltd of Monrovia v. Mineral
Import-Export
Marinari v. Lloyds Bant Plc (C364/93) [1995] I.L.Pr. 737 (ECJ) 6.162
Marinero, The. See Owners of the Cressington Court v. Owners of the Marinero
Marinor, The. See Noranda Inc. v. Barton (Time Charter) Ltd
Maritime Harmony, The [1982] 2 Lloyd's Rep. 400 26.142
Maritime Trader, The. See Unitramp SA v. Maritime Trader
Maritime Transport Operators GmbH v. Louis Dreyfus & Cie (The Tropwave)
[1981] 2 Lloyd's Rep. 159 22.32
Marks & Spencer plc v. Customs and Excise Commissioners ((ECJ) Case 62/00]
[2003] 2 W.L.R. 111 1.34
Marlex Petroleum v. The Ship "Har Rai" (1984) 4 D.L.R. (4th) 739 26.171
Maronier v. Larmer [2003] 1 All E.R. (Comm.) 225 28.56
Martin Fierro, The [1974] 2 Lloyd's Rep. 203 26.142
Marubeni Corpn v. Pearlstone Shipping Corpn (The Puerto Acevedo) [1978] 1
Lloyd's Rep. 38 (C.A.) 11.19
Mary Ann,. The (1845) 9 Jur. 94 23.140, 23.144
Mary Ann, The (No. 1) (1865 ) L.R. 1 A. & E. 8 2.72, 19.3
Mason v. Uxbridge Boat Centre and Wright [1980] 2 Lloyd's Rep. 592 24.171
Masters v. Leaver (No. 2) [2000] I.L.Pr. 387 (C.A.) 27.6
Matharu v. Matharu [1994] 2 F.L.R. 597; [1994] 3 F.C.R. 216; (1994) The Times,
13 May 21.13
Mathilde Maersk, The, 22 December 2003 [2004] LMLN 636 12.72
Matija Gubec, The. See Gulf Shipping Lines Ltd v. Jadranska Slobodna Plovidba
Maunns v. Henderson (1801) 1 East 335 20.53
Mauritius Oil Refineries Ltd v Stolt-Nielsen Nederlands BV (The Stolt Sydness)
[1997] 1 Lloyd's Rep. 273 11.18, 26.22, 26.66
Mawan (Now Named Mara), The [1988] 2 Lloyd's Rep. 459 10.81, 15.1 14
Mayer Newman v. A1 Ferro Commodities Corpn SA (The John C Helmsing)
[1990] 2 Lloyd's Rep. 290 9.98. 13.23
May hew Foods v. Overseas Containers [1984] 1 Lloyd's Rep. 317 26.11
Meadows Indemnity Co. Ltd v. Insurance Corpn of Ireland Pic [1989] 2 Lloyd's
Rep. 298 (C.A.); reversing [1989] 1 Lloyd's Rep. 181 12.102, 12.104
Meandros, The [1925] P. 61; (1924) 20 Ll. L. Rep. 316 18.53, 18.64, 18.66, 18.67,
18.69
Mecklermedia Corpn v. DC Congress GmbH [1998] 1 All E.R. 148 5.91, 6.163,
6.185
Medicale Equipex SA v. Farmitalia Carlo Erba Srl [1990] I.L.Pr. 192 (Cour. d’A.
(Versailles)) 28.18, 28.101
Med way Dry dock and Engineering Co. v. Owners of the MV Andrea Ursula (The
Andrea Ursula) [1973] Q.B. 265; [1971] 1 Lloyd's Rep. 145 10.32
Med way Packaging Ltd v. Meurer Maschinen GmbH & Co. KG [1990] 2 Lloyd's
Rep. 112 (C.A.) 6.144, 6.146, 6.151, 12.155
Meeth (Nikolous) v. Glacetal Sarl (C23/78) [1978] ECR 2133; [1979] 1 CMLR
520 (ECJ) 5.53, 5.54
Mekhanik Evgrafov, The. See Baltic Shipping Co. v. Owners of Cargo on the
Mekhanik Evgrafov
Melbourn, Ex p. (1871) L.R. 6 Ch. App. 64 26.38
Menetone v. Gibbons (1789) 3 T.R. 267 10.8, 18.8
Merak, The. See TB&S Batchelor & Co. Ltd v. Owners of the SS Merak
Mercantile Group (Europe) AG v. Aiyela [1994] 1 All E.R. 110 (C.A.) 16.2,
16.52, 25.67
Mercedes-Benz AG v. Leiduck [1995] 2 Lloyd’s Rep. 417 (P.C.) 9.89, 14.27, 16.4,
16.14, 23.102, 23.118
Mercury Communications Ltd v. Director General of Telecommunications [1996] 1
W.L.R. 48; [1996] 1 All E.R. 575 (H.L.) 25.49
Mercury Publicity Ltd v. Wolfgang Loerke GmbH [1993] I.L.Pr. 142 (C.A.) 6.146,
6.147, 6.152
Merle, The (1874) 2 Asp. M.L.C. 402 2.117
Merzario (Andrea) Ltd v. Internationale Spedition Leitner Gesellschaft GmbH
[2001] 1 Lloyd's Rep. 490 (C.A.) 12.6
Messier Dowty Ltd v. Sabena SA (Appeal against Set Aside) [2000] 1 Lloyd's
Rep. 428 (C.A.) 6.192, 9.4, 12.18, 25.49, 25.51
Messiniaki Tolmi, The. See Astro Exito Navegacion SA v. W.T. Hsu
Messiniaki Tolmi (No. 2), The. See Astro Exito Navegacion SA v. Southland
Enterprise Co.
Metall und Rohstoff AG v. Donaldson Lufkin & Jenrette Inc. [1990] 1 Q.B. 391;
[1989] 3 W.L.R. 563; [1989] 3 All E.R. 14 (C.A.) 12.100, 26.120
Midland Bank Plc v. Laker Airways Ltd [1986] Q.B. 689; [1986] 2 W.L.R. 707;
[1986] 1 All E.R. 526 (C.A.) 25.18
Mietz v. Intership Yachting Sneek BV (C99/96) [1999] ECR I -2277; [1999] I.L.Pr.
541 (ECJ) 6.117, 14.60, 14.61, 14.66
Mikado, The. See NCNB Texas National Bank v. Evensong Co.
Mike Trading and Transport v. R. Pagnan & Fratelli (The Lisboa) [1980] 2 Lloyd's
Rep. 546 12.63, 15.96
Miles Piatt Ltd v. Townroe Ltd [2003] 1 All E.R. (Comm.) 561 12.17
Miliangos v. George Frank (Textiles) Ltd (No. 1) [1976] A.C. 443; [1976] 1
Lloyd's Rep. 201 (H.L.) 25.36
Minalmet GmbH v. Brandeis Ltd (C123/91) [1992] ECR I —5661; [1993] I.L.Pr.
132 (ECJ) 28.69
Minerva, The [1933] P. 224; (1933) 46 L1. L. Rep. 212 2.66
Minister of Public Works of Kuwait v. Sir Frederick Snow & Partners [1984] 1
Lloyd's Rep. 458 (H.L. ); [1981] 1 Lloyd's Rep. 656 13.9, 27.65
Minster Investments Ltd v. Hyundai Precision & Industry Co. Ltd [1988] 2 Lloyd's
Rep. 621 6.163
Minna Craig Steamship Co. v. Chartered Mercantile Bank of India London and
China [1897] 1 Q.B. 460 (C.A.); affirming [1897] 1 Q.B. 55 27.36
Miranores v. Owners of the George Livanos (The Miranores, The Abadesa and
The Livanos) [1967] 1 A.C. 826; [1967] 1 Lloyd's Rep. 191 2.146
Miramar Maritime Corpn v. Holborn Oil Trading (The Miramar) [1984] 2 Lloyd's
Rep. 129 (H.L.); affirming [1984] 1 Lloyd's Rep. 142 (C.A.); affirming [1983] 2
Miriam, The (1874) 2 Asp. M.L.C. 259 15.62
Missing Share Certificates, Re (15 U 5989/88) [1991] I.L.Pr. 298 (OLG
(Munchen)) 5.36
Mito, The [1987] 2 Lloyd's Rep. 197 16.30
Mode Jeune Diffusion SA v. Maglificio il Falco di Tiziana God [1998] I.L.Pr. 812
(Cass. (F.)) 6.149
Modus Vivendi Ltd v. British Products Sanmex Co. Ltd [1997] I.L.Pr. 654 6.163
Moliere, The [1925] P. 27; (1924) 20 L1. L. Rep. 101 2.168
Molins Plc v. GD SpA [2000] 2 Lloyd's Rep. 234 (C.A.) 9.22
Molnlycke AB v. Procter & Gamble Ltd (No. 4) [1992] 4 All E.R. 47 (C.A.) 5.82,
9.75
Monaco Philomel, The (1968) (ureported) 18.108
Monica S, The. See Owners of Cargo Laden on Board the Monica Smith v Owners
of the Monica Smith
Mons. The; sub nom. Mots. The v. Eirini N Rallia, The [1932] P. 109; (1932) 43
Ll. L. Rep. 151 23.9, 23.133, 23.141, 23.142, 23.143
Montedipe SpA v. JTP-RO Jugotanker (The Jordan Nicolov) [1990] 2 Lloyd's
Rep. 11 13.17
Monterosso Shipping Co. v. International Transport Workers' Federation (The
Rosso) [1982] 2 Lloyd's Rep. 120 (C.A.) 26.14, 26.70
Moorgate Mercantile Co. Ltd v. Twitchings [1977] A.C. 890; [1976] 3 W.L.R. 66;
[1976] 2 All E.R. 641 (H.L.); reversing [1976] Q.B. 225; [1975] 3 W.L.R. 286; [1975]
3 All E.R. 314 (C.A.) 21.13, 23.42
Mora Shipping Inc. v. Axa Assurance SA and Ors [2005] EWCA Civ 1069 6.128
Morgan v. Steamship Castlegate and the Freight Due for the Transporta tion of the
Cargo Lately Laden on Board [1893] A.C. 38 (H.L.) 2.90, 2.95, 18.38, 18.39, 18.40,
18.58, 18.64, 18.65, 18.70, 18.84
Morgan EST (Scotland) Ltd v. Hanson Concrete Products Ltd [2005] EWCA Civ
134 9.41
Morley v. Hay (1829) 7 L.J.K.B. (O.S.) 104 20.20
Morlines Agency Ltd v. Proceeds of Sale of Ship Skulptor Vuichetich (1997)
26. 171
Morviken, The. See Owners of Cargo on Board the Morviken v. Owners of the
Hollandia (The Hollandia and the Morviken)
Moschanthy, The [1971] 1 Lloyd's Rep. 37 10.27, 10.67, 12.157, 15.120, 15.140,
18. 109
Moscow City Council v. Bankers Trust Co. [2004] 2 Lloyd's Rep. 179 (C.A) 13.1,
25.46
Motorola Credit Corporation v. Uzan [2004] 1 W.L.R. 113 16.28
Mouana, The [1991] 2 Lloyd's Rep. 441 11.4
Mousaka Inc. v. Golden Seagull Maritime Inc. [2001] EWCA Civ 576 0.17
Mulliner v. Florence (1878) 3 Q.B.D. 484 (C.A.) 20.2
Mulox IBC Ltd v. Geels (C125/92) [1993] ECR I–4075; [1993] I.L.Pr. 668 (ECJ)
6.152, 6.153
Murthy v. Sivajothi [1999] 1 W.L.R. 467; [1999] 1 All E.R. 721; [1999] I.L.Pr.
320 (C.A.) 27.6, 27.39
Myerson v. Martin [1979] 3 All E.R. 667 (C.A.) 9.18, 9.22, 9.48
Myrto, The. See Kleinwort Benson Ltd v. Barbrak Ltd
Myrto (No. 3), The [1978] 1 Lloyd’s Rep . 11 (C.A.); reversing [1977] 2 Lloyd’s
Rep. 243 9.37, 14.23, 15.126, 23.9, 25.55
NCNB Texas National Bank v. Evensong Co. (The Mikado) [1992] 1 Lloyd's Rep.
163 2.123, 2.244, 14.23
NWL Ltd v. Woods (The Nawala) (No. 2) [1979] 3 All E. R. 614; [1980] 1 Lloyd's
Rep. 1 (H.L.) 14.20
Nagasaki Spirit. The [1994] LMLN 386 (H.C. (Sing.)) 23.9
Nai Genova, The and The Nai Superba. See Agip SpA v. Navigazione Alta Italia
SpA
Nanfri, The [1979] A.C. 757; [1979] 1 Lloyd's Rep. 201 (H.L.) 22.12, 22.14,
22.21
Napier (Lord) and Ettrick v. Hunter [1993] 1 All E.R. 385; [1993] 1 Lloyd's Rep.
197 (H.L.) 26.146
Nasser v. United Bank of Kuwait (Security for Costs) [2002] 1 All E.R. 401 (C.A .)
14.38
National Bank of Greece and Athens SA v. Metliss [1958] A.C. 509; [1957] 3
W.L.R. 1056; [1957] 3 All E.R. 608 (H.L.) 11.6
National Iranian Oil Co v. Banque Paribas (Suisse) [1993] LMLN 366 15.116
National Justice Compania Naviera SA v. Prudential Assurance Co Ltd (The
Ikarian Reefer) (No. 2); sub nom. Comnimos v. Prudential Assurance Co. Ltd [2000] 1
Lloyd's Rep. 129; [2000] 1 All E.R. 37 (1999) 149 N.L.J. 1561 (C.A.) 4.35, 4.41,
6.188, 6.193, 9.72
Naviera Amazonica Peruana SA v. Compania Internacional de Seguros de Peru
[1988] 1 Lloyd's Rep. 116 (C.A.) 13.35
Navigation Maritime Bulgare v. Rustal Trading Ltd (The Ivan Zagubanski) [2002]
1 Lloyd's Rep. 106 4.30. 5.44, 28.12
Navigazione Alta Italia SpA v. Concordia Maritime Chartering AB (The Stena
Pacinca) [1990] 2 Lloyd's Rep. 234 13.17
Navarro v. Larrinaga Steamship Co. Ltd (The Niceto de Larrinaga) [1966] P. 80;
[1965] 2 Lloyd's Rep. 134 11.24
Nazym Khikmet, The. See Owners of Cargo Lately on Board the Nazym Khikmet v.
Owners of the Nazym Khikmet
Near East Relief v. King Chasseur & Co. Ltd [1930] 2 K.B. 40; (1930) 36 L1. L.
Rep. 91 20.26, 20.54
Nelson, The (1805) 7 C. Rob. 227 2.114, 2.2 17
Nelson, The (1823) 1 Hag. Adm. 169 2.97
Nema (No. 2), The. See Pioneer Shipping Ltd v. BTP Tioxide Ltd
Neptune, The (1824) 1 Hag. Adm. 227 2.46, 18.8, 18.30
Nerarno, The. See Daval Aciers D'Usinor et de Sacilor v. Armare Srl
Neste Chemicals SA v. DK Line SA (The Sargasso) [1994] 2 Lloyd's Rep. 6
(C.A.) 5.33, 12.17, 12.29, 15.135, 16.10
Nestor, The (1831) 18 Fed. Cas. 9 10.13, 18.19
Netherlands v. Ruffer (C814/79) [1980] ECR 3807; [1981] 3 CMLR 293 (ECJ)
4.25, 6.9
Network Telecom (Europe) Ltd v. Telephone Systems International Inc. [2004] 1
All E.R. (Comm.) 418 9.83
New Hampshire Insurance Co. Ltd v. Aerospace Finance Ltd [1998] 2 Lloyd's
Rep. 539 12.157
New Hampshire Insurance Co. Ltd v. Strabag Bau AG [1992] 1 Lloyd's Rep. 361
(C.A.) 4.31, 6.98
Newport Association Football Clu b Ltd v. Football Association of Wales Ltd
[1995] 2 All E.R. 87 14.21
Newtherapeuties Ltd v. Katz [1991] 2 All E.R. 151 5.22, 9.87
Niceto de Larrinaga, The. See Navarro v. Larrinaga Steamship Co. Ltd
Nickolay Golanov, The [1994] LMLN 391 2.220
Niedersachsen, The. See Ninemia Maritime Corpn v. Trave Schiffahrts GmbH &
Co. KG
Nile, The (1875) 3 Asp. M.L.C. 11 12.145
Nile Rhapsody, The. See Hamed el Chiaty & Co. (t/a Travco Nile Cruise Lines) v.
Thomas Cook Group Ltd
Nina, The (1867) L.R. 2 A. & E. 44; (1867) L.R. 2 P.C. 38 12.154
Ninemia Maritime Corpn v. Trave Schiffahrts GmbH & Co. KG (The
Niedersachsen) [1983] 2 Lloyd's Rep. 600 (C.A.) 16.1, 16.9, 16.42
Nippon Yusen Kaisha v. Karageorgis [1975] 2 Lloyd's Rep. 137 (C.A.) 14.26
Nippon Yusen Kaisha v. Paeifica Navegacion SA (The Ion) [1980] 2 Lloyd's Rep.
245 11.4
Nishen Kisen Kaishan Ltd v. Canadian National Railway Co. [1982] 1 F.C. 530
24.14
Njegos, The [1936] P. 90; (1935) 53 L1. L. Rep. 286 26.55
Noirhomme (Thierry) v. Walklate (David) [1992] 1 Lloyd's Rep. 427; [1991]
I.L.Pr. 581 28.62, 28.63, 28.101
Noranda Inc. v. Barton (Time Charter) Ltd (The Marinor) [1996] 1 Lloyd's Rep.
301 11.18
Nordglimt, The [1987] 2 Lloyd’s Rep. 470; [ 1988] 2 All E.R. 531 6.10, 11.18,
12.17, 12.30, 14.74, 14.76, 15.44
Nordstjernen, The (1857) Swab. 260 23.122
"Nore Challenger" and "Nore Commander", The. See Lavington International Ltd v.
Bareboat Charterers of Nore Challenger and Nore Commander
Norfolk v. My Travel Group Plc [2004] 1 Lloyd's Rep. 106 11.22
Normaco Ltd v. Lundman [1999] I.L.Pr. 381; (1999) The Times, 6 January 14.65,
27.6, 28.21
North Range Shipping Ltd v. Seatrans Shipping Corpn [2002] 2 Lloyd's Rep. 1
(C.A.) 13.49
Northern Pioneer. The [2003] 1 W.L.R. 1015 13.47
Norton v. Florence Land and Public Works Co. (1877) L.R. 7 Ch. D. 332 26.38
Norwest Hoist Civil Engineering v. Polysius (1987) The Times, 23 July 16.30
Norwhale, The. See John Franetovich & Co. v. Ministry of Defence
Norwich Pharmacal Co. v. Customs and Excise Commissioners [1973] 2 All E.R.
943 (H.L.) 16.52
Nottingham Building Society v. Eurodynamics Systems Plc [1995] F.S.R. 468
14.21
Nova Scotia. The. See Caribbean Gold Ltd v. Alga Shipping Co. Ltd
Nugent v. Smith (1876) L.R. 1 C.P.D. 423 (C.A.); reversing (1875) L.R. 1 C.P.D.
19 20.30
Nuova Raffaelina, The (1871) L.R. 3 A. & E. 483 2.178
Nurnberger Allgemeine Versicherungs AG v. Portbndge Transport International BV
Case C-148/03, Judgement 28 October 2004 5.42
OHM Mariana EX Peony, The [1993] LMLN 361 10.38
OOCL Bravery, The [2000] 1 Lloyd's Rep. 394 24.22
OT Africa Line Ltd v. Hijazy (The Kribi) (No. I) [2002] IL.Pr. 18; [2001] 1
Lloyd's Rep. 76; [2002] I.L.Pr. 18 0.17
OT Africa Line Ltd v. Magic Sportswear Corpn [2005] EWCA Civ 710 25.13,
25.14
Oakwell, The. See Galaxy Energy International Ltd v. Assuranceforeningen Skuld
(Ej ensidie)
Oakworth, The [1975] 1 Lloyd's Rep. 586 23.44
Oberlandsgenicht Nurnberg (1974) Case No. 9 V 167/75 ECD 1 -16.5-B2 5.30
Ocarina Marine Ltd v. Marcard Stein & Co. [1994] 2 Lloyd's Rep. 524 5.45
Ocean Blessing, The [1994] LMLN 386 (H.C. (Sing.) 15.102
Ocean Chemical Transport Inc. v. Exnor Craggs Ltd [2000] 1 Lloyd's Rep. 446
(C.A.) 11.1
Ocean Enterprise, The. See Glatzer v. Bradston Ltd
Ocean Glory, The [2002] 1 Lloyd's Rep. 679 15.104, 23.9
Oceangas (Gibraltar) v. Port of London Authority (The Cavendish) [1993] 2
Oceanica Castelana Armadora SA v. Mineralimportexport (The Theotokos, The
Minoan Bull and The Turgi Furmoss) [1983] 2 Lloyd's Rep. 204 16.45, 16.55, 16.57,
16.58
Octavie, The (1836) B. & L. 215 12.154
Oinoussin Pride, The. See Pride Shipping Corpn v. Chung Hwa Pulp Corpn
Oldendorff (Egon) v. Libera Corpn (No. 1) [1995] 2 Lloyd's Rep. 64 26.19, 26.95
Oldekerk, The [1974] 1 Lloyd's Rep. 95 26.142
Oltenia, The. See Babanaft International Co. SA v. Avanti Petroleum Inc.
Omnium de Traitement et de Valorisation SA v. Hilmarton Ltd [1999] 2 All E.R.
(Comm.) 146; [1999] 2 Lloyd's Rep. 222 26.63, 27.66
Oppenheimerv. Cattermole (Inspector of Taxes) [1976] A.C. 249; [1975] 2 W.L.R.
347; [1975] 1 All E.R. 538 (H.L.) 12.81, 26.9
Opthalmic Innovations International (UK) Ltd v. Opthalmic Innovations
International Inc. [2004] EWHC 2948 9.75
Optima, The (1905) 74 L.T.P. 94 10.73
Ore Chief, The [1974] 2 Lloyd's Rep. 427 26.142
Orienta, The [1895] P. 49 (C.A.); affirming [1894] P. 271 2.93, 18.84
Oriental, The (1851) 7 Moo. P.C. 398 18.73
Orpheus, The (1871) L.R. 3 A. & E. 308 18.39
Orri v. Moundreas [1981] Com. L.R. 168 10.44, 25.67
Orwell Steel (Erection and Fabrication) Ltd v. Asphalt and Tarmac (UK) Ltd
[1984] 1 W.L.R. 1097; [1985] 3 All E.R. 747 14.84, 16.2, 25.67
O'Sullivan v. Williams [1992] 3 All E.R. 385 (C.A.) 23.49
Ousel. The [1957] 1 Lloyd's Rep. 151 20.57
Overseas Aviation Engineering (GB), Re [1963] Ch. 24; [1962] 3 W.L.R. 594;
[1962] 3 All E.R. 12 (CA.) 23.64
Overseas Union Insurance Ltd v. New Hampshire Insurance Co. (C351/89) [1992]
2 All E.R. 138; [1992] 1 Lloyd's Rep. 204 (ECJ) 4.42, 12.16
Oving Diepeveen Sturycken NV v. Berlinen Franchtschiffart [1983] ELD 361
6.188
Owenbawn, The [1973] 1 Lloyd's Rep. 56 11.25
Owens Bank Ltd v. Braeco (No. 2) [1994] 1 All E.R. 336 (ECJ); [1992] 2 All
E.R. 193 (H.L.) ...4.39, 5.29, 27.35, 27.53, 28.25
Owners of Cargo on Board the Morviken v. Owners of the Hollandia (The
Hollandia and the Morviken) [1983] 1 A.C. 565; [1983] 1 Lloyd's Rep. 1 (H.L.) 3.27,
6.42, 12.73, 13.29, 24.96, 26.14, 26.65, 26.101
Owners of Cargo Lately on Board the Fehmarn v. Owners of the Fehmarn (The
Fehmarn) [1957] 2 Lloyd's Rep. 551 (C.A.) 12.81
Owners of Cargo Laden on Board the Monica Smith v. Owners of the Monica
Smith [1968] P. 741; [1967] 2 Lloyd's Rep. 113 0.34, 10.32
Owners of Cargo Lately on Board the Nazym Khikmet v. Owners of the Nazym
Khikmet [1996] 2 Lloyd's Rep. 362 (C.A.) 10.42
Owners of Cargo Lately Laden on Board the Berny v. Owners of the Berny (The
Berny) [1979] Q.B. 80; [1977] 2 Lloyd's Rep. 533; [1978] 1 All E.R. 1068 10.32,
10.70
Owners of Cargo Lately Laden on Board the Deichland v. Owners and/or Demise
Charterers of the Deichland (The Deichland) [1989] 2 Lloyd's Rep. 113; [1989] 2 All
E.R. 1066 (C.A.) 4.34, 5.102, 6.14, 10.63, 17.57, 17.62, 18.61, 28.115
Owners of Cargo Lately Laden on Board the Eleftheria v. Owners of the Eleftheria
(The Eleftheria) [1970] P. 94; [1969] 1 Lloyd's Rep. 237 12.77, 12.78, 12.80
Owners of Cargo Lately Laden on Board the MV Erkowit v. Owners of the
Eschersheim (The Eschersheim. the Jade and the Erkowit) [1976] 2 Lloyd's Rep. 1
(H.L.); affirming [1976] 1 Lloyd's Rep. 81 (C.A.); affirming [1974] 2 Lloyd's Rep. 188
2.15, 2.66, 2.139, 2.142, 2.143, 2.146, 2.147, 2.148, 2.172, 2.173, 2.175, 2.176, 2.177,
2.179, 2.180, 2.192, 2.197-2.200, 2.209, 2.210, 10.25, 10.52
Owners of Cargo Lately Laden on Board the Playa Larga v. Owners of the I
Congreso del Partido [1981] 2 All E.R. 1064; [1981] 2 Lloyd's Rep. 367 (H.L.); [1978]
1 All E.R. 1169; [1977] 1 Lloyd's Rep. 536 10.32, 10.38, 10.43, 12.116, 12.132
Owners of Cargo Lately Laden on Board the Rewia v. Caribbean Liners
(Caribtainer) Ltd (The Rewia) [1991] 2 Lloyd's Rep. 325 (C.A.) 5.91, 5.102, 6.185,
6.188, 12.62
Owners of Cargo Lately Laden on Board the Siskina v. Distos Compania Naviera
SA (The Siskina) [1979] A.C. 210; [1978] 1 Lloyd's Rep. 1 (H.L.) 9.89, 9.92, 14.9,
14.19, 16.11A
Owners of Cargo Lately Laden on Board the River Gurara v. Nigerian National
Shipping Line Ltd (The River Gurara) [1998] 1 Lloyd's Rep. 225 (C.A.) 24.23
Owners of Cargo Lately Laden on Board the Tatry v. Owners of the Maciej Rataj
(The Maciej Rataj) (C406/92) [1995] 1 Lloyd's Rep. 302; [1994] ECR 1 -5439; [1995]
I.L.Pr. 81; [1997] 1 Lloyd's Rep. 380 (ECJ); [1992] 2 Lloyd's Rep. 552 (C.A.) 6.3,
6.16, 6.26, 6.187A, 10.83, 12.6, 12.18, 12.33, 12.34, 12.35, 12.36, 12.37, 12.39, 12.41,
12.42, 12.47, 12.49, 17.62, 28.15, 28.32, 28.75
Owners of Ship "Bow Spring" v. Owners of ship "Manzcnillo II" [2004] EWCA
Civ 1007 (C.A.) 0.17
Owners of SS Melanie v. Owners of SS San Onofre [1925] A.C. 246; (1924) 20
Ll. L. Rep. 288 (H.L.) 2.46
Owners of the Atlantic Star v. Owners of the Bona Spes (The Atlantic Star and The
Bona Spes) [1974] A.C. 436; [1973] 2 Lloyd's Rep. 197 (H.L.) 12.94, 12.95
Owners of the Bowditch v. Owners of the Po (The Po) [1991] 2 Lloyd's Rep. 206
(C.A.) 5.15, 6.10, 6.25, 6.187A, 10.64, 10.65, 12.14, 15.3 7, 15.45
Owners of the Cressington Court v. Owners of the Marinero (The Marinero)
[1955] P. 68; [1955] 1 Lloyd's Rep. 230 15.74
Owners of the Herceg Novi v. Owners of the Ming Galaxy [1998] 2 Lloyd's Rep.
454 (C.A.) 12.108, 24.7, 24.99, 24.109, 24.124, 26. 45
Owners of the Las Mercedes v. Owners of the Abidin Daver [1984] 1 All E.R.
470; [1984] 1 Lloyd's Rep. 339 (H.L.) 12.78, 12.95, 12.104
Owners of the Philippine Admiral v. Wallem Shipping (Hong Kong) Ltd (The
Philippine Admiral) [1977] A.C. 373; [1976] 1 Lloyd's Rep. 234 (P.C.) 12.115
Owners of The Spirit of Independence v. Wear Dockyard Ltd (The Spirit of
Independence) [1999] 1 Lloyd's Rep. 43 15.139
Owners of the Vasso v. Owners of Cargo Lately Laden on Board the Vasso [1984]
1 Lloyd's Rep. 235 (C.A.) 12.89, 12.157
Owners of the Zenatia v. Owners of the Putbus (The Putbus) [1969] P. 136; [1969]
1 Lloyd's Rep. 253 (C.A.) 15.12 1
Owusu v. Jackson [2002] EWCA Civ 877 (C.A.) 4.37
Owusu v. Jackson (C–281/02) [2005] 2 W.L.R. 942; [2005] 1 Lloyd’s Rep. 452
(ECJ) 4.37, 4.38, 5.56, 12.15, 12.21, 12.24
PCW (Underwriting Agencies) Ltd v. Dixon (PS) [1983] 2 All E.R. 697 (Note)
(C.A.); affirming [1983] 2 All E.R. 158; [1983] 2 Lloyd’s Rep. 197 14.24, 16.5
P & O Nedlloyd v. Arab Metals [2005] EWHC 1276 11.28
P & O Scottish Ferries Ltd v. Braer Corporation and others [1999] 2 Lloyd’s Rep.
535 2.151
PT Pan Indonesian Bank Ltd TBK v. Marconi Communictions International Ltd
[2005] EWCA Civ 422 (C.A.) 26.117
Pacific, The (1864) B. & L. 243 18.13
Pacific Bear, The [1979] Hong Kong L.R. 125 10.73, 15.59
Pacol Ltd v. Trade Lines Ltd (The Henrik Sif) [1982] 1 Lloyd's Rep. 456 11.4,
11.20
Palaquin, The [1996] LMLN 439 (Fed. Ct, Canada) 10.18, 15.52
Palmisani v. Istituto Nazionale della Previdenza Socia le (INPS) (C261/95) [1997]
ECR I-4025; [1997] 3 CMLR 1356 (ECJ) 3.12
Pan Ocean Shipping Co. v. Creditcorp (The Trident Beauty) [1994] 1 Lloyd's Rep.
365 (H.L.) 26.146
Panama, The (1870) L.R. 3 P.C. 1999 18.73
Panda, The (1842) 1 W. Rob. 423 2.135
Panglobal Friendship. The [1978] 1 Lloyd's Rep. 368 17.20, 22.30
Papamichael v. National Westminster Bank Plc [2002] 1 Lloyd's Rep. 332 16.14
Papanicolaou v. Thielen [1997] I.L.Pr. 37 (H.C. (Irl.)) 5.22
Paragon Finance Plc v. DB Thakerar & Co. [1999] 1 All E.R. 400 (C.A.) 9.41.
11.32
Paragon Group Ltd v. Burnell [1991] 2 All E.R. 388 (C.A.) 9.22
Parallel Proceedings Relating to an International Contract of Carriage of Goods By
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Paramount Airways Ltd (No. 2), Re [1993] Ch. 223; [1992] 3 W.L.R. 690; [1992]
3 All E.R. 1 (H.L.) 26.13
Pardo v. Bingham (1868) L.R. 6 Eq. 485 26.36
Paris, The [1896] P. 77 23.111
Parker v. CS Structures Credit Fund Ltd [2003] 1 W.L.R. 1680 14.27, 16.51
Parlement Beige, The (1880) 5 P.D. 197 18.64
Parouth, The. See Compania Naviera Micro SA v. Shipley International Inc.
Partenreederei M/S Heidberg v. Grosvenor Grain & Feed Co. Ltd (The Heidberg)
(No. 2) [1994] 2 Lloyd's Rep. 287 4.30, 13.17, 13.29, 26.19, 2 6.59, 26.62, 26.75,
28.12
Partenreederei MS Tilly Russ v. Haven & Vervoerbednjf Nova (C71/83) [1984]
ECR 2417; [1984] 3 CMLR 499 (ECJ) 5.45, 5.59, 5.60, 5.62, 6.193
Paschalis v. The Ship Tona Maria [1975] 1 Cyp. L.R. 162 2.96
Pascoe v. Turner [1979] 1 W.L.R. 431; [1979] 2 All E.R. 945 21.13
Patel (Jitendra) v. Patel (Dilesh) [1999] 3 W.L.R. 322; [1999] 1 All E.R. (Comm.)
923; [1999] B.L.R. 227 (C.A.) 13.41
Paula D'Alesio, The See Chimimport Plc v. G D'Alesio SAS
Pauling's Settlement Trusts, Re [1963] 3 All E.R. 1 (CA.) 11.37
Payabi v. Armstel Shipping Corpn (The Jay Bola) [1992] 2 Lloyd's Rep. 62 9.41,
11.18, 11.19, 11.33
Pearce Ex p. Official Receiver, Re [1919] 1 K B. 354 (C.A.) 25.67
Pearce v. Ove Arup Partnership Ltd (Jurisdiction) [1999] 1 All E.R. 769 (C.A.)
3.4, 6.9, 12.152, 26.132
Pearson Education Ltd v. Prentice Hall of India Ltd [2005] EWHC 655 9.75
Peer International Corpn v. Termidor Music Publishers Ltd [2004] 2 W.L.R. 849
(C.A.) 26.9
Peer International Corpn v. Termidor Music Publishers Ltd (No. 3 ) [2005] EWHC
1048 12.103, 26.9
Pemberton v. Hughes [1899] 1 Ch. 781 (C.A.) 27.34
Pendy Plastic Products BV v. Pluspunkt Handelsgesellschaft mbH (C228/81)
[1982] ECR 2723; [1983] 1 CMLR 665 (ECJ) 28.61
Penelope II, The [1980] 2 Lloyd's Rep. 17 (C.A.) 24.74, 24.75
Peoples Insurance Co. v. Vysanthi Shipping Co. Ltd [2003] EWHC 1655 13.47
Perfetto v. Parlapiano [1993] I.L.Pr. 190 (Cour d'App (Liege)) 5.49
Permina 108, The [1978] 1 Lloyd's Rep. 311 (C.A. (Sing.)) 10.52, 15.14
Permina 3001, The [1979] 1 Lloyd's Rep. 327 (C.A. (Sing.)) 6.180, 10.43, 10.47,
25.42
Permina Samudra XIV, The [1978] 1 Lloyd's Rep. 315 15.55, 23.30
Pestrioka, The [2003] 2 Lloyd's Rep. 327 (C.A.) 11.11
Petereit v. Babcock International Holdings Ltd [1990] 1 W.L.R. 350; [1990] 2 All
E.R. 135; [1992] I.L.Pr. 331 28.100
Peters (Martin) Bauunternehmung GmbH v. ZNAV (Zuid Nederlandse Aannemers
Vereniging) (C34/82) [1983] ECR 987; [1984] 2 CMLR 605 (ECJ) 6.124, 6.133
Petone, The [1917] P. 198 2.95, 18.78, 18.82, 18.88
Petr Shmidt, The. See Swiss Bank Corpn v. Novorissiysk Shipping Co.
Petro Ranger, The. See Petroships Pte Ltd of Singapore v. Petec Trading &
Investment Corpn of Vietnam
Petrofina SA v. AOT (The Maersk Nimrod) [1992] Q.B. 571; [1991] 1 Lloyd's
Rep. 269 2.185, 2.188
Petromin SA v. Secnav Marine Ltd [1995] 1 Lloyd's Rep. 603 15.96
Petroships Pte Ltd of Singapore v. Petec Trading & Investment Corpn of Vietnam
(The Petro Ranger) [2001] 2 Lloyd's Rep. 348 13.47
Petrotrade Inc. v. Smith (Jurisdiction) [1998] 2 All E.R. 346 5.82, 6.184
Philippine Admiral, The. See Owners of the Philippine Admiral v. Wallem
Shipping (Hong Kong) Ltd
Phillip Alexander Securities & Futures Ltd v. Bamberger [1997] I.L.Pr. 73 (C.A.)
28.57
Photo Production Ltd v. Securicor Transport Ltd [1980] A.C. 827; [1980] 1
Lloyd’s Rep. 545 (H.L.) 25.44
Phrantzes v. Argenti [1960] 2 Q.B. 19; [1960] 2 W.L.R. 521; [1960] 1 All E.R.
778 25.8, 26.44
Pickaninny, The [1960] 1 Lloyd’s Rep. 533 23.9
Pierce v. Bemis (The Lusitania) [1986] Q.B. 384; [1986] 1 A11 E.R. 1011; [1986]
1 Lloyd's Rep. 132 2.135, 2.137, 18.43
Pioneer Container, The [1994] 1 Lloyd's Rep. 593 (P.C.) 11.9, 12.62, 12.76, 12.83
Pioneer Shipping Ltd v. BTP Tioxide Ltd (The Nema) (No. 2) [1981] 2 Lloyd's
Rep. 239 (H.L.) 13.49
Pionier, The. See Continental Fertilizer Co. Ltd v. Pionier Shipping CV
Pirelli Cables Ltd v. United Thai Shipping Corpn Ltd [2000] 1 Lloyd's Rep. 663
12.79
Pitsa T, The. See Unicorn Shipping Ltd v. Demet Navy Shipping Co. Ltd
Po, The. See Owners of the Bowditch v. Owners of the Po
Polessk, The and Akademik Iosif Orbeli, The [1996] 2 Lloyd's Rep. 40 12.102
Polly Peck International Plc v. (Asil) Nadir (No. 2) [1992] 2 Lloyd's Rep. 238
(C.A.) 16.38
Polly Peck International Plc v. Citibank NA [1994] I.L.Pr. 71 8.9
Polo II, The [1977] 2 Lloyd's Rep. 115 2.24, 15.140, 18.109
Polpen Shipping Co. Ltd v. Commercial Union Assurance Go. Ltd [1943] K.B.
161; (1942) 74 Ll. L. Rep. 157 18.30, 18.32
Polypetrol Sari v. Societe Generate Routiere [1993] I.L.Pr. 107 (Cass. (F.)) 28.54,
28.71
Port Caledonia, The; Anna, The [1903] P. 184 26.150
Port Line v. Ben Line Steamers Ltd [1958] 2 Q.B. 146; [1958] 1 Lloyd's Rep. 290
21.1, 23.44, 26.180
Port Victoria, The [1902] P. 25 2.66
Porta-Leasing GmbH v. Prestige International SA (C784/79) [1980] ECR 1517;
[1981] 1 CMLR 135 (ECJ) 5.45, 5.70
Porzelack KG v. Porzelack (UK) Ltd [1987] 1 All E.R. 1074 14.37
Potoi Chau, The. See Castle Insurance Co. v. Hong Kong Islands Shipping Co.
Potts Ex p. Taylor. Re [1893] 1 Q.B. 648 (C.A.) 25.67
Powell v. Owners of the Proceeds of Sale of the Halcyon Skies (The Halcyon
Skies) (No. 1) [1977] Q.B. 14; [1976] 1 All E.R. 856; [1976] 1 Lloyd's Rep. 461 2.42,
2.47, 2.79, 2.81, 18.71, 19.33, 23.126
Powell Duffryn plc v. Petereit (C214/89) [1992] ECR I –1745 (ECJ) 4.27, 5.36,
5.47
Powstaniec Wielkopolski, The [1989] 1 Lloyd’s Rep . 58 2.61
Practice Direction (ECJ: References to the ECJ by C.A. and H.C. under Art. 177)
[1999] 2 CMLR 799 (ECJ) 4.11
Practice Direction (QBD: Judgment: Foreign currency) [1976] 1 W.L.R. 83;
[1976] 1 All E.R. 669; [1976] 1 Lloyd's Rep. 282 25.36
Prekookeanska Plovidba v. LNT Lines SrL [1988] 3 All E.R. 897 16.17
Preservatrice fonciére TIARD SA v. The Netherlands (C—266/01) 4.25
President of India v. La Pintada Compania Navigacion SA (The La Pintada) (No.
1) [1984] 2 Lloyd's Rep. 9 (H.L.) 0.34, 25.38
Preveze, The [1973] 1 Lloyd's Rep. 202 11.24
Pride Shipping Corpn v. Chung Hwa Pulp Corpn (The Oinoussin Pride) [1991] 1
Lloyd's Rep. 126 ... 9.100
Prince Abdul Rahman bin Turki Al-Sudairy v. Abu-Taha [1980] 2 Lloyd's Rep. 565
(C.A.) 16.15
Prince George, The (1837) 3 Hag. Adm. 376 2.78, 2.86
Princess Alice, The (1849} 3 W. Rob. 138 2.216
Prinsengracht, The [1993] 1 Lloyd's Rep. 41 5.34, 15.134
Priscilla, The (1859) Lush. 1 23.145
Promac Sprl v. Sogeservice SA [1993] I.L.Pr. 309 (Cour. d'A (Paris)) 6.146, 12.36
Puerto Acevedo, The. See Marubeni Corpn v. Pearlstone Shipping Corpn
Pugliese v. Finmeccanica SpA Case (C437/00) Judgment 10 April 2003 6.153
Pugsley & Co. v. Ropkins & Co. Ltd [1892] 2 Q.B. 184 (C.A.) 2.192
Putbus, The. See Owners of the Zenatia v. Owners of the Putbus
QRS 1 ApS v. Frandsen [1999] 1 W.L.R. 2169; [1999] 3 All E.R. 289 (C.A.);
affirming [1999] I.L.Pr. 432 4.25, 4.41, 26.9
Qingdao Ocean Shipping Co. v. Grace Shipping Establishment Transatlantic
Schiffahrtskontor GmbH (The Xing Su Hai) [1995] 2 Lloyd's Rep. 15 5.91, 6.185,
6.188, 16.4
Q's Estate, Re [1999] 1 Lloyd's Rep. 931 13.24, 13.38
Queen of the South, The. See Corps (t/a Corps Bros) v. Owners of the Paddle
Steamer Queen of the South
R. v. Carrick DC, ex p. Prankerd (The Winnie Rigg) [1998] 2 Lloyd's Rep. 675
2.223
R. v. City of London Court Judge and Owners of the S.S. Michigan (1890) 25
Q.B.D. 339 2.86, 2.87
R. v. Judge of the City of London Court (1883) 12 Q.B.D. 115 2.176
R. v. Judge of the City of London Court [1892] 1 Q.B. 273 (C.A.) 18.9
R. v. Forty Nine Casks of Brandy (1836) Hag. Adm. 257 2.135
R. v. Property Derelict (1825) 1 Hag. Adm. 383 2.135
R. v. Secretary of State for Transport, ex p. Factortame Ltd (No. 3) (C221/89)
[1991] 3 All E.R. 769; [1991] 2 Lloyd's Rep. 648 (ECJ) 3.12
R. v. Secretary of State for Transport, ex p. Factortame Ltd (No. 5) [1999] 4 All
E.R. 906 (H.L.) 3.12
R. v. Secretary of State for Transport, ex p. Factortame Ltd (C48/93) [1996] All
E.R. (EC) 301 (ECJ) 3.12
R. v. International Stock Exchange of the United Kingdom and the Republic of
Ireland Ltd, ex p. Else (1982) Ltd [1993] Q.B. 534; [1993] 2 W.L.R. 70 (C.A.) 4.11
R. A. Lister & Co. v. EG Thomson (Shipping) Ltd and PT Djakarta Lloyd (The
Benarty) (No. 2) [1985] Q.B. 325; [1984] 2Lloyd's Rep. 244 (C.A.): reversing [1983] 2
Lloyd's Rep. 50 6.42, 12.74, 12.79, 24.21, 26.14
RPS Prodotti Siderurgici Sri v. Owners of the Sea Maas (The Sea Maas) [1999] 2
Lloyd's Rep. 281 6.145, 6.146
Radhakrishna Hospitality Service Private Ltd v. EIH Ltd [1999] 2 Lloyd's Rep.
249 12.103
Radiant, The [1958] 2 Lloyd's Rep. 596 24.28
Raeburn v. Andrews (1874) L.R. 9 Q.B. 118 14.40
Raiffeisen Zentralbank Osterreich AG v. Five Star General Trading LLC (The
Mount I) [2001] 1 All E.R. (Comm) 961; [2001] 1 Lloyd's Rep. 597 (C.A.) 26.4, 26.8,
26.22, 26.38, 26.39, 26.55, 26.163, 26.164
Raiffeisen Zentral Bank Osterreich AG v. Tranos [2001] I.L.Pr. 85 6.163
Rainbow, The (1885) 5 Asp. M.L.C. 479 18.114
Ralli Bros v. Compania Naviera Sota y Aznar [1920] 2 K.B. 287; (1920) 2 L1. L.
Rep. 550 (C.A.) 26.63
Rama, The. See Berliner Bank AG v. C Czarnikow Sugar Ltd
Rank Enterprises Ltd v. Gerard [2000] 1 Lloyd's Rep. 403 (C.A.) 15.109
Rank Film Distributors Ltd v. Lanterna Editrice SRL [1992] I.L.Pr. 57 6.139, 12.17
Rashtriya Chemicals and Fertilizers Ltd v. Huddart Parker Industries Ltd (The
Boral Gas) [1988] 1 Lloyd's Rep. 342 22.5
Rasu Maritima SA v. Perusahaan Pertambangan Minyak Dan Gas Bunn Negara
(Pertamina) and Govt of Indonesia (Intervener) [1978] Q.B. 644; [1977] 2 Lloyd's Rep.
397 (C.A.) 14.27, 16.4, 16.18, 16.38
Rayner v. Davies [2003] 1 All E.R. (Comm) 39 4 6.117 Rebecca, The (1804) 5 C.
Rob. 102 18.76 Rebecca Elaine, The. See Hamble Fisheries Ltd v. L Gardner & Sons
Ltd
Red Sea Insurance Co. Ltd v. Bouygues SA [1995] 1 A.C. 190; [1994] 3 W.L.R.
926; [1994] 3 All E.R. 749 (P.C.) 26.130, 26.131
Reed Executive Plc v. Reed Business Information Ltd [2004] EWCA Civ 887
(C.A.) 0.14
Reefer Creole, The. See Abdullah Ali Almunajem Sons Co. v. Recourse Shipping
Co. Ltd
Refco Inc. v. Eastern Trading Co. [1999] 1 Lloyd’s Rep. 159 (C.A.) 16.26, 16.42
Regie Nationale desUsines Renault SA v. Maxicar SpA (C38/98) [2000] ECRI -
2973; [2000] ECDR 415 (ECJ) 28.54
Reich v. Purcell 432 P.2d 727 (1967) 26.126
Reichert v. Dresdner Bank (No. 1) (C115/88) [1990] I.L.Pr. 105 (ECJ) 5.18, 5.20
Reichert v. Dresdner Bank (No. 2) (C261/90) [1992] ECR I–2149; [1992] I.L.Pr.
404 (ECJ) 5.30, 6.159, 14.61
Reichhold Norway ASA v. Goldman Sachs International [1999] 2 All E.R.
(Comm.) 174; [1999] 2 Lloyd's Rep. 567 (C.A.) 9.4, 9.96, 12.54, 12.76
Republic of India v. India Steamship Co. Ltd (The Indian Endurance and The
Indian Grace) (No. 1) [1993] A.C. 410; [1993] 2 W.L.R. 461; [1993] 1 All E.R. 998;
[1993] 1 Lloyd's Rep. 387 (H.L.) 10.15, 10.16, 12.112, 12.157, 15.64, 25.1, 25.2, 25.5,
27.4
Reliance Industries Ltd v. Enron Oil and Gas India Ltd [2002] 1 Lloyd's Rep. 645
13.47
Rena K, The [1979] Q.B. 377; [1979] 1 All E.R. 397; [1978] 1 Lloyd's Rep. 545
10.84, 12.90, 12.92, 14.27, 15.86, 15.120, 16.18, 18.99, 25.2, 25.4, 25.5
Rene. The (Registrar's Report: Priorities) (1922) 12 Ll. L. Rep. 202 23.159
Reunion Europeenne SA v. Spliethoffs Bevrachtingskantoor BV (C5 1/97) [1998]
ECR I-6511; [1999] I.L.Pr. 205 (ECJ) 6.1, 6.134, 6.159, 6.166, 6.188, 6.189
Rewia, The. See Owners of Cargo Lately Laden on Board the Rewia v. Caribbean
Liners (Caribtainer) Ltd
Rhodian River Shipping Co. SA v. Halla Maritime Corpn (The Rhodian River and
The Rhodian Sailor) [1984] 1 Lloyd's Rep. 373 25.42
Richard SA v. Pavan [1998] I.L.Pr. 193 (Cour de Cass. (F.T) 5.49
Richardson v. Schwarzenegger [2004] EWHC 2422 12.102
Ring, The [1931] P. 58; (1931) 39 L1. L. Rep. 251 15.133
Ringdove, The (1858) Swab. 310 18.39
Rinifcer v. University College London [1999] T.L.R. 2999 9.21
Rinkau, Re (157/80) [1981] ECR 1391; [1983] 1 CMLR 205 (ECJ) 6.182
Rio Assu (No.2), The [1999] 1 Lloyd's Rep. 115 (C.A.) 15.139
Ripon City, The [1897] P. 226 2.90, 2.93, 2.94, 2.99, 18.58, 18.62, 18.64, 18.65,
18.69, 18.71, 18.84, 18.85
River Gurara, The. See Owners of Cargo Lately Laden on Board the River Gurara
v. Nigerian National Shipping Line Ltd
River Rima, The [1988] 2 Lloyd's Rep. 193 (H.L.) 0.34, 1.4, 2.195, 2.220
Robert Pow, The (1863) B. & L. 99 2.144
Roberta, The (1937) 58 L1. L. Rep. 159 26.46
Roberta, The (Bail) [1938] P. 1; (1937) 58 L1. L. Rep. 374 1 5.133
Roche Products Ltd v. Provimi [2003] EWHC 961 5.88
Roebuck v. Mungovin [1994] 1 All E.R. 568; [1994] 1 Lloyd's Rep. 481 (H.L.)
11.44
Roecliff, The (1869) L.R. 2 A. & E. 363 18.39
Roerig v. Valiant Trawlers Ltd [2002] 1 Lloyd's Rep. 681 (C.A.) 26.44
Rohr SA v. Ossberger (C27/81) [1981] ECR 2431; [1982] 3 CMLR 29 (ECJ) 5.33
Rohstoff Einfuhr v. La Continentale Nucleaire (1977) ECD 1 -22—B 1 (Cour Sus.
de Justice (Lux.)) 12.47
Romalpa's case. See Aluminium Industrie Vaassen BV v. Romalpa Aluminium
Rome v. Punjab National Bank (No. 1) [1989] 2 Lloyd's Rep. 424; The Times, 14
July, 1988 3.4
Rome v. Punjab National Bank (No. 2) [1990] 1 All E.R. 58; [1989] 2 Lloyd's
Rep. 354 (C.A.) 9.51
Roaario, The (1866) 2 P.D. 41 18.86
Robert Whitmore, The [2004] 2 Lloyd's Rep. 47 (Sup. Ct (NSW)) 24.61
Rosco BV v. Fraisgel Sarl [1986] ECC 175 (Trib. Gde Inst. (Paris)) 28.68
Rose (Deceased), Re [1952] Ch. 499; [1952] 1 All E.R. 1217 (C.A.) 23.20
Rosler v. Rottwinkel (C241/83) [1985] ECR 99 (ECJ) 5.20
Rosseel NV v. Oriental Commercial & Shipping Co. (UK) Ltd [1990] 3 All E.R.
545 (C.A.) 16.24, 16.26
Rosseel NV v. Oriental Commercial & Shipping Co. (UK) Ltd [1991] 2 Lloyd's
Rep. 625 9.98, 27.65
Rosso, The. See Monterosso Shipping Co. v. International Transport Workers'
Federation
Rothnie, The. See ED & F Man Ship Ltd v. Kvaerner Gibraltar Ltd
Rowan Companies Inc. v. Lambert Eggink Offshore Transport Consultants vof (The
Gilbert Rowe) (No. 1) [1997] 2 Lloyd's Rep. 218 26.22
Royal and Sun Alliance v. Hi Tec Electronics A/S and Ors [2005] EWHC 1408
(Comm) 6.53, 12.6, 12.24
Royal Arch, The (1857) Swab. 269 2.97, 2.98, 18.114
Royal Bank of Canada v. Cooperatieve Centrale Raffejsen Boerenleenbank BA
[2004] 1 Lloyd's Rep. 471 25.18, 25.19
Royal Bank of Scotland Plc v. Cassa di Risparmio delle Provincie Lombarde SA
[1991] I.L.Pr. 411 6.146
Royal Wells, The [1984] 2 Lloyd's Rep. 255 2.88, 23.141
Ruapehu, The (No. 2) [1927] A.C. 523; (1927) 27 L1. L. Rep. 385 (H.L.) 24.171
Rubi Sea, The [1992] 1 Lloyd's Rep. 634 15.103, 23.9
Russland, The [1924] P. 55; (1923-24) 17 L1. L. Rep. 306 15.133, 23.121, 23.137
Ruta, The [2000] 1 Lloyd's Rep. 359 15.67, 15.73, 18.93, 18.105, 18.106, 18.109,
23.9, 23.133-23.166, 23.139, 23.181
Rutten v. Cross Medical Ltd (C383/95) [1997] All E.R. (EC) 121; [1 997] ECR I-
57; [1997] I.L.Pr. 199 (ECJ) 6.153
Ryan v. Friction Dynamics Ltd [2001] C.P. Rep. 75; (2000) The Times, 14 June
16.25
S & T Bautrading v. Nordling [1997] 3 All E.R. 718 16.26
SA Consortium General Textiles v. Sun & Sand Agencies [1978] Q.B. 279; [1978]
2 W.L.R. 1; [1978] 2 All E.R. 339; [1978] 1 Lloyd's Rep. 134 (C.A.) 27.54
SA Continental Pharma v. SA Labaz (1978) ECD 1-3 8—B3 (Brussels) 28.102
SA CNV (Belgian Firm) v. S GmbH (2 TJ 1072/89) [1991] I.L.Pr. 588 (OLG
(Koblenz)) 12.16
SCAS (Transport) (USA) Inc. v. Adriatica SpA di Navigazione 1982 ECD 457
6.151
SCF Finance Co. Ltd v. Masri (No. 1) [1985] 2 All E.R. 747; [1985] 2 Lloyd's
Rep. 206 (C.A.) 16.2
SCF Finance Co. Ltd v. Masri (No. 3) [1987] 1 All E.R. 194 (C.A.) 25.1
SC Johnson & Son Inc. v. Mobilar Export Import GmbH [1986] ECC 360 (RB
(Rotterdam)) 28.18
Saint Anna, The (No. 2) [1983] 1 Lloyd's Rep. 637 2.201, 2.202, 15.65, 25.5
St Elefterio, The. See Schwarz & Co. (Grain) Ltd v. Owners of the St Elefterio ex
Arion
St George, The (Action of Bottomry) [1926] P. 217 2.97, 2.98
St Lawrence, The (1880) L.R. 5 P.D. 250 2.114, 18.88
St Merriel, The. See Smith's Dock Co Ltd v. Owners of the St Merriel
St Olaf, The (1869) L.R. 2 A. & E. 360 18.33
St Olaf, The (1877) 2 P.D. 113 2.123
Saab v. Saudi American Bank [1999] 1 W.L.R. 1861; [1999] 4 All E.R. 32 (C.A.)
9.17, 9.50
Sabah Shipyard (Pakistan) Ltd v. Islamic Republic of Pakistan [2003] 2 Lloyd's
Rep. 571 (C.A.) 25.19
Sabine, The [1974] 1 Lloyd's Rep. 465 26.142
Sadler v. Robins (1808) 1 Camp. 253 27.34
Saetta, The. See Forsythe International (UK) Ltd v. Silver Shipping Co Ltd and
Petroglobe International Ltd
Saipem SpA v. Dredging V02 BV (The Volvox Hollandia) (No. 1) [1988] 2
Lloyd's Rep. 361; [1989] E.C.C. 16 (C.A.) 12.106, 24.91, 24.104, 24.108
Salacia, The (1862) Lush. 545 18.39, 23.141, 23.144
Salvesen (otherwise von Lorang) v. Administrator of Austrian Property [1927]
A.C. 641 (H.L.) 27.27
Samarkand, The (1996) LMLN (C.A. N.Z.) 2.191
Samick Lines Co. v. Owners of the Antonis P. Lemos [1985] A.C. 711; [1985] 2
W.L.R. 468; [1985] 1 All E.R. 695; [1985] 1 Lloyd's Rep. 283 (H.L.); affirming [1984]
2 W.L.R. 825; [1984] 2 All E.R. 353; [1984] 1 Lloyd's Rep. 464 (C.A.) 2.14, 2.178,
2.182, 2.183, 2.187, 2.204, 2.214, 19.21, 27.33
San Carlo Gruppo Alimentare SpA v. SNC Vico [1996] I.L.Pr. 493 (Cass. (F.))
6.149
Sanders v. Van der Putte (C73/77) [1977] ECR 2383; [1978] 1 CMLR 331 5.20
Sanders Lead Co. Inc. v. Entones Metal Brokers [1984] 1 Lloyd's Rep. 276 (C.A.)
16.4, 16.58
Sandrina, The. See Gatoil International Inc. v. Arkwright-Boston Manufacturers
Mutual Insurance Co.
Sanicentral GmbH v. Collin (C25/79) [1979] ECR 3423; [1980] 2 CMLR 164
(ECJ) 4.25, 5.41
Santa Fe (UK) Ltd v. Gates Europe [1991] LMLN 295 6.160, 7.8
Santa Maria, The (1917) 36 D.L.R. 619 2.112
Santiren Shipping Ltd v. Unimarine SA (The Chrysovalandou -Dyo) [1981] 1
Sara, The (1889) 14 App. Cas. 209 2.42, 2.68, 2.72, 19.3
Sarah Bell, The (1864) 4 Not. Cas. 144 18.43
Sargasso, The. See Neste Chemicals SA v. DK Line SA
Sarl Ivresse v. Societe Tesserlana [1999] I.L.Pr. 332 (Cour d'A. (Paris)) 28.9
Sarpen, The [1916] P. 306 (C.A.) 12.145
Sarq Jubail, The [1985] LMLN 140 15.117
Sarrio SA v. Kuwait Investment Authority 1998] 1 Llo yd's Rep. 129; reversing
[1997] 1 Lloyd's Rep. 113 (C.A.); reversing [1996] 1 Lloyd's Rep. 650 12.14, 12.20,
12.48
Saudi Prince, The (No. 1) [1982] 2 Lloyd's Rep. 255 10.45, 10.46
Saudi Star, The (1982, unreported) 15.132, 15.133, 15.136
Savina, The [1975] 2 Lloyd's Rep. 141 (C.A.) 26.142
Sayers v. International Drilling Co. NV [1971] 2 Lloyd's Rep. 105; [1971] 3 All
E.R. 163 (CA.) 26.14, 26.52. 26.64, 26.138
Scandinavian Trading Tanker Co. AB v. Flota Petrolera Ecuatonana (The
Scaptrade) [1983] 2 All E.R. 763; [1983] 2 Lloyd's Rep. 253 (H.L.) 25.42
Scaptrade, The. See Scandinavian Trading Tanker Co. AB v. Flota Petrolera
Ecuatoriana
Schiffahrtsgesellschaft Detlev Von Appen GmbH v. Voest Alpine Intertrading
GmbH [1997] 2 Lloyd s Rep. 279 (C.A.) 12.62, 13.17
Schiller (Cargo ex), The (1877) L.R. 2 P.D. 145 (C.A.) 2.47, 2.53
Schimmel Pianofortefabrik GmbH v. Bion [1992] I.L.Pr. 199 (Cour de Cass. (F.))
6.162
Schwarz & Co. (Grain) Ltd v. Owners of the St Elefterio ex Arion (The St
Elefterio) [1957] P. 179; [1957] 1 Lloyd's Rep. 283 2.171, 10.27, 19.38
Scio, The (1867) L.R. 1 A. & E. 353 20.7, 23.112
Sea Assets Ltd v. P.T. Garuda Indonesia (No. 1) [2000] 4 All E.R. 371 9.50
Sea Cap XII, The [1995] LMLN 415 (F.C.) 24.14
Sea Maas, The. See RPS Prodotti Siderargici Srl v. Owners of the Sea Maas
Sea Spray, The [1907] P. 133 23.9
Seabridge Shipping AB v. AC Orsleff's EFTS A/S [1999] 2 Lloyd's Rep. 685
13.54
Seaconsar (Far East) Ltd v. Bank Markazi Jomhoun Islami Iran (Service Outside
Jurisdiction) [1993] 4 All E.R. 456; [1994] 1 Lloyd's Rep. 1 (H.L.) 5.82, 9.74, 9.75
Searose v. Seatrain UK [1981] 1 Lloyd's Rep. 556 16.34
Seaspeed America, The. See Asianac International Panama SA and Transocean
Transport Corpn v. Transocean Ro-Ro-Corp
Seaspeed Dora, The. See Slazengers Ltd v. Seaspeed Ferries International Ltd
Securities and Investments Board v. Lloyd-Wright [1993] 4 All E.R 210 16.30
Securum Finance Ltd v. Ashton [2001] Ch. 291; [2000] 3 W.L.R. 1400 (C.A.)
11.45
Sedex (Societe Europeenne d'Ex pansion) v. Societe Vetex [1990] I.L.Pr. 254
(Cass. (F.)) 6.144
Seki Rolette. The. See Grimaldi Compagnia di Navigazione SpA v. Sekihyo Lines
Ltd
Selby Paradigm, The [2004] 2 Lloyd's Rep. 714 10.77A, 27.49
Selina, The (1842) 2 Not. Cas. 18 23.144
Sennar, The. See DSV Silo und Verwaltungsgesellschaft mbH v. Owners of the
Sennar
Servia. The and the Carinthia [1898] P. 36 2.114
Sewell v. Burdick (The Zoe) (1884) L.R. 10 App. Cas. 74 (H.L.) 23.92, 23.106
Shalson v. Onofrio Russo [2003] EWHC 1637 21.15
Shamil Bank of Bahrain v. Beximco Pharmaceuticals Ltd [2004] EWCA Civ 19
26.54
Shapland v Palmer [1999] 1 W.L.R. 2068; [1999] 3 All E.R. 50 (C.A.) 11.29 11.30
Shearson Lehman Hutton Inc. v. TVB (Treuhandgesellschaft fur Vermogens -
Verwaltung und Beteiligungen mbH) (C89/91) [1993] Ecr I-139; [1993] I.L.Pr. 199
(ECJ) 6.1, 6.115, 6.117
Sheldon v. RHM Outhwaite (Underwriting Agencies) Ltd [1995] 2 All E.R. 558;
[1995] 2 Lloyd's Rep. 197 (H.L.) 11.29
Shell International Petroleum Co. Ltd v. Coral Oil Co. Ltd (No. 2) [1999] 2 Lloyd's
Rep. 606 25.18
Shell Oil Co. v. The Ship Lastrigoni [197475] 1313 C.L.R. 1 (H.C. (Aus.)) 19.28
Shenavai v. Kreischer (C266/85) [1987] ECR 239; [1987] 3 CMLR 782 (ECJ)
6.144, 6.145, 6.152
Shevill v. Presse Alliance SA (C68/93) [1995] All E.R. (EC) 289 (ECJ) 5.90,
5.91, 6.164, 6.167
Shiblaq v. Sadikoglu (No. 2) [2004] 2 All E.R. (Comm) 596 9.46, 9.102
Shikari v. Malik [1999] T.L.R. 392 (C.A.) 9.3
Ship Galaxias, The [1989] LMLN 240 (Fed. Ct (Can.)) 25.58
Shizelle, The [1992] 2 Lloyd's Rep. 444 23.35 -23.39, 23.75-23.77, 23.129,
23.148, 23.162, 23.163
Showlag v. Mansour [1995] 1 A.C. 431; [1994] 2 W.L.R. 615; [1994] 2 All E.R.
129 (P.C.) 27.7
Siamar v. Spedimex [1990] I.L.Pr. 266 (It. Cass. (I.)) 6.14
Siben (No. 1), The. See Hughes v. Clewley
Siboti K/S v. BP France SA [2003] 2 Lloyd's Rep. 364 12.19, 12.58
Sierra Leone v. Marmaro Shipping Co. (The Amazona and The Yayamaria) [1989]
2 Lloyd's Rep. 130 (C.A.) 11.18
Sierra Leone Telecommunications Co. Ltd v. Barclays Bank Plc [1998] 2 All E.R.
820 ...................... 26.110
Sierra Nevada, The (1932) 42 Ll. L. Rep. 309 23.170
Silia, The [1981] 2 Lloyd's Rep. 534; [1981] LMLN 36 2.82, 2.225, 15.53, 18.33,
18.36, 19.34, 23.176, 23.177, 25.55
Sim Swee Joo v. Shirlstar [1994] LMLN 374 13.1, 18.24
Simlah, The (1851) 18 L.T. (O.S.) 35 18.114
Simon v. Taylor [1975] 2 Lloyd's Rep. 338 (H.C. (Sing.)) 2.46
Simon Engineering Plc v. Butte Mining Plc (No. 2) [1996] 1 Lloyd's Rep. 91;
[1997] I.L.Pr. 599 25.18
Simonds v. White (1824) 2 B. & G. 805 26.153
Singh (Joginder) v. Duport Harper Foundries Ltd [1994] 2 All E.R. 889 (C.A.)
9.39
Sinochem International Oil (London) Co. Ltd v. Mobil Sales and Supply Corpn
(No. 2) [2000] 1 Lloyd's Rep. 670 12.57, 12.65, 12.66, 12.110
Sinoe, The [1972] 1 Lloyd's Rep. 201 (C.A.) 22.32
Sion v. Hampstead Health Authority (1994) The Times, 10 June (C.A.) 11.32
Siporex Trade SA v. Comdel Commodities [1986] 2 Lloyd's Rep. 428 14.33, 16.40
Siskina, The. See Owners of Cargo Lately Laden on Boar d the Siskina v. Distos
Compania Naviera SA
Six Constructions Ltd v. Humbert (C32/88) [1989] ECR 341; [1990] I.L.Pr. 206
(ECJ) 6.152, 8.5
Skaw Prince. The [1994] LMLN 390 (H.C. Sing.) 10.45
Skinner v. Upshaw (1702) 2 Ld. Ray. 752 20.37
Skylark, The. See Atle Marine v. Owners of the Skylark
Slavenburg's Bank NV v. Intercontinental Natural Resources [1980] 1 All E.R. 955
23.58, 23.61, 23.65, 23.68
Slazengers Ltd v. Seaspeed Ferries International Ltd (The Seaspeed Dora) [1988]
1 Lloyd's Rep. 36; [1987] 3 All E.R. 967 (C.A.) 14.37
Smay Investments v. Sachev [2003] 1 W.L.R. 1973 5.34, 9.56, 9.106
Smit International (Deutschland) GmbH v. Josef Mobius Baugesellschaft GmbH &
Co. [2001] 2 All E.R. (Comm) 265 24.51
Smit International Singapore Pte Ltd v. Kurnia Dewi Shipping SA (The Kurnia
Dewi) [1997] 1 Lloyd's Rep. 552 9.85
Smith v. Peters (1875) L.R. 20 Eq. 511 14.30
Smith's Dock Co Ltd v. Owners of the St Merriel (The St Merriel) [1963] P. 247;
[1963] 1 Lloyd's Rep. 63 2.109, 2.12 1, 2.129, 10.23, 10 .27, 19.5, 19.38
Smyth v. Behbehani [1999] I.L.Pr. 584 (C.A.) 25.51
Soc. Sectom v. Soc. Fremo (1981) 1982 ECD 230 28.55
Societa Kretsehmer v. Muratori [1991] I.L.Pr. 361 (It. Cass. (I.)) 6.146
Société Biomecanique Integree v. Fabrique Nationale de Herstal SA [1993] I.L.Pr.
127 (Cass. (Fr.)) 28.71
Société Brasserie du Pecheur v. Kreissparkasse Main-Spessart [1997] I.L.Pr. 173
(Cass. (Fr.)) 28.47
Société Commerciale de Reassurance v. Eras International Ltd (formerly Eras
(UK)) [1992] 1 Lloyd's Rep. 570; [1992 ] 3 All E.R. 82 (C.A.) 11.7, 11.15
Société Commerciale de Reassurance v. Eras International Ltd (No. 2) [1995] 2
All E.R. 278; [1995] 1 Lloyd's Rep. 64 14.18
Société d'Informatique Service Realisation Organisation (SISRO) v. Ampersand
Software BV (C432/93) [1996] Q.B. 127; [1996] 2 W.L.R. 30; [1995] All E.R. (E.C.)
783 (ECJ) 28.55, 28.99, 28.115
Société Filtertechniek Nederland BV v. Hoff [1998] I.L.Pr. 196 (C d'A (Paris))
6.145, 6.146
Société Gola Werke Gotz KG v. André Barseghian (1979) ECD 1-5.1.2—B25
(Cour d'Appel Lyon) 5.32
Société Launay v. Deyglat (1979) ECD 1-28-B2 (Cour d'A. (Orleans)) 28.47
Société Leybold v. Seima (1978) ECD 1-6-B3 6.188
Societe Luxguard v. Societe SN Sitraco [1996] I.L.Pr. 5 (Cour d'A (Versail les))
6.85
Société Marcel Marie v. Societe Henco [1998] I.L.Pr. 807 (Cour d'A (Paris)) 5.47
Société Montedison v. Departement de la Haute Corse (1977) ECD 1 -5.3—B3
(Cour d'Appel (Bastia)) 12.47
Société Nationale Industrielle Aerospatiale (SNIA) v. Lee Kui Jak [1987] A.C.
871; [1987] 3 W.L.R. 59; [1987] 3 All E.R. 510 (P.C.) 25.18
Society of Lloyd's v. White (No. 1} (2000) The Times, 14 April 25.17, 25.20
Soeraya Emas, The [1992] LMLN 3.3 (H.C. (Sing.)) 10.81
Sohio Supply Co. v. Gatoil (USA) Inc. [1989] 1 Lloyd's Rep. 588 12.64
Soinco SACI v. Novokuznetsk Aluminium Plant Base Metal -Trading Co.
(Appointment of Receiver) [1997] 2 Lloyd's Rep. 330 25.67
Soinco SACI v. Novokuznetsk Aluminium Plant (No. 1) [1998] 2 Lloyd’s Rep. 337
(C.A.) 27.66
Soinco SACI v. Novokuznetsk Aluminium Plant (No. 2) [1998] 2 Lloyd’s Rep. 346
(C.A.) 27.35
Sokana Industries Inc. v. Freyre & Co. Inc. [1994] 2 Lloyd’s Rep. 57 13.44, 25.10
Soleh Boneh International v. Uganda and National Housing Corpn [1993] 2 Lloyd’s
Rep. 208 (C.A.) 12.119
Soleimany v. Soleimany [1999] Q.B. 785; [1998] 3 W.L.R. 811; [1999] 3 All E.R.
847 (C.A.) 27.66
Solo Kleinmotoren GmbH v. Emilio Boch (C414/92) [1994] ECR I–2237; [1994]
I.L.Pr. 457 (ECJ) 28.11
Somafer SA v. Saar-Ferngas AG (C33/78) [1978] ECR 2183; [1979] 1 CMLR 490
(ECJ) 6.1, 6.124. 6.125. 6.172, 6.173, 6.175, 6.177
Somes v. British Empire Shipping Co. (1860) 8 H.L. Cas. 338 20.4
Sonatrach Petroleum Corpn (BVI) v. Ferrell International Ltd [2002] 1 All E.R.
(Comm.) 627 26.56
Sonia S, The [1983] 2 Lloyd’s Rep. 63 2.188
Sonntag (Volker)Waidmann (Hans) (C172/91) [1993] ECR I —1963; [1993] I.L.Pr.
466 (ECJ) 28.12, 28.68, 28.115
Source Ltd v. TUV Rheinland Holding AG [1997] I.L.Pr. 514 (C.A.) 6.137, 6.143,
6.161
South Carolina Insurance Co. v. Assurantie Maatshappij "De Zeven Provincien"
NV [1986] 2 Lloyd's Rep. 317 (H.L.) 14.19
Span Terza. The [1982] 1 Lloyd's Rep. 225 2.139, 10.26, 10.39, 10.52, 10.53,
15.14
Span Terza (No. 2), The [1984] 1 Lloyd's Rep. 119 (H.L.) ; reversing [1983] 1
Lloyd's Rep. 441 (C.A.); affirming [1982] 2 Lloyd's Rep. 72 25.57
Spears v. Hartley (1800) 3 Esp. 81 20.22
Spedag Scheepvaart en Expeditebednff BV v. Andria Reederei GmbH and Co. KG,
1985 [1986] ELD 206 (R.B. Rotterdam) 5.49
Speed Investments Ltd v. Formula One Holdings Ltd [2004] EWCA Civ. 1512
(C.A.); [2004] EWHC 3215 5.22, 5.25, 5.26
Spermina, The (1923) 17 Ll. L. Rep. 52 23.170
Spiliada Maritime Corpn v. Cansulex Ltd (The Spiliada) [1986] 3 All E.R. 843;
[1987] 1 Lloyd's Rep. 1 (H.L.) 9.74, 9.78, 9.93, 9.94, 11.10, 11.11, 12.97, 12.100 -
12.102, 12.104, 12.108
Spirit of Independence, The. See Owners of The Spirit of Independence v. Wear
Dockyard Ltd
Staffordshire, The (1872) Asp. M.L.C. 365; (1872) L.R. 4 P .C. 194 15.120,
15.133, 18.39
Stainbank v. Fenning (1851) 11 C.B. 51 2.98, 18.73
Stainbank v. Shephard (1853) 13 C.B. 418 2.98, 18.73, 18.114
Standard Bank London Ltd v. Apostolakis (No. 1) [2003] I.L.Pr. 29 (First Inst. Ct
(Athens)); [2000] I.L.Pr. 766 (Q.B.D. (Comm. Ct)) 6.115
Stapleton v. Hayman (1864) 2 H. & C. 918 23.31
Star of Luxor, The [1981] 1 Lloyd's Rep. 139 12.78
Star Shipping AG v. China National Foreign Trade Transportation Corpn (The Star
Texas) [1993] 2 Lloyd's Rep. 445 (C.A.) 12.56, 13.32, 26.56, 26.71, 26.79, 26.82,
26. 157
Starlight International Inc. v. Bruce [2002] I.L.Pr. 35 27.40
Steedman v. Schofield [1992] 2 Lloyd's Rep. 163 2.44, 2.46, 11.23, 18.31, 18.32
Stella Nova, The [1981] Com. L.R. 200 2.192, 2.202, 15.65, 25.5
Stena Nautica (No. 2), The. See CN Marine Inc. v. Stena Line A/B
Stena Pacifica, The. See Navigazione Alta Italia SpA v. Concordia Maritime
Chartering AB
Stephan J. The [1985] 2 Lloyd's Rep. 344 10.68, 15.55
Stocznia Gdanska SA v. Latvian Shipping Co. [1998] 1 All E.R. 883; [1998] 1
Lloyd's Rep. 609 (H.L.) ... 25.44
Stolt Filia, The [1980] LMLN 15 16.12, 25.64
Stolt Loyalty, The [1995] 1 Lloyd's Rep. 598 (C.A.) 11.4
Stolt Sydness, The. See Mauritius Oil Refineries Ltd v Stolt -Nielsen Nederlands
BV
Stoppani SPA v. Stoppani France [1999] I.L.Pr. 384 (Cass. (F.)) 6.147
Strang Steel & Co. v. A. Scott & Co. (1889) L.R. 14 App. Cas. 601 (PC.) 20.47
Strathaird Farms Ltd v. G. A. Chattaway & Co. 1993 SLT (Sh. Ct.) 6.134, 7.8
Strathnaver, The (1875) L.R. 1 App. Cas. 58 (P.C.) 15.117
Strathnewton, The. See D/S A/S Idaho v. Peninsular & Oriental Steam Navigation
Co. Ltd
Stream Fisher, The [1927] P. 73; (1926) 26 L1. L. Rep. 4 2.65, 23.133, 23.136,
23. 159
Struma, The [1978] AMC 2146 26.180
Sullivar, The [1965] 2 Lloyd's Rep. 350 25.55
Sultan (Cargo ex), The (1850) Swab. 504 2.99
Sumitomo v. Alexandrea [2002] 3 S.L.R. 56 (H.C. Sing.) 10.25
Supply of Equipment for the Purification of Waste Gases, Re [1998 ] I.L.Pr. 77
((B.G. (Swi.)) 6.147, 6.149
Surzur Overseas Ltd v. Koros [1999] 2 Lloyd's Rep. 611 (C.A.) 5.82, 5.91
Swan v. Barber (1879) 5 Ex. D. 130 20.39
Swiss Bank Corpn v. Novorissiysk Shipping Co. (The Petr Shmidt) [1995] 1
Swiss Reinsurance Co. Ltd v. United India Insurance Co. [2004] EWHC 237 9.75
Syal v. Heyward [1948] 2 K.B. 443; [1948] 2 All E.R. 576 (C.A.) 27.35
Sylph. The (1867) L.R. 2 A. & E. 24 2.69
Sylt. The [1991] 1 Lloyd's Rep. 240 15.93, 15.94, 24.123, 27.33
Sylvan Arrow, The (No. 1) [1923] P. 14; (1922) 13 Ll. L. Rep. 50 18.64, 18.67
Sydney Cove, The (1815) 2 Dods. 11 2.78, 23.140
Sydney Express, The [1988] 2 Lloyd's Rep. 257 5.34
Synovia, The [1976] 1 Lloyd's Rep. 40 15.106
Szalatnay-Stacho v. Fink [1947] K.B. 1; [1946] 2 All E.R. 231 (C.A.) 26.120
TB&S Batchelor & Co. Ltd v. Owners of the SS Merak (The Merak) [1965] 1 All
E.R. 230; [1964] 2 Lloyd’s Rep. 527 (C.A.) 11.18
TDK Tape Distributors (UK) Ltd v. Videochoice Ltd [1985] 3 All E.R. 345 16.17
TSM Compagnie d'Assurance Transports v. Geisseler Transport AG [1993] I.L.Pr.
61; [1991] I.L.Pr. 164 (HR (NL)) 6.53
TSN Kunststoffrecycling GmbH v. Jurgens [2002] 1 W.L.R. 2459; [2002] 1 All
E.R. (Comm.) 282 (C.A.) 28.65
Tacoma City, The [1991] 1 Lloyd's Rep. 330 (C.A.) 2.83
Tagart Beaton & Co. v. James Fisher & Sons [1903] 1 K.B. 391 (C.A.) 22.24
Tagus, The [1903] P. 44 2.95, 18.88, 26.41
Tanfern Ltd v. Cameron-MacDonald [2000] 1 W.L.R. 1311; [2000] 2 All E.R. 801
(C.A.) 9.4
Tangiora, The and Ranini and Takitimu [2000] 1 Lloyd's Rep. 36 (H.C. N.Z.) 10.45
Tappenden (t/a English & American Autos) v. Artus [1964] 2 Q.B. 185; [1963] 3
W.L.R. 685; [1963] 3 All E.R. 213 (CA.) 20.13, 20. 37
Tasmania, The (1888) 13 P.D. 110 18.64
Tatiangela, The. See Bakarim v. Victoria P. Shipping Co. Ltd
Tavolareas v. Tsavliris [2004] 1 Lloyd’s Rep. 445 (C.A.) 12.28
Tehno-Impex v. Gebr Van Weelde Scheepvaart Kantoor BV [1981] Q.B. 648;
[1981] 1 Lloyd's Rep. 587 (C.A.) 0.34, 13.36
Technocrats International Inc. v. Fredic Ltd [2004] EWHC 2674 16.5
Tekron Resources Ltd v. Guinea Investment Co. Ltd [2004] 2 Lloyd's Rep. 26
26.63
Tenacia, The [1982] LMLN 55 26.56
Tergeste, The [1903] P. 26 20.7, 20.19, 23.116, 23.121
Termination of an Agency Contract, Re [1998] I.L.Pr. 815 (OLG (Munchen)) 12.18
Tervaete, The [1922] P. 259; (1922) 12 Ll. L. Rep. 252 18.53, 18.62, 18.64, 18.66,
18.67, 18.68, 18.95
Tesaba, The [1982] 1 Lloyd's Rep. 397 2.171, 2.190, 2.192, 2.196, 2.198-2.200,
2.209, 2.210, 3.213
Tesam Distribution Ltd v. Schuh Mode Team GmbH [1990] I.L.Pr. 149 (C.A.) 5.91,
6.139
Texaco Southampton, The [1983] 1 Lloyd's Rep. 94 (C.A. (N.S.W.)) 2.46 Thane
Investments Ltd v. Tomlinson [2003] EWCA Civ 12 72 (C.A.) 16.37 Tharros
Shipping Co. Ltd v. Bias Shipping Ltd (The Gnparion) (No. 1) [1994] 1
Themehelp Ltd v. West [1995] 4 All E.R. 215 (C.A.) 14.21
Theotokos, The. See Oceanica Castelana Armadora SA v. Mineralimportexport
Theta, The [1894] P. 280 2.66
Third Chandris Shipping Corpn v. Unimarine SA (The Angelic Wings, The Genie
and The Pythia) [1979] Q.B. 645; [1979] 2 Lloyd's Rep. 184 (C.A.) 16.1, 16.15, 16.42
Thistle Hotels Ltd v. Gamma Four Ltd [2004] 2 B.C.L.C. 174 14.37
Thomas v. Bunn [1991] 1 All E.R. 193 (H.L.) 25.37
Thompson v. Brown Construction (Ebbw Vale) Ltd [1981] 2 All E.R. 296 (H.L.)
11.30, 11.42
Thompson v. H & W Nelson Ltd [1913] 2 K.B. 523 2.87
Thompson v. Masterson [2004] 1 Lloyd's Rep. 304 24.61
Three Rivers DC v. Bank of England (No. 1) [1995] 4 All E.R. 312 (C.A.) 18.78,
23.97
Through Transport Mutual Insurance Assoc. (Eurasia) Ltd v. New India Assurance
Co Ltd [2003] EWHC 3158 (Comm.); [2004] 1 Lloyd's Rep. 206 (H.C.); [2004] EWCA
Civ 1598; [2005] 1 Lloyd's Rep. 67 (C.A.) 4.12, 4.30, 13.14, 25.18, 25.23, 26.16,
28.12
Thyssen Inc. v. Calypso Shipping Corpn SA [2000] 2 Lloyd's Rep. 243 11.18
Ticonderoga, The (1857) Swab. 215 18.60
Tiernan v. Magen Insurance Co Ltd [2000] I.L.Pr. 517 12.104
Tinnelly & Sons Ltd v. United Kingdom [19098] 27 ECHR 72 0.18
Tjaskemolen (Now Named Visvliet), The (No. 1) [1997] 2 Lloyd's Rep. 465
10.44, 10.46
Tjaskemolen (Now Named Visvliet), The (No. 2) [1997] 2 Lloy d's Rep. 476
15.51, 15.56, 15.73, 15.79, 15.118, 18.99, 18.106
Tobago, The (1804) 5 C. Rob. 218 2.99, 18.20
Todd v. Williams [2002] 2 Lloyd's Rep. 293 24.58
Toepfer (Alfred C) International GmbH v. Molino Boschi Srl [1996] 1 Lloyd's
Rep. 510 4.30
Toepfer (Alfred C) International GmbH v. Societe Cargill France [1998] 1 Lloyd's
Rep. 379 (C.A.); [1997] 2 Lloyd's Rep. 98 25.16, 28.12
Tojo Mara (No. 2), The. See Bureau WijMiiuller NV v. Owners of the Tojo Mara
Tolstoy Miloslavsky v. United Kingdom (A/323): (1995) 20 EHRR 442 0.17
Tolten. The [1946] P. 135 (C.A.) 2.65, 2.70, 12.151, 26.123, 26.164
Toluca, The [1981] 2 Lloyd's Rep. 548 26.142
Tonicstar Ltd v. American Home Assurance Co. [2005] 1 Lloyd's Rep. 32 25.19
Toprak Enerji Sanayi AS v. Sale Tilney Technology Plc [1994] 3 All E.R. 483;
[1994] 1 Lloyd's Rep. 303 11.32
Tor Britannia, The [1982] 1 Lloyd's Rep. 410 13.29
Torch Offshore LLC v. Cable Shipping Inc. [2004] 2 Lloyd's Rep. 446 13.47
Totty v. Snowden [2002] 1 W.L.R. 1384 (C.A.) 9.35
Tracomin SA v. Sudan Oil Seeds (No. 1) [1983] 1 W.L.R. 1026; [1983] 3 All E.R.
137; [1983] 2 Lloyd's Rep. 384 (C.A.) 27.41
Tradax Internacional SA v. Cerrahogullari TAS [1981] 2 Lloyd's Rep. 169 3.56
Trade Indemnity plc v. Forsakringsaktiebolaget Njord [1995] 1 All E.R. 796 6.143
Tradigrain SA v. S.I.A.T. SpA [2002] EWHC 106 (Comm) 6.106
Trafigura Beheer BV v. Golden Stavraetos Maritime Inc [2003] 2 Lloyd's Rep. 201
(C.A.) 11.18
Trans Atlantic SpA v. Vertom Shipping 1984 ELD 393 (Italy) 28.67
Transoceanica Francesca, The and Nicos V, The [1987] 2 Lloyd's Rep. 155 25.36
Transporti Castelletti Spedizioni Internazionali SpA v. Hugo Trampy SpA
(C159/97) [1999] ECR I-1597; [1999] I.L.Pr. 492 (ECJ) 5.41, 5.45, 5.47, 5.48, 5.62
Transworld Oil (USA) Inc. v. Minos Compania Naviera SAL (The Leni) [1992] 2
Traugutt, The [1985] 1 Lloyd's Rep. 76 26.17
Travelers Casualty Co. v. Arkwright [2004] EWHC 1704 12.14
Trendtex Trading Corpn v. Central Bank of Nigeria [1977] 1 All E.R. 881; [1977]
1 Lloyd's Rep. 581 (C.A.) 12.115, 12.142
Trendtex Trading Corpn v. Credit Suisse [1982] AC. 679; 1981] 3 All E.R. 520
(H.L.); affirmed [1980] 3 All E.R. 721 (C.A.) 12.63, 12.75, 12.76, 12.79, 18.78, 2 3.94
Trepca Mines Ltd, Re [1960] 1 W.L.R. 1273; [1960] 3 All E.R. 304n (C.A.) 27.46
Triad Shipping Co. v. Stellar Chartering and Brokerage Inc. (The Island Archon)
[1994] 2 Lloyd's Rep. 227 (C.A.); affirming [1993] 2 Lloyd's Rep. 388 13.17
Trident Beauty, The. See Pan Ocean Shipping Co. v. Creditcorp
Trident International Ltd v. Barlow [1999] 2 B.C.L.C. 506 (C.A.) 17.20, 20.7,
20.10, 21.4
Troll River, The [1974] 2 Lloyd’s Rep. 181 26.142
Tropical Reefer, The. See Anton Durbeck GmbH v. Den Norske Bank ASA
Tropwave, The. See Maritime Transport Operators GmbH v. Louis Dreyfus & Cie
Troubadour, The (1866) L.R. 1 A. & E. 302 18.13
Trustor AB v. Barclays Bank Plc (2000) The Times, 22 November 9.69
Tubantia, The (No. 2) [1924] P. 78; (1924) 18 Ll. L. Rep. 158 2.22
Turiddu, The. See Cil v. Owners of the Turiddu
Turkiye Is Bankasi AS v. Bank of China (1994) [1993] 1 Lloyd's Rep. 132 26.55
Turner v. Grovit [2002] 1 W.L.R. 107 (H.L.); [1999] 3 All ER. 61 6 (C.A.) 4.44,
12.157, 25.11, 25.16
Turner v. Grovit (C–159/02) [2004] 1 Lloyd’s Rep. 169 (ECJ) 4.37, 5.44, 6.196,
12.8, 25.16, 25.18, 25.21, 28.57
Turner v. Mersey Docks and Harbour Board (The Zeta) [1893] A.C. 468 (H.L.)
2.21, 2.69, 2.144
Tuyuti, The [1984] 2 Lloyd’s Rep. 51 (C.A.) 12.92, 14.31, 14.56, 15.86, 15.89,
15.92, 15.120
Two Ellens, The (1872) L.R. 4 P.C. 161; (1871) L.R. 3 A. & E. 345 2.68, 18.13,
23.31, 23.126
Two Friends, The (1799) 1 C. Rob. 271 10.8, 18.8
Tychy, The. See MSC Mediterranean Shipping Co. SA v. Polish Ocean Lines
UBS AG v. Omni Holding AG (In Liquidation) [2000] I.L.Pr. 51 (H.C.) 4.27
Ugland Trailer, The. See Welsh Irish Ferries. Re
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139 4.38, 5.55
Unibank A/S v. Christensen (C260/97) [2000] 1 W.L.R. 1060; [2000] All E.R.
(EC) 374 (ECJ) 28.10
Unicorn Shipping Ltd v. Demet Navy Shipping Co. Ltd (The Pitsa T) [1987] 2
Lloyd’s Rep. 404 16.34, 16.38, 16.58
Union, The (1860) Lush. 128 23.140
Union Bank of London v. Lenanton (1878) L.R. 3 C.P.D. 243 (C.A.) 23.31, 26.167
Union de Remorquage et de Sauvetage SA v. Lake Avery Inc (The Lake Avery)
[1997] 1 Lloyd's Rep. 540 4.30
Union Discount Co. Ltd v. Zoller (Casts) [2001] EWCA Civ 1755; [2002] 1
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Union of India v. McDonnell Douglas Corpn [1993] 2 Lloyd’s Rep. 48 13.35,
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Union International Insurance Co. Ltd v. Jubilee Insurance Co. Ltd [1991] 2
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[1959] 2 Q.B. 44; [1959] 2 W.L.R. 532; [1959] 1 All E.R. 721; [1959] 1 Lloyd's Rep.
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Union Steel America Co. v. M/r Santo Spruce [1999] A.M.C. 344 11.9, 12.74
Union Transport Group Plc v. Continental Lines SA [1992] 1 All E.R. 161; [1992]
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Unique Mariner, The (No. 2) [1979] 1 Lloyd's Rep. 37 2.46, 2.48
United Mizrahi Bank Ltd v. Doherty [1998] 2 All E.R. 230 16.5
United Railways of Havana and Regla Wa rehouses Ltd, Re [1960] Ch. 52; [1959]
2 W.L.R. 251; [1959] 1 All E.R. 214 (C.A.) 26.57
United States Steel Products Co. v. Great Western Railway Co. [1916] 1 A.C. 189
(H.L.) 20.25
Unitramp SA v. Maritime Trader (The Maritime Trader) [1981] 2 Lloyd’s Rep.
153 10.44, 10.52, 10.53, 15.89
Universal Steels Ltd v. Skanska Construction UK Ltd [2003] Scots C.S. 271 7.8
Utopia, The [1893] A.C. 492 (P.C. (Gib.) 2.141, 18.64
Vadala v. Lawes (1890) L.R. 25 Q.B.D. 310 (C.A.) 27.35
Vale do Rio doce Navegacao SA v. Shanghai Bao Steel Ocean Shipping Co. Ltd
(t/a Baosteel Ocean Shipping Co.) [2000] 2 Lloyd's Rep. 1; [2000] 2 All E.R. (Comm)
70 9.98, 13.12, 13.21, 13.23, 13.24, 25.45
Van Dalfsen v. Van Loon (C183/90) [1991] ECR I—4743; [1992] I.L.Pr. 5 (ECJ)
28.6, 28.101, 28.115
Van Der Linden v. Berufsgenossenschaft Der Feinmechanik Und Elektrotechnik
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Vanessa Ann, The [1985] 1 Lloyd's Rep. 549 2.125, 15.120, 15.127, 19.19
Vao Exportkhleb v. Navigation Maritime Bulgare (The Varna) (No. 2) [1994] 2
Lloyd's Rep. 41 12.104, 19.12
Varna, The [1993] 2 Lloyd's Rep. 253 (C.A.) 10.29, 15.56, 15.82, 15.98, 15.118
Varna (No. 2), The. See Vao Exportkhleb v. Navigation Maritime Bulgare
Vasilia, The [1972] 1 Lloyd's Rep. 51 18.88, 25.55
Vera Cruz, The [1992] 1 Lloyd's Rep. 353 16.14
Vera Cruz (No. 2), The (1884) L.R. 10 App. Cas. 59 (H.L.) 2.73, 2.75
Verein fur Konsumenteninformation v. KH Henkel (C167/00) [2003] I.L.Pr. 1
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Veritas, The [1901] P. 304 2.42, 2.49, 2.65, 2.68, 23.133
Vestland, The [1980] 2 Lloyd's Rep. 171 15.109, 22.31
Victor, The (1860) Lush. 72 18.41
Victrix Steamshop SA v. Salem Dry Cargo AB (SDNY) 1987 AMC 276 4.29,
27.63
Vikfrost. The. See W & R Fletcher (New Zealand) v. Sigurd Haavik A/S
Vimar Seguros Y Reaseguros SA v. M/V The Sky Reefer 1995 A.M.C. 1817 12.74
Virani Ltd v. Manuel Revert y Cia SA [2004] 2 Lloyd's Rep. 14 (C.A.) 25.36
Virgin Aviation Services Ltd v. CAD Aviation Services [1991] I.L.Pr. 79; (1990)
The Times, 2 February 12.17, 12.49, 28.17
Virgo, The. See Consolidated Investment & Contracting v. Saponaria Shipping Co.
Vishra Ajay, The [1989] 2 Lloyd's Rep. 558 12.102
Vishva Abha, The [1990] 2 Lloyd's Rep. 312 12.102, 12.108, 24.100
Viskase Ltd v. Paul Kiefal GmbH [1999] 1 W.L.R. 1305; [1999] 3 All E.R. 362
(C.A.) 6.15 1
Vita, The [1990] 1 Lloyd's Rep. 528 11.4
Vita Food Products Inc. v. Unus Shipping Co Ltd (In Liquidation) [1939] A.C. 277;
(1939) 63 Ll. L. Rep. 21 (P.C.) 26.56, 26.64, 26.102
Vitol Energy (Bermuda) Ltd v. Pisco Shipping Co. Ltd [1998] 1 Lloyd’s Rep. 509
(C.A.) 9.27, 9.29
Volvox Hollandia (No. 1), The. See Saipem SpA v. Dredging VO2 BV
Von Horn v. Cinnamond (C163/95) [1997] All E.R. (EC) 913 (ECJ) 8.1, 12.13
Von Rocks, The [1998] 2 Lloyd’s Rep. 198 (Sup. Ct (Ir.)) 2.44, 2.46, 11.23, 15.40,
18.31, 18.32
Vosnoc Ltd v. Transglobal Projects Ltd [1998] 1 W.L.R. 101; [1998] 1 Lloyd’s
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Vrontados, The. See Afro Continental Nigeria v. Meridian Shipping Co SA
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W. H. Martin Ltd v. Feldbinder Spezialfahrzeugwerke GmbH [1998] I.L.Pr. 794
(C.A.) 6.146
W & R Fletcher (New Zealand) v. Sigurd Haavik A/S (The Vikfrost) [1980] 1
Waddon v. Whitecroft-Scovill Ltd [1988] 1 All E.R. 996 (H.L.) 9.37
Wagner v. Tettweiler [1985] ECC 258 (Cass. (F.)) 28.58
Wahda Bank v. Arab Bank Pic (Conflict of Law) [1996] 1 Lloyd's Rep. 470 (C.A.)
26.55
Wait. Re [1927] 1 Ch. 606 (C.A.) 10.47, 21.12, 23.18
Walker v. Rowe [2000] 1 Lloyd's Rep. 116 25.39
Walkley v. Precision Forgings Ltd [1979] 2 All E.R. 548 (H.L.) 11.30
Wasp, The (1867) US 1 A. & E. 367 18.83
Waterford Wedgwood Plc v. David Nagli Ltd (Third Party Notice) [1999] I.L.Pr. 9
6.162, 6.193, 9.69
Watson v. First Choice Holidays & Flights Ltd and Aparta [2001] 2 Lloyd’s Rep.
339 (C.A.) 6.190, 6.191, 6.192
Wavertree Sailing Ship Co. Ltd v. Love [1897] A.C. 373 (P.C.) 26.153
Waverley Asset Management Ltd v. Saha 1989 SLT (Sh. Ct.) 87 7.8
Wayling v. Jones [1993] EGCS 153 21.13
Waziristan, The and The Seristad [1953] 2 Lloyd's Rep. 361 26.123
Wealands v. CLC Contractors Ltd [1999] 2 Lloyd's Rep. 739 (C.A.) 13.42. 13.56
Webb (George Lawrence) v. Webb (Lawrence Desmond) (C294/92) [1994] 3 All
E.R. 911 (ECJ) 5.20
Weber v. Eurocard Belgium-Luxembourg SA [1993] I.L.Pr. 55 (C d'A (Lux.)) 5.70
Weber v. Universal Ogden Services Ltd (C37/00) [2002] All E.R. (EC) 397 (ECJ)
6.153
Weinor v. Sari Wirion Mod'enfants (1975) ECD 1-28-B1 28.47
Welex AG v. Rosa Maritime Ltd [2003] EWCA Civ 938 (C.A.) 25.17
Wells v. Osman (1704) 2 Ld Ray 1044 10.8, 18.70
Wells v. Owners of the Gas Float Whitton (No. 2) [1897] A.C. 337 (H.L.) 2.46.
2.135
Welsh Development Agency v. Redpath Dorman Long Ltd [1994] 1 W.L.R. 1409;
[1994] 4 All E.R. 10: (1994) The Times, 4 April (C.A.) 11.35
Welsh Irish Ferries, Re (The Ugland Trailer) [1985] 2 Lloyd's Rep. 372 17.8,
21.11, 22.21, 22.22, 23.62, 23.69
West of Scotland Ship Owners Mutual P rotection and Indemnity Association
(Luxembourg) v. Aifanourios Shipping SA (The Aifanourios) [1980] 2 Lloyd's Rep. 403
2.184, 2.185, 2.193
Westacre Investments Inc. v. Jugoimport SPDR Holding Co. Ltd [1999] 1 All E.R.
(Comm.) 865; [1999] 2 Lloyd's Rep. 65 , (C.A.) 26.63, 26.68, 27.66
Western Fish Products Ltd v. Penwith DC [1981] 2 All E.R. 204 (C.A.) 21.13
Western Regent, The [2005] EWHC 460 12.51, 24.15, 24.46, 24.93, 25.19
Westland Helicopters Ltd v. Arab Organisation for Industrialisation [1995] 2 All
E.R. 387; [1994] 2 Lloyd's Rep. 608 26.57
Westminster, The (1841) 1 W. Rob. 229 2.48
Westminster Bank Ltd v. West of England Steamship Owners Protection and
Indemnity Association Ltd (1933) 46 Ll. L. Rep. 101 18.105
Westport, The (No. 1). See British Mexican Petroleum Co. Ltd v. Owners of the
Motorship Westport
Westport, The (No. 3) [1966] 1 Lloyd’s Rep. 342 2.234
Westport, The (No. 4) [1968] 2 Lloyd’s Rep. 559 2.81, 2.82
Westrup v. Great Yarmouth Steam Carrying Co. (1889) 43 Ch. D. 241 2.112
Westwood v. Bell (1815) 4 Camp. 349 20.54
Wexford, The (18831 13 P.D. 10 15.126, 25.55
Wild Ranger, The (1863) B. & L. 84 18.105
Wflhelm Tell. The [1892] P. 337 2.88, 18.86
Willem III, The (1871) L.R. 3 A. & E. 487 18.41
Wilkey v. BBC [2003] 1 W.L.R. 2 9.24
William Grant & Sons International Ltd v. Marie Brizard et Roger International SA
[1997] I.L.Pr. 391 12.38, 28.101
William Money. The (1827) 2 Hag. Adm. 136 18.114
William Safford, The (1860) Lush. 69 23.140, 23.144
Williams v. Allsup (1861) 10 C.B. (N.S.) 417 23.112
Williams & Glyn's Bank v. Astro Dinamico Comp Nav SA [1984] 1 Lloyd's Rep.
453; [1984] 1 All E.R. 760 (H.L.) 9.60, 12.53, 27.39
Williams & Humbert Ltd v. W&H Trade Marks (Jersey) Ltd [1986] A.C. 368;
[1986] 2 W.L.R. 24; [1986] 1 All E.R. 129 (H.L.) 26.9
Winkfield, The [1902] P. 42; [1900-03] All E.R. Rep. 346 (C.A.) 23.49
Winnie Rigg. The. See R. v. Carrick DC. ex p. Prankerd
Winson, The. See China-Pacific SA v. Food Corpn of India
Winter Maritime Ltd v. North End Oil Ltd (The Winter) [2000] 2 Lloyd's Rep. 298
28.19
Wladyslaw Lokietek, The [1978] 2 Lloyd's Rep. 520 15.122. 24.13, 24.34, 24.128
Woodhouse v. Consignia Pic [2002] EWCA Civ 275 (C.A.) 0.18
Woolfson v. Strathclyde Regional Council 1978 SLT 159 (H.L.) 10.44
World Harmony, The. See Konstantinidis v. World Tankers Corpn Inc.
World Star, The (No. 1) [1986] 2 Lloyd's Rep. 274 15.91
World Star, The (No. 2) [1987] 1 Lloyd's Rep. 452 15.102, 15.115, 23.9
Worldwide Carriers Ltd v. Ardtran International Ltd [1983] 1 Lloyd's Rep. 61
11.16
Wrightson v. Mcarthur & Hutchisons Ltd [1921] 2 K.B. 807 23.63
X v. Y and Y Establishment [1989] 3 All E.R. 689; [1989] 2 Lloyd's Rep. 561
9.71, 9.92
Xenos v. Wickham (1863) C.B. (N.S.) 435 20.52
Xin Yang, The and An Kang Jiang. The [1996] 2 Lloyd's Rep. 217 12.20
Xing Su Hai, The. See Qingdao Ocean Shipping Co. v. Grace Shipping
Establishment Transatlantic Schiffahrtskontor GmbH
Xingcheng and Andro, The. See China Ocean Shipping Co. (The Xingcheng) v.
Andros (The Andros)
Yorkshire Insurance Co. Ltd v. Nisbet Shipping Co. Ltd [1962] 2 Q.B. 330: [1961]
1 Lloyd's Rep. 479 18.87
Youell v. Kara Mara Shipping Co. Ltd [2000] 2 Lloyd's Rep. 102 9 .87, 25.17,
25.51
Young Mechanic, The (1845) 30 Fed. Cas. 783 10.13, 18.20
Young v. S.S. Scotia, The [1903] A.C. 501 (PC ) 12.140, 12.145
Young v. Western Power Distribution (South West) Plc [2003] EWCA Civ 1034
11.30
Yukong Line Ltd of Korea v. Rendsburg Investments Corp. of Liberia (The Rialto)
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Yukos Oil Co. v. Dardana Ltd [2002] EWCA Civ 543 (C.A.) 14.55
Yuta Bondarovskaya, The [1998] 2 Lloyd's Rep. 357 10.6, 10.67
Z Bank v. D1 [1994] 1 Lloyd's Rep. 656 16.53, 16.57
Z Ltd v. A-Z and AA-LL [1982] Q.B. 558; [1982] 1 Lloyd's Rep. 240 (CA.)
14.27,16.1, 16.18, 16.37, 16.38, 16.42, 16.49, 16.53, 16.55, 16.56, 16.57, 16.59,
23.102, 23.118
Zafiro, The. See John Carlbom & Co. Ltd v. Owners of the Zafiro
Zair v. Eastern Health and Social Services Board [1999] I.L.Pr. 823 (C.A.) 5.91
Zelger v. Salinitri (C56/79) [1980] ECR 89; [1980] 2 CMLR 635 (ECJ): 5.41,
6.156
Zelger v. Salinitri (129/83) [1984] ECR 2397; [1985] 3 CMLR 366 (ECJ) 12.26 ,
12.28
Zellner v. Phillip Alexander Securities & Futures Ltd (6 O 186/95) [1997] I.L.Pr.
716 (L.G. (Krefeld)) 6.175
Zeta, The. See Turner v. Mersey Docks and Harbour Board
Zeus, The (1886) 6 Asp. M.L.C. 312 2.192
Zeus. The (1888) 13 P.D. 188 2.188
Zhi Jiang Kou, The [1991] LMLN 300, [1991] 1 Lloyd's Rep. 493 (C.A. (N.S.W.))
11.5
Ziemniak v. ETPM Deep Sea Ltd [2003] EWCA Civ 636 2.28
Zigurds, The; sub nom. Smith v. Owners of the SS Zigurds [1934] A.C. 209;
(1933) 47 Ll. L. Rep. 267 (H.L.); affirming [1933] P. 87; (1933) 45 Ll. L. Rep. 1
(C.A.); reversing [1932] P. 113; (1932) 43 Ll. L. Rep. 387 23.9, 23.95, 23.96, 23.152,
23.153, 23.159, 26.41
Zirje, The [1989] 1 Lloyd's Rep. 493 11.25
Zucker v. Tyndall Holdings Plc [1992] 1 W.L.R. 1127; [1993] 1 All E.R. 124
(C.A.) 16.14
Zygal Dynamics Plc v. McNulty [1989] C.A. Transcript 571 16.3
Table of Statutes
Access to Justice Act 1999—
s. 31 9.79
Administration of Justice Act 1920 2.178, 19.4, 27.13, 27.26, 27.52, 27.54, 27.55,
27.67
s. 4(1)(a), (b) 27.56
s. 5 2.174
s. 9(2) 27.53
ss. 12–14 27.52
Administration of Justice Act 1956 0.25, 0.27, 0.34, 2.13, 2.15, 2.18, 2.19, 2.22,
2.43, 2.72, 2.81, 2.87, 2.96, 2.121, 2.122, 2.128, 2.130, 2.139, 2.165, 2.167, 2.174,
2.217. 2.218, 2.225, 2.232, 2.235, 2.244, 10.2, 10.3, 10.32, 10.43, 10.51, 10.54,12.148,
19.5, 23.151, 25.61
Pt V 1.1, 12.140
s. 1 2.87, 3.28
(1) 2.87
(g), (h) 2.178
(o) 2.224, 2.229, 18.71
ss. 2–6 3.28
s. 7 3.28
(1) 2.105
s. 8 3.28
s. 47 2. 184
(2)(d), (e) 2.184
s. 48 18.31
s. 51(1) 27.67
Administration of Justice Act 1982 2.168, 25.38
s. 4 18.89 s. 6
14.12 s. 15 13.36,
25.38
s. 53 25.67
Sch. 1 13.36
Pt I 25.38
Admiralty Court Act 1840 0.24, 2.42, 2.59, 2.68, 2.69, 2.79, 2.102, 2.216, 2.215,
18.6, 18.10, 19.2, 19.3
s. 3 2.127
s. 4 2.122
s. 6 2.42, 2.49, 2.59, 2.2 18, 19.3
Admiralty Court Act 1861 0.24, 0.34, 2.42, 2.43, 2.68, 2.69, 2.79, 2.90, 2.102,
2.124, 18.6, 18.71, 19.2, 19.3
s. 4, 5 2.218
s. 6 2.178
s. 7 2.69, 19.3
s. 9 19.3
s. 10 2.42, 2.81, 19.3
s. 11 2.127
Arbitration Act 1950 9.98, 13.45
Pt II 13.10, 13.60, 27.63, 27.64
Pt III 27.65
s. 12(1) 14.31
s. 21 13.45
s. 27 13.52
s. 36(1) 27.64 s. 37(1) 27.64 s. 40(a)
27.64 Arbitration Act 1975 9.60, 9.95,
13.9
Arbitration Act 1979 9.98, 13.46, 13.49, 13.50
s. 1(2) 13.46
s. 2 13.46
Arbitration Act 1996 0.13, 3.31, 9.98, 12.74, 12.88, 13.1, 13.3, 13.5, 13.7, 13.8,
13.9, 13.17, 13.27, 13.28, 13.31, 13.34, 13.40, 13.42, 13.49, 13.51, 13.54, 13.59,
13.60, 14.1, 14.4, 14.58, 25.17, 25.46, 26.2, 26.14, 26.78, 26.82, 27.65, 27.67
Pt I (ss. 1–84) 13.50
s. 1 13.8
s. 2 9.98, 13.25, 26.13, 26.78
(3) 14.57
(b) 16.10
(5) 13.28, 13.33, 13.37
s. 3 13.25, 27.65
s. 4 13.28
(1) 13.8
(5) 25.39
s. 5 13.17
13.33, 13.37,
s. 7 13.28, 26.78
(3) 13.9 13.41, 13.44,
s. 8 13.28
s. 9 12.88, 13.50, 26.78
(2) 13.41
s. 10 13.44, 26.78
s. 10A 27.67
s. 11 14.56, 26.78
s. 12 11.18, 13.44, 13.52
(1) 27.67
(2), (6) 13.52
s. 13 11.16, 11.28, 13.44
(1) 11.28, 13.51
(2) 11. 28
s. 13(3) 11.28, 13.51
(4)(a), (b) 13.51
s. 14 11.13, 11.16, 11.28, 13.54
ss. 16–19, 21, 24, 25 13.44
s. 27 13.52, 13.56
s. 30 13.21, 13.37, 13.44
s. 31 13.37, 13.44
(1)-(5) 13.21
s. 32 13.44, 13.47
(2)(b) 13.21
(4)–(6) 13.21
ss. 33, 34, 37 13.44
s. 38 13.44
(1) 13.44, 14.53
(2)–(6) 13.53
s. 39 14.53
(4) 14.53
s. 41 13.44
(1) 13.44
(3), (5), (6) 13.57
s. 42 13.44
s. 43 13.44, 26.78
(3), (4) 14.54
s. 44 13.8, 13.44, 14.7, 14.54, 16.10, 26.78
(1)-(4), (6) 14.54
s. 45 13.8, 13.44, 13.47, 14.54
(2) 13.47
s. 46 13.28, 13.44
s. 48 13.44
s. 49 13.44, 25.39
ss. 50, 59–65 13.44
s. 66 13.44, 26.78, 27.65
(2) 25.39
s. 67 13.44, 13.47, 25.46
(4) 13.49
s. 68 13.44, 13.47, 25.46
(4) 13.49
s. 69 13.8, 13.44, 13.47, 13.50, 25.46
(6), (8) 13.49
s. 70 13.44, 13.47, 25.46
s. 71 13.44
s. 72 13.49
(2) 13.47
(a), (b) 13.47
s. 73 13.21
s. 79 13.44, 13.59
s. 80(5) 13.47
s. 81(1)(a) 13.41
(c) 13.30, 13.41, 25.7
s. 85 12.88, 13.8
s. 86 12.88, 13.8, 13.44
(2)(a), (b) 13.41
s. 87 13.8, 13.47
s. 99 13.10, 27.63
s. 100(1) 27.65
(2)(b) 27.65
s. 101 13.44, 27.67
s. 102 27.67
s. 103 27.67
(3) 25.7
s. 104 27.65 s.
107 13.50 Sch. 1
13.8, 13.28
Sch. 3
Para. 37 13.50
Sch. 4 14.46A, 14.46
Arbitration (International Disputes) Act 1966 27.63
Bankers’ Books Evidence Act 1879 3.4
Banking Act 1987—
s. 108(1) 25.67
Sch. 6 25.67
Bills of Sale Act 1878 21.8, 21.9, 21.15, 23.7, 23.20, 23.21, 23.31, 23.56, 23.57,
23.58, 23.103, 23.106
s. 4 21.9, 23.58 ss. 8, 10 23.23 Bills of Sale Act 1882 21.8, 21.9, 21.15, 23.7,
23.21, 23.31, 23.57, 23.103,
23. 106
s. 3 21.9
ss. 4, 5, 8, 9 23.59
Bills of Sale Act 1890—
s. 1 23.58
British Nationally Act 1981 4.21
Carriage by Air Act 1961— Schedule 11.12
Carriage by Air and Road Act 1961— Sch. 1 11.12
Carriage by Railway Act 1972—
s. 6 11.12
Schedule 11.12
Carriage of Goods by Road Act 1965 11.16, 12.69, 12.72, 15.32, 24.22
s. 1 10.61
s. 4 27.56
s. 7 27.67
Schedule 3.25, 10.61, 11.12
Art. 31, 33 13.16
Carriage of Goods by Sea Act 1971 11.16, 11.18, 12.71, 24.22, 26.65, 26.101
s. 1(3) 26.11
(6)(a) 26.11
Schedule 11.12
Carriage of Goods by Sea Act 1992 5.62, 9.10, 9.87, 12.62, 12.68, 17.20, 23.1,
23.92, 23.106, 26.162
s. 6(5)—(8) 9.10
Carriage of Passengers by Road Act 1974 —
s. 5 27.56
Charging Orders Act 1979 21.3, 23.101, 25.67
Children Act 1989—
s. 3(4) 23.101
Sch. 13 7.10
Civil Aviation Act 1982 20.60
s. 87 2.2 12
Civil Jurisdiction and Judgments Act 1982 0.30, 0.31, 1.6, 1.42, 1.46, 1.47, 2.19,
3.41, 3.42, 7.2, 9.68, 9.70, 9.71, 9.96, 10.27, 10.34, 12.72, 14.12, 14.28, 14.71, 14.75,
15.129, 27.4, 27.10, 27.11, 27.13, 28.10, 28.87
s. 1(1), (2) 27.54
s. 1(3) 3.47
(10) 27.54
s. 2A 27.54
s. 3 4.10
s. 4(3) 28. 101
s. 10 4.20, 7.5
s. 10A 27.54
s. 16 4.20, 7.2, 7.5
(3) 7.8
s. 17 7.10
s. 18 27.10
(1) 27.62
(2)(e) 27.62
(5)(b), (d) 27.10
(7 ) 2 7 . 1 0
(8 ) 2 7 . 6 2
s. 19(1) 27.12, 27.62
s. 24 14.12, 14.45, 14.46A, 15.89, 15.129
(1) 14.15, 14.45
(2) 1 4 . 4 5
s. 25 9.71, 9.79, 9.91, 9.92, 14.45, 14.46, 14.46A, 14.48, 14.49, 14.60, 14.70,
14.71, 14.72, 15.89, 15.129, 16.1, 16.11A, 16.25
(1) 14.12, 14.46A
(2) 14.46A, 16.25
(3) 14.12, 14.46A, 26.5
(4), (5) 14.46A
S. 26 10.29, 12.79, 12.87, 12.91, 12.157, 14.12, 14.47, 14.72, 15.44, 15.86, 15.87,
15.92, 15.94, 15.120, 18.100, 19.37
(2) 14.43, 15.51, 15.95
(3) 18.101
s. 27 15.87
s. 30 3.4, 26.123, 26.164
(1) 12.152
s. 31 27.61
(3) 27.61
s. 32 27.35, 27.41
(1) 27.42
(4) 27.42, 27.56
s. 33 27.39, 27.40, 27.43
(2) 27.39
s. 34 10.15, 12.112, 15.64, 19.12, 27.4
s. 35(1) 27.54
(2) 27.52
s. 38 27.56
s. 39 4.21
s. 41 4.18, 4.19, 5.96
(4), (5), (6) 7.3
s. 42 4.18, 4.19, 5.102
(4), (5) 7.3
s. 43 4.18, 5.24, 5.106, 5.107, 5.113, 7.5
s. 44 4.18, 4.19, 5.96, 7.5
s. 45 4.18, 4.19, 5.110
s. 46 5.111
s. 49 12.97
s. 50 4.18, 5.102
Sch. 4 6.136, 7.2, 7.6, 7.8, 12.152, 27.26
Sch. 5 7.2, 7.6, 7.10, 7.11, 7.14, 12.152
Sch. 6 27.10, 27.16
Para. 5 27.18
Para. 7, 8 27.15
Para. 9 27.19
Para. 10 27.20
Sch. 7 27.10
Para. 7 27.15
Sch. 10 27.54, 27.67
Sch. 13
Para. 8(3) 27.56
Civil Jurisdiction and Judgements Act 1991 0.30, 1.6, 1.46, 1.47, 3.41, 3.47, 7.2,
9.68, 9.70, 12.72, 28.87
Sch. 2
Para. 12 9.79, 14.46A, 15.87
Para. 15 27.39
Civil Liability (Contribution) Act 1978 11.28
S, 1(5) 26.5
Civil Procedure Act 1997 14.16
s. 1 2.8
s. 8 14.15
Companies Act 1948 15.49, 18.113, 23.60
Companies Act 1985 5.26, 7.11, 9.50, 20.10, 21.1, 21.5, 21.8, 21.11, 22.33, 23.67,
23.82, 23.106, 23.113
Pt XII 23.7, 23.56, 23.60, 23.67, 23.74, 23.103
Pt XXIII 23.68
s. 150 21.8
s. 395(1) 23.61
(2) 23.61, 23.67
(3) 2 3 . 6 7 s. 396
21.10, 21.10, 22.33
(1) 23.69
(2) 2 3 . 6
9 (b), (c)
23.69
(9) 23.69
s. 398 23.67
s. 399(1) 23.67
s. 400 21.10
s. 402 23.67
ss. 404–406 23.70
s. 407(1) 23.67
s. 410 23.71
s. 415(2)(a) 23.71
s. 691 9.50
s. 692 9.51
s. 694A 9.50
s. 695(1), (2) 9.50
s. 703L 23.68
(2) 23.68
s. 725 9.50
s. 726 14.36
Companies Act 1989 20.10, 21.1, 21.8, 21.10, 21.11, 23.60, 23.81, 23.104,
23.106, 23.113
s. 92 23.67, 23.68
ss. 93–104 23.67
s. 105 23.67, 23.68
s. 106 23.68
s. 106 23.67, 23.68
s. 107 23.67
Consular Relations Act 1968 12.114, 12.155
s. 16 12.114
Consumer Protection Act 1987—
ss. 6, 11A 11.28
Continental Shelf Act 1964—
s. 6, 7 9.27
Sch. 1 11.28
Contracts (Applicable Law) Act 1990 11.8, 12.56. 26.2, 26.3, 26.14, 26.35, 26.46,
26.53, 26.56, 26.85
s. 2(3) 26.54
Sch. 1
Art. 3(3) 26.14
7(1), (2) 26.14
10(1)(c) 26.44
Sch. 2 26.85
Sch. 3 26.88
Contracts (Rights of Third Parties) Act 1999 9.10, 9.87, 12.62, 23.1
s. 6 5.62
County Courts Act 1984—
ss. 26, 27 9.110, 10.85
County Courts Admiralty Jurisdiction Amendment Act 1869 —
s. 2 2. 178, 2. 199
Courts Act 2003—
Sch. 7 25.67
Courts and Legal Services Act 1990 —
s. 4 9.79
Crown Proceedings Act 1947 12.135, 12.141, 12.142, 12.144, 12.144, 12.146,
15.77
s. 2 12.136
ss. 5, 6 12.137
s. 7 12.137
(3) 12.142
s. 8(1) 12.141
ss. 10, 11 12.136
s. 29(1) 12.139, 15.77
(2) 12.139
s. 30(1) 11.23
s. 38(2) 12.137, 12.144
s. 40(1) 12.136
Crown Proceedings (Armed Forces) Act 1987 12.135
Customs and Excise Management Act 1979 —
s. 28(2) 2.134
ss. 49, 53 2.134
s. 66(2) 2.134
s. 67 2.134
s. 68(5) 2.133
s. 74 2.133
s. 76 2. 131
s. 78(4) 2.134
ss. 88-90, 141 2.133
s. 142 2.13 1, 2. 134
Dangerous Vessels Act 1985 24.171
s. 2 24.171
Diplomatic Privileges Act 1964 12.114
Diseases of Animals Act 1950—
s. 75(2) 2.105
Employers' Liability (Defective Equipment) Act 1969 2.167
Enterprise Act 2002 17.30, 17.32, 20.16
s. 15(1)–(5) 17.32
s. 128 17.32
s. 248(3) 17.30
Sch. 16 17.32
Sch. 17
Para. 22 20.15
European Communities Act 1972 1.33, 3.11
European Economic Area Act 1993 3.10
Evidence (Foreign, Dominion and Colonial Documents) Act 1933 26.46
Factors Act 1889 23.42
s. 2, 8, 9 23.42, 23.107
Fatal Accidents Act 1846 2.73, 2.74
Fatal Accidents Act 1976 2.74, 2.168, 2.169, 9.88, 11.28, 26.5, 26.12, 26.44
Financial Services Act 1986—
s. 188 7.11
Financial Services and Markets Act 2000 9.79
Food Safety Act 1990—
s. 8(2) 9.27
Foreign Judgments (Reciprocal Enforcement) Act 1933 1.38, 14.40, 24.143, 27.13,
27.26, 27.42, 27.56, 27.63, 27.67
s. 4(3)(b) 27.56
Foreign Limitation Periods Act 1984 9.41, 11.3, 11.6, 11.7, 13.51, 26.2, 26.3,
26.34, 27.55
s. 1 11.7
s. 2 11.7
(1), (2) 26.34
(3) 11.7, 26.34
s. 3 27.44
s. 4(3) 26.34
s. 7 11.7
Friendly Societies Act 1992 26.90
s. 101 26.90
Sch. 20 26.90
Harbour Act 1964—
s. 26 2.223
s. 57(1) 2.223
Harbours, Docks and Piers Clauses Act 1847 —
s. 44 2.223, 20.55
s. 47, 56 20.55
s. 74 2.115
Hotel Proprietors Act 1956—
s. 2 20.30
Housing Act 1988 18.31
Hovercraft Act 1968 18.30
s. 1 2.208
(1)(h) 2.1
s. 2 2.1, 2.208
(2) 2.46, 2.63, 18.30, 18.41
(3) 2.63, 12.140
Inferior Courts Judgments Extension Act 1882 27.10
Insolvency Act 1986 17.32, 18.113, 20.10
s. 11 20.19 s. 73 17.29 s.
112 15.49, 17.29, 20.17
s. 125 15.49
s. 126 15.49, 20.17
s. 127 17.30
s. 128 15.49, 17.30, 20.17
s. 130 15.49
(2) 17.30, 20.17
s. 183 15.49 s. 236
20.24 s. 238 17.30,
26.13
ss. 239–245 17.30
s. 246 17.30, 20.15
s. 247 17.30 s. 283
18.89 s. 285 15.48
(1)-(4) 17.34, 18.112
s. 346 15.48
(1) 17.34
Sch. B1 17.32
Para. 41(1) 17.32
(2) 20.16
Insolvency (No. 2) Act 1994 17.30
Insurance Companies Act 1982 26.90, 26.118
s. 94B 26.90
Sch. 3A 26.5, 26.90, 26.92
International Transport Conventions Act 1983 11 .12
s. 6 27.56
Interpretation Act 1968—
s. 17(2)(b) 23.24
Judgments Act 1838 25.37
Judicature Act 1873 1.15, 1.19, 2.19, 16.12
Judicature Acts 1875 1.19, 2.19, 16.12
Late Payments of Commercial Debts (Interest) Act 1998 25.37
s. 12 26.5, 26.13
Latent Damage Act 1986 11.15, 11.28
Law of Property Act 1925—
s. 136(1) 22.21, 23.94, 23.100
Law Reform (Limitation of Actions) Act 1954 —
s. 5(1), (2) 11.23
Law Reform (Miscellaneous Provisions) Act 1934 2.168, 25.38
Limitation Act 1939 11.14
Limitation Act 1980 9.41, 11.14, 11.17, 11.19. 11.22, 11.28, 11.36, 13.51
s. 2 11.28
s. 3 11.3, 11.28
ss. 5, 7–9 11.28
s. 10 11.28
(3), (4) 11.28
s. 11 11.15, 11.28
s. 12 11.14, 11.15, 11.28
s. 13 11.28
ss. 14, 14A 11.14, 11.28
s. 14B 11.14, 11.15
s. 15 11.8
s. 16 11.28
s. 17 11.3
ss. 20–23 11.28
s. 24 11.14, 11.48
(2) 11.48
s. 25 11.3
ss. 29–3 1 11.28, 11.29
s 32 11.28
(1) 11.29
s. 33 11.15, 11.30, 11.32
s. 34 13.54
s. 35 9.41, 11.7, 11.14, 11.32, 11.34
(1). (6) 11.32
s. 36(1) 11.31, 11.36
(2) 11.31
s. 39 9.41, 11.16
Limitation Amendment Act 1980—
s. 8 11.32
s. 9 11.14
(2) 11.28
s. 24(2 ) 11.48
Limitation of Liability Act 1976 3.8, 12.72
Marine Insurance Act 1906 2.235, 18.87, 20.3
s. 4 12.147
s. 53(2) 17.15, 20.27, 20.52, 23.110
s. 66(2) 2.235
s. 79 18.87
Marine Insurance (Gambling Policies) Act 1909 12.147
Marine Safety Act 2003 1.31
Merchant Shipping and Maritime and Shipping Security Act 1997 11.16
Sell. 3 12.137
Maritime Conventions Act 1911 2.69, 2.71. 2.75, 2.76, 11.16, 11.23, 11.24, 11.27,
19.4, 26.140
s. 1 26.140
ss. 2, 3 18.90
s. 5 2.74, 2.167, 2.168
s. 8 11.3, 11.16, 11.23
s. 9(4) 18.90
Merchant Seamen Act 1844—
s. 16 2.88, 18.8, 18.71
Merchant Shipping Act 1854 2.86, 18.8, 23.55, 24.1
s. 2 2.86
s. 191 2.88, 18.71
s. 458 2.59
Merchant Shipping Act 1889 18.8
s. 1 2.89
Merchant Shipping Act 1894 2.56, 2.86, 2.104, 2.170, 2.208, 23.20, 23.38
Pt IX 2.136
s. 3 23.24
s. 30 2.123, 2.244, 14.23
s. 55 2.244
s. 167(1) 2.88
(2) 2.89
s. 310(1) 18.43
s. 449(1) 2.134
s. 458 2.53
ss. 493–498 20.46
s. 503 26.22
s. 504 24.74, 26.22
s. 513(1), (2) 2.108
s. 523 2.137
s. 544 2.211, 2.2213, 18.37, 23.137
(21 2.52, 2.54
s. 545 2.213, 18.37
s. 546 2.49, 2.58, 2.60, 2.61, 2.62, 2.211, 2.213
ss. 552, 554 18.109
s. 556 2.208
s. 567(2) 2.104
s. 568(1) 2.106
s. 741 12.137, 12.144
s. 742 2.60, 2.61, 2.81
Merchant Shipping Act 1906—
s. 72 2.136
s. 80 12.138, 12.144
s. 7 2.78, 2.84
ss. 8–11 2.78
s. 12 2.78, 2.81
ss. 13–15 2.78
s. 16 2.48, 2.78, 2.81
s. 17 2.78
s. 18 2.78, 2.81, 2.88, 2.91
s. 43 2.86
s. 100(3) 2.88
Sch. 3
Para. 4 2.88
Merchant Shipping Act 1974 2.77, 2.153, 2.154. 3.35, 11.16, 24.31
s. 7 11.16
Merchant Shipping Act 1979 ...13.17, 15.123, 18.107, 23.172, 24.31, 24.79,
24.80, 24.81
s. 17 24.40
(4) 24.40
s. 18 24.40
s. 19 24.171
ss. 20, 20A 3.34
s. 37(1) 2.78
s. 47 26.139
s. 50(4) 12.148
Sch. 3 11.12
Sch. 4
Pt II
Para. 9 24.25
Sch. 5
Pt I 24.171
Para. 5 12.137
Merchant Shipping Act 1985—
Sch. 3A
Para. 16 1.31
Merchant Shipping Act 1988 2.49, 23.24
s. 30A 15.142
s. 46 2.78, 2.84
Sch. 1
Para. 32 2.244
Sch. 4
Pt II 3.35
Sch. 5
Para. 3 2.49
Merchant Shipping Act 1995 1.30, 1.31, 2.25, 2.26,
2.29, 2.33, 2.42, 2.44, 2.46, 2.127, 2.149,
2.170, 2.171, 2.207, 2.224, 2.227-2.230,
2.241, 2.244, 2.246, 3.8, 5.26, 11.16,
12.136, 12.138, 12.144, 12.150, 15.123,
18.30, 18.44, 23.20, 23.33, 23.47, 23.56,
23.61, 23.75, 23.82, 23.84, 23.90,
23.113, 23.155, 23.172, 24.3, 24.12,
24.41, 24.79, 24.146, 24.147, 26.143
Pt I (ss. 1–7) 23.7, 23.24, 26.167
s. 1 2.56
s. 2 2.132
s. 3 2.132
(2)-(5) 2.132
s. 4(3), (4) 2.132
Pt II (ss. 8–23) 23.7, 23.24, 23.55, 23.74
s. 15(1) 23.24 s. 16(1) 23.75 s. 17(7)
23.26, 23.47, 23.90, 26.5, 26.23
s. 19 3.8
Pt III (ss. 24–84) 23.24
s. 30 2.78, 2.88
(1) 2.84
ss. 3 1–33 2.78, 2.88
s. 34 2.78, 2.88
(1) 25.67
(3) 18.86
s. 35 2.78, 2.81, 2.88
s. 36 2.78, 2.88
s. 37 2.78, 2.88, 2.229
s. 38 2.78, 2.88
s. 39 2.48, 2.78, 2.81, 2.88, 18.58
s. 40 2.78, 2.88
s. 41 2.78, 2.81, 2.88, 2.91, 18.58
s. 45 2.81, 2.228
s. 47 2.87
s. 66(4) 27.56
s. 73 2.81, 2.228
ss. 74, 75 2.228
Pt IV (ss. 85–108) 23.24
s. 85 3.8, 26.140
(1) 26.139
s. 86 3.8, 26.140
s. 87(1) 2.134
ss. 89, 93 3.8
s. 95 15.142, 23.61
s. 97 23.61
Pt VI (ss. 128-182) 3.28, 3.35, 15.114, 18.90, 18.107, 24.31, 24.34, 24.137,
24. 145
s. 128 3.8, 3.34
(4), (6) 3.8
s. 129 3.8, 3.28
ss. 137–138A, 149 2.26
Pt VI Ch. III (ss. 152–171) 24.132
s. 153 2.151, 15.97
s. 154 2.151
s. 157 2.152
(2) 3.8
(3) 24. 136
s. 158 24.135
(8) 2.152
ss. 159, 160 24.140
s. 162 11.16
s. 165 2.152
(3) 24.136
s. 166 12.149
(2) 3.34
(4) 24.143
s. 167 12.137
s. 169 24.141
s. 170 3.34
Pt VI Ch. IV (ss. 172–182) 24.133
s. 175 2.153, 2.154, 12.149, 24.146
(1) 3.35
(2) 3.35
(a), (b) 3.35
(4)–(7) 2.54 (8)
2.54, 24.146
(10) 24.146
s. 176 2.153, 24.146
(3) 24.148
s. 177 2.153
(4) 27.56
s. 178 2.153, 11.16
ss. 179–182 2.153
s. 182B 2.157, 3.8, 3.19
s. 182C 3.8
Pt VII (ss. 183-192) 9.97, 12.148, 24.137, 24.139. 24.165, 24.171
s. 183 2.153, 11.16, 24.22
(1) 12.72
s. 184 3.21
s. 185 12.72
(1) 24.40
(2A)–(2C) 3.8, 24.43
(2D), (2E) 24.43
(3) 24.40
( 4 ) 24.41, 24.58, 24.60
(5) 24.43
s. 186 24.17, 24.27, 24.40
s. 187 26.140
s. 188 26.140
(1), (2) 18.90
s. 189 18.90
s. 190 9.41, 11.3, 11.16, 11.23
(6) 11.23
S. 191 24.171
s. 192 11.23, 12.137
Pt IX (ss. 224—255) 2.56, 2.136
Pt IX Ch. I (ss. 224-230) 18.86
s. 224 2.213, 11.16, 12.72, 23.9
s. 226(3) 18.109
s. 230 12.136, 12.141
s. 234(6) 2.108
s. 236 2.136
s. 239(1) 11.16
s. 241 2.137
s. 249(3) 2.104
s. 250(2) 2.106
s. 255 18.43
(1) 2.46, 2.136
s. 274 11.16
s. 275 11.16
s. 284 20.55
s. 307 26.139
s. 308 12.136, 12.137, 23.24
(2) 12.138
(3) 12.144
s. 309 23.24
s. 311 18.30
s. 313(1) 2.81, 2.86, 2.88, 2.170, 12.144, 18.30
Sch. 1 23.7
Para. 1 23.75
(1) 23.27, 23.84
(2) 23.28, 23.30
Para. 2 2.244, 23.27
(1)-(4) 23.31
Para. 3 23.27, 23.31
Para. 4 23.27, 23.31
(4) 2.132
Para. 5 23.27, 23.31
Para. 6 2.123, 2.244, 14.23, 23.27
Para. 7 23.27, 23.75
(2) 23.28
Para. 8 23.27, 23.82
(2) 23.82
Para. 9 23.27
Para. 10 23.27, 23.53
Para. 11-13 23.27
Sch. 3 3.8
Para. 1 2.132
Para. 5, (1), (4), (5) 2.132
Sch. 3A
Art. 38 12.150
Sch. 4 2.150
Sch. 5 24.146
Sch. 5A ... 2.157, 3.8, 3.19, 3.28, 3.34, 11.16, 24.27, 24.152, 27.56, 28.37
Sch. 6 3.20, 9.70, 11.12, 11.16, 18.30, 24.22
Sch. 7 3.8, 24.33, 26.5
Pt II
Para. 8(1) 3.8, 24.79
(2) 24.14
( 3 ) 2 4 . 5 0 Para. 9 18.124,
23.172, 24.25, 24.84
Para. 10 24.112
Sch. 8
Pt II
Para. 10 15.33
Sch. 11 2.44, 11.16, 11.27, 18.37, 18.115, 23.9
Para. 1 2.62
Para. 2 2.50, 2.62
Para. 5 2.56, 23.137
Sch. 13
Para. 59 2.77, 2.149
(2) 2.213
Para. 74 24.17 1
Merchant Shipping and Maritime Security Act 1997 2.157, 3.8, 3.9, 24.135
s. 3 2.26
s. 14 2.157, 3.8
(2) 24.152, 28.10
s. 15(1) 24.43
s. 24 2.46, 2.136, 3.8
s. 26(1) 2.135
Sch. 3 2.157, 3.8, 24.152, 28.10
Sch. 5 2.135
Merchant Shipping (Liability of Shipowners and Others) Act 1900 —
s. 2 24.171
Merchant Shipping (Liability of Shipowners and Others) Act 1958 15.121, 15.123,
24.34
s. 5 15.122
Merchant Shipping (Oil Pollution) Act 1971 2.77, 2.150, 2.154, 11.16, 24.31,
24.34, 24.138
s. 9 11.16
s. 13(4) 3.34
s. 14 12.137
Merchant Shipping (Registration etc) Act 1993 15.142, 23.20, 23.24, 23.33, 23.55,
23.38, 23.74
s. 7(7) 23.90
s. 87(3) 2.134
Sch. 1
Para. 6 2.123, 14.23
Sch. 2
Para. 3 12.138
Sch. 4
Pt IX 2.136
Para. 11(2)(a) 2.134
Sch. 5 18.109
Merchant Shipping (Salvage and Pollution) Act 1994 2.44, 2.56, 2.62, 2.150,
2.171, 2.207, 11.16, 12.135, 18.37, 19.33, 23.137, 26.160
s. 1(6) 2.62, 2.207, 23.9
s. 4 3.35
Sch. 1
Pt II
Para. 2 2.62
Sch. 2 23.9
Para. 1 2.62
(2) 2.2 13, 19.3
Para. 3 12.141, 15.77
Para. 4 2.207
Para. 6 2.207, 19.1
(3) 2.212, 2.213
Para. 7 2.207
Merchant Shipping (Stevedores and Trimmers) Act 1911 19.4
Nuclear Installations Act 1965 2.163, 2.164, 3.28, 9.79, 12.148
s. 13 3.34
s. 14 2.63, 12.148
s. 17 3.38
(4) 27.56
Oath and Evidence (Overseas Authorities and Countries) Act 1963 —
s. 5 26.46
Occupiers’ Liability Act 1957 2.169
Petroleum Act 1998—
s. 11 9.27
s. 13 7.11
Pilotage Act 19 13—
s. 15(1) 18.55
Pilotage Act 1983—
s. 35 18.55
Pilotage Act 1987 18.55
s.10(9) 2.217
s. 22(1), (2) 24.164
(3) 24.164, 24.165
(4) 2 4 . 1 6 5 (6)
24.167 Piracy Act
1850—
s. 5 2.135
Post Office Act 1969—
s. 6(5) 12.142
ss. 29, 30 12.142
Prevention of Oil Pollution 197 1—
s. 24 12.137, 12.144
Private International Law (Miscellaneous Provisions) Act 1995 26.2, 26.3, 26.34,
26.119, 26.133, 26.137, 26.138
s. 1 25.37
s. 9(2) 26.4, 26.51
s. 11 26.133, 26.134
s. 12 26.30, 26.44, 26.133, 26.134
s. 14(2) 26.134
(3) 26.9, 26.134
(b) 26.32, 26.44
(4) 26.136
Protection of Trading Interests Act 1980 7.11, 25.26, 26.9, 27.35, 27.54, 27.57
s. 1 25.26
s. 2 25.26
(2), (3) 25.26
s. 3(2) 25.26
s. 4 25.26
s. 5(1) 27.55, 27.58
(2) 27.58
(c) 27.58
(4), (5) 27.58
s. 7 27.56
Protection of Wrecks Act 1973 2.46, 2.136
Railways and Transport Safety Act 2003 —
s. 112 3.8, 18.30
(2) 18.30
Responsibility of Shipowners Act 1733 24.1
Sale of Goods Act 1979 10.47, 17.15, 20.39, 21.12, 23.18, 23.42, 23.114, 25.42
ss. 21, 23 23.42
ss. 24, 25 22.1, 22.3, 23.7, 23.42, 23.107
s. 39 20.4, 20.39
s. 41 21.12, 23.110
s. 47 23.7, 23.114
s. 48 20.4, 20.39, 23.114
s. 52 25.42
Sale of Goods (Amendment) Act 1995 23.18
Shipping and Trading Interests (Protection) Act 1995 25.26, 26.9
Shipping Contracts and Commercial Documents Act 1964—
s. 8(4) 25.26
Social Security (Consequential Provisions) Act 1992 —
Sch. 2 7.10
Solicitors Act 1974 20.24, 20.39
s. 73 23.110, 23.111
State Immunity Act 1978 12.114, 12.117, 15.76, 27.60, 27.61
s. 1(1) 12.117
s. 2 12.117, 12.120
(4), (5) 12.120
s. 3 12.117, 122
(2) 12. 122
(3) 12.122, 12.131
s. 4 12.117, 12.123
(2), (4) 12.123
s. 5 12.117, 12.124
s. 6 12.117, 12.125
s. 7 12.117, 12.126
s. 8 12.117, 12.127
s. 9 12.117, 12.121
s. 10 12.117, 12.131
(1), (2) 12.131
(3) 12.131, 12.146
(4) 12.131
(5) 12.131, 12.146
(6) 12.133
s. 11 12.117, 12.128
s. 12 12.131
(7) 12.131
s. 13 12.119
(2) 15.76
(4) 12.119, 12.131, 15.76
(5) 12.119
s. 14 12.118
s. 15 12.117
s. 17(1) 12.13 1
s. 18, 19 27.60
Statute Law (Repeals) Act 1993—
Sch. 1
Pt XV
Group 6 20.46
Supreme Court Act 1981 0.27, 0.33, 1.1, 1.2, 1.3, 1.14, 1.15, 1.31, 1.50, 2.1,2.19,
2.21, 2.22, 2.30, 2.34, 2.72, 2.81, 2.87, 2.96, 2.101, 2.121, 2.141, 2.169, 2.174, 2.240,
3.30, 10.1, 10.48, 10.54, 10.61, 12.142, 12.144, 12.145, 12.146, 12.148, 13.50, 14.12,
14.29, 14.58, 14.59, 15.14. 15.41, 15.42, 15.45, 15.52, 15.55, 15.65, 15.77, 15.143,
18.28, 18.30, 18.31, 19.6,23.16, 23.50, 23.105, 23.127, 24.88
s. 5 1.25
s. 6(i)(b) 1.1
s. 13 13.44
s. 18(1) 13.50
s. 20 1.1, 1.3, 1.4, 1.5, 2.3, 2.6, 2.11, 2.28, 2.35, 2.40, 2.226, 2.236.3.28, 9.7,9.9,
12.140. 12-155, 15.14, 19.1, 19.35,23.156, 26.24, 26.169
(1) 2.3, 2.40
(a) 2.4
s.20(l)(b) 2.5, 2.26, 2.224, 2.227, 2.228, 2.229, 2.244, 2. 246
(c) 2.7, 2.13, 20.14, 2.87, 2.139, 2.243, 10.5, 10.60, 17.49, 19.1, 19.22, 19.28,
19.31, 19.32, 19.33, 19.38
(d) 2.1, 2.7, 2.25, 2.26, 2.149, 2.230, 19.1. 19.28, 19.31, 19.38
(e) 2.241, 10.31
(f) 2.25, 10.31
(g)–(i) 10.31
(j) 2.2 12, 10.31
(k)–(r) 10.31
(2) 1.12, 2.3, 2.4, 2.56, 2.138, 2.139, 2.173, 2.175, 2.227, 2.242, 10.3
(a) 1.11, 2.122, 10.28, 10.57, 10.60, 17.46, 17.48, 19.1, 19.6, 19.16, 19.17, 19.38
(b) 1.11, 2.124, 2.224, 19.28, 10.57, 10.60, 17.46, 17.48, 19.1, 19.6, 19.16, 19.17,
19.38
(c) 1.11, 2.127, 10.28, 10.57, 10.60, 17.46, 17.48, 19.1, 19.6, 19.16, 19.17, 19.38,
21.7
(d) 1.12, 2.138, 2.241, 10.3, 19.38
(e) 1.11, 2.138, 2.145, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60, 17.50, 18.51, 19.1,
19.6, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(f) 1.11, 2.66, 2.138, 2.166, 2.167, 2.245, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60,
17.50, 18.51, 19.1, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(g) 1.11, 2.138, 2.171, 2.178, 2.180, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60,
17.49, 18.51, 19.1, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(h) 1.11, 2.138, 2.178, 2.180, 2.181, 2.194, 10.3, 10.20, 10.24, 10.31, 10.57,
10.60, 17.49, 18.51, 18.118, 19.1, 19.10. 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(i) 1.11, 2.138, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60, 17.49, 18.51, 19.1, 19.10,
19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(j) 1.11, 2.1, 2.138, 2.207, 2.208, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60, 17.49,
18.51, 19.1, 19.6, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(k) 1.11, 2.1, 2.138, 2.216, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60, 17.49, 18.51,
19.1, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(l) 1.11, 2.1, 2.138, 2.217, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60, 17.49, 18.51,
19.1, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(m) 1.11, 2.138, 2.217, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60, 17.49, 18.51,
19.1, 19.6, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
s. 20(2)(n) 1.11, 2.138, 2.223, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60, 17.49,
18.51, 19.1, 19.6, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(o) 1.11, 2.81, 2.138, 2.224, 2.226, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60, 1 7.49,
18.51, 18.71, 19.1, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38, 26.5
(p) 1.11, 2138, 2.218, 2.231, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60,17.49, 18.51,
19.1, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(q) 1.11, 2.138, 2.235, 2.237, 2.238, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60,
17.49, 18.51, 19.1, 19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38
(r) 1.11, 2.138, 2.239, 10.3, 10.20, 10.24, 10.31, 10.57, 10.60, 17.49, 18.51, 19.1,
19.10, 19.15, 19.16, 19.17, 19.21, 19.29, 19.38, 23.99
(s) 1.11, 2.131, 2.134, 10.28, 10.57, 10.60, 17.48, 19.1, 19.6, 19.16, 19.17
(3) 2.3, 2.5, 2.56, 2.2 12, 2.227, 2.241, 2.244
(a) 2.224, 2.227, 2.229, 2.244
(b) 2 . 2 4 5
(c) 2.246, 9.97, 24.82
(l) 2.123
(4) 2.3, 2.4, 2.56, 2.124, 19.24
(5) 2.3, 2.4, 2.26, 2.28, 2.56, 2.149, 19.6
(a) 2.77
(b) 2.77
(6) 2.3, 2.4, 2.52, 2.56, 2.57, 2.58, 2.1207, 2.208, 2.2 13
(a) 2.213
(7) 2.9, 2.224, 2.227, 23.127
(b) 2.208
21.7
(c) 2.127, 21.7, 26.23
s. 21 1.1, 1.3, 1.6, 1.11, 2.14, 2.139, 2.221, 2.224, 10.3, 12.140, 12.155, 23.133,
26.24, 26.169
(1) 1.9, 9.1, 10.2, 23.156
(a)-(c) 10.19
(e)-(r) 10.19
(s) 10.19
(2) 2.31, 10.1, 10.2, 10.17, 10.19, 10.20, 10.25, 10.27, 21.60, 17.46, 19.31, 19.34,
19.35, 21.7, 23.105
(c) 23.130
(3) 1.3, 1.5, 2.3, 2.6, 2.31, 2.34, 2.87, 2.215, 2.226, 10.1, 10.17, 10.19, 10.22,
10.25, 10.60, 17.46, 17.47, 19.6
(4) 2.31, 2.138, 2.139, 2.173-2.175, 2.192, 2.200, 2.222, 2.238, 2.239, 10.1, 10.2,
10.19, 10.20, 10.21, 10.24, 10.39, 10.54, 10.60, 15.55, 15.97, 17.46, 17.50, 18.1,
18.30, 19.6, 19.32, 19.23, 23.156
(a) 2.173, 2.176
(b) 19.23
(6 ) 2 5. 5 5
(7 ) 1 9. 3 8
(c) 23.130
s. 21(8) 10.21, 10.24, 10.42, 10.60, 10.68, 15.43, 15.55, 15.75, 18.1, 19.10
s. 22 1.1, 1.3, 2.224, 3.28, 3.31, 3.32, 9.70, 9.97, 12.140, 12.155, 15.26, 24.87
(2)–(4) 2.240
(5) 2.240, 24.94
(6), (7) 2.240
s. 23 1.1. 1.3, 2.224, 3.28. 3.37, 12.140, 12.153, 12.155
s. 24 1.1, 1.3, 12.140
(1) 2.215, 2.217, 2.225
(2) 15.77
(a) 2.224, 12.155, 18.30
(c) 12.140
s. 33 14.15
(1) 14.25
s. 34 14.15, 16.11A
s. 35 14.15, 14.25
s. 35A 25.38
(2 ) 2 5. 3 8
(3 ) 25.38, 25.39
s. 37 14.16, 14.26. 14.54, 16.10. 25.17
(1) 14.18, 16.7, 25.67
(3) 14.27, 16.1, 16.7, 16.15
s. 40 25.67
s. 49 16.12, 25.28
(3) 4.48, 12.54
s. 51 9.79
s. 72 14.16
s. 137 14.1
(1) 14.4
s. 152(i) 2.208
Sch. 5 2.1, 2.208
Supreme Court of Judicature Act 1873 14.12
Supreme Court or Judicature (Consolidation) Act 1925 0.24, 2.72, 2.127, 14.12,
19.4, 25.61
s. 22 2.167, 2.168, 2.232
(1) 2.218
(a)(i) 2.122
(iii), (iv) 2.68
(vii) 2.87, 2.127
(xii) 2.174, 2.178
(2)(i), (Vii), (x) 2.128
s. 43 25.28 s. 45 14.26
Telecommunications Act 1984—
s. 107 9.27
Territorial Sea Act 1987 9.27
Third Party (Rights against Insurers) Act 1930 18.89
Torts (Interference with Goods) Act 1977 —
s. 4 14.30
s. 12, 13 20.2
Trade Union and Labour Relations (Consolidation) Act 1992 —
s. 219(1) 12.147
s. 221(2) 14.21
Unfair Contract Terms Act 1977—
s. 27 26.5
Wrecks and Salvage Act 1846—
s. 19 2.59
AUSTRALIA
Sea Carriage of Goods Act 1924—
Trade Practices Act—
CANADA
Marine Liability Act—
FINLAND
Code of Civil Procedure—
FRANCE
Civil Code—
s. 9 12.72
s. 81(1A) 27.58
AUSTRIA
Law of Court Jurisdiction—
Art. 99 5.6
BELGIUM
Civil Code—
Art. 14 5.6
s. 46 12.72
Chap. 10
section 1 5.6
Arts. 14, 15 5.6
GERMANY
Art. 23 5.6
GREECE
Code of Civil Procedures—
Art. 40 5.6
IRELAND
Jurisdiction of Courts (Maritime Conventions) Act 1989 15.40
ITALY
Act 218 of 31 May 1995—
Arts. 3, 4 5.7
Code of Civil Procedure 5.7
Art. 14 5.6
LUXEMBOURG
Civil Code—
Arts. 14, 15 5.6
NETHERLANDS
Art. 14 5.6
PORTUGAL
Art. 165 5.6
SOUTH AFRICA
Admiralty Jurisdiction Regulation Act 1983 —
s. 5(3) 15.89
SWEDEN
Code of Judicial Procedure—
Chap. 10, section 3 5.6
UNITED STATES
Federal Arbitration Act .. 15.89
Limitation of Liability Act 24.118
Table of Statutory Instruments
Arbitration (Foreign Awards) Order 1984 (S.I. No. 1168) 27.64
Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987
(S.I. No. 670) 3.20
Carriage of Passengers and their Luggage by Sea (United Kingdom Carriers) Order
1998 (S.I. No. 2917) 3.20
Sch. 6
Para. 4 24/2 1
Civil Courts (Amendment) (No. 2) Order 1999 (S.I. No. 1011) 1.3, 2.178, 9.110,
10.85
Civil Courts Order 1983 (S.I. No. 713) 9.10, 10.85
Civil Jurisdiction and Judgments (Authentic Instruments and Court Settlements)
Order 1993 (S.I. No. 604) 28.10, 28.11
Civil Jurisdiction and Judgments (Authentic Instruments and Court Settlements)
Order 2001 (S.I. No. 3928) 1.45, 28.10
Civil Jurisdiction and Judgments Act 1982 (Amendment) Order 2000 (S.I. No.
1824) 1.44, 1.47, 3.47
Civil Jurisdiction and Judgments Act 1982 (Gibraltar) Order 1997 (S.I. No. 2602)
4.21, 14.60, 27.25
Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (S.I. No.
302) 9.79. 9.92, 14.46A, 16.1, 16.11A
Civil Jurisdiction and Judgments Act 1982 (Provisional and Protective Measures)
(Scotland) Order 1997 (S.I. No. 2780) 9.91, 14.46A, 16.1
Civil Jurisdiction and Judgments Order 2001 (S.I. No. 3929) 0.30, 1.45, 1.47,
4.18, 7.2, 7.6, 9.68, 9.91, 14.46A, 28.10
Arts. 3–5 7.6
Art. 6 5.106, 7.6
Art. 7 4.20, 5.106
Art. 9 4.18, 5.96
Art. 10 5.24, 5.106, 5.107
Art. 11 4.19, 5.96
Art. 12 4.19, 5.110
Art. 16 5.106
Sch. 1
Para. 3 4.20
Paras. 7, 9–12 7.5
Sch. 2
Para. 3 7.5
Para. 9 14.12
Para. 10(a) 14.46A
Civil Jurisdiction (Offshore Activities) Order 1987 (S.I. No. 2197) 9.27
Civil Procedure (Amendment No. 5) Rules 2001 (S.I. No. 4015) 0.6
Civil Procedure (Modification of Enactments) Order 1998 (S.I. No. 2940) 14.15,
25.37
Civil Procedure Rules 1998 (S.I. No. 1860) 0.14, 0.33, 1.6, 2.8, 2.215, 2.244, 3.2,
7.9, 9.2, 9.17, 11.1,11.32, 11.40, 12.34, 12.92, 13.58, 14.12, 14.15, 14.30, 14.31,
14.36, 14.38, 16.30, 16.35, 18.103, 18.118, 24.46, 24.48, 24.79, 24.172
r. 1.2(b) 0.16
r. 2.3 9.27
r. 2.3.1 9.40
r. 2.8 9.22
r. 2.11 9.39, 11.4
r. 3.1 11.32
(2) 14.41
(a) 11.4
(3) 1 8 . 1 0 8 (5)
14.24 r. 3.3 11.40, 14.4,
14.41
r. 3.4 10.67, 11.40, 12.157
(2)(b) 11.43
(c) 11.2
r. 3.5 12.157, 14.4, 14.41
r. 3.6A 11.40, 14.4, 14.41
r. 3.8(3) 11.4
r. 3.10 9.59, 9.102
Part 4 9.21
Part 6 9.5, 9.17, 9.79
r. 6.2 9.22, 9.50, 13.41
(1) 9.82
r. 6.4 9.43
(1) 9.43
r. 6.5 9.22, 9.43. 9.50
(1) 10.73 r. 6.6
9.99 r. 6.7 9.22,
9.43
(1) 9.22
r. 6.8 9.22, 9.43, 9.102, 10.73
r. 6.9 9.26, 9.102, 9.107
r. 6.10.1 9.64
r. 6.14 9.43
r. 6.14.2 9.26
r. 6.15 9.22
r. 6.16 9.42, 9.44
r. 6.19 9.68, 9.79, 14.52, 14.71
(1) 7.9, 9.70, 13.23
(1A) 13.23
(2) 3.32, 9.68
(3) 9.69
r. 6.20 9.19, 9.68, 9.72, 9.79
(2) 9.89, 9.92, 16.11A
(3) 9.86
(4) 9.92, 14.9, 14.52, 16.11A
(5) 9.87
(c) 26.16, 26.18
(6), (7) 9.87
(8)(a) 9.88
(9) 13.23, 25.8
(10) 7.22
r. 6.21 9.75
(1) 9.75
(2A) 9.74
(4) 9.73
r. 6.22 9.99
r. 6.23, 6.25 9.10 1
r. 6.26A 9.101, 9.103
r. 6.27 9.101
r. 6.28, 6.29 9.103
7.1–7.4 9.99
8.1 9.99
14 9.69
51 9.72
r. 7.5 9.27
r. 7.6 9.27, 9.32, 10.69
(4) 9.32
r. 7.7 9.26
(3). 9.26
Part 8 9.21, 9.52, 14.48
r. 8.2A 9.21 r.
8.3 9.52 r.
10.1 5.34 (3)
9.52, 10.77
r. 10.2(2) 9.52
Pt 11 5.34, 9.55, 9.73, 11.40, 12.53
r. 11.1–4 9.55
r. 11.5 9.56, 9.105
r. 11.6 15.81, 15.82
r. 11.7 9.55
r. 11.8 9.56
r. 11.9 9.55
r. 11.15 9.52
Pt 12 9.52
r. 12.2 9.54
(b). 9.52
r. 12.3(3) 9.54
r. 15.2 9.44
r. 15.3 9.54
Pt 16 11.3
PD16 11.3
r. 16.8 9.21
Pt 17 11.32 r.
17.1 9.40 r. 17.2
9.40, 11.33
r. 17.3 11.33
r. 17.4 9.41, 11.32, 11.34
(2) 0.16
Part 19 9.40, 10.80, 11.32, 12.142
r. 19.210.80
r. 19.4 9.41, 11.32, 11.34
(2), (3) 11.32
r. 19.5 9.41
Part 20 9.27, 9.86
r. 20.2 9.40
r. 21(1)(i), (j) 14.9
Part 23 9.55, 9.73, 11.40, 14.36, 14.48, 25.57
r. 23.9 14.32, 16.9
r. 23.10 14.32, 16.9
r. 23.15 14.36
Pt 24 10.77A
r. 24.3 10.67
(2)(b) 9.54
r. 24.4 9.54
Part 25 14.3, 16.3, 16.24, 16.29, 16.35, 16.36
r. 25.1 9.109, 25.67
(1)(a) 14.18
(b) 14.18, 14.21, 25.49
(c)(i) 14.24
(v) 25.54
(e) 14.30
(f)14.27, 16.9, 25.67
(g) 14.27, 16.3, 16.9, 16.51
(j) 16.11A, 16.52
(k) 1 4 . 2 9
(l) 14.25
r. 25.2 14.5, 16.9
(1) 14.84
(2) 16.9
r. 25.3 16.9
(1) 14.32
r. 25.4 14.9
r. 25.6–25.9 14.30
r. 25.11 14.4, 14.35
r. 25.13 14.36, 14.81
r. 25.18(1) 28.7
r. 30.5(3) 9.7
Part 31 16.49
Part 32 16.49
Part 41 14.30
Part 49 2.25, 2.127, 9.61
Part 58 9.6
r. 58.6 9.52
Part 61 0.6, 1.1, 2.28, 3.2, 9.6, 9.21, 9.65, 10.78, 14.4
r. 61.1 2.215, 9.26
r. 61.2 2.25, 2.31, 2.2 15, 9.7
(b ) 2 . 2 4 5
(c ) 2. 247
(3) 9.7
r. 61.2(1) 10.1
r. 61.2(1)(i) 2.127,
(iii) 2.122, 2.127
(iv) 2.149. 2.230. 2.244
r. 61.3 9.52, 10.61
(3) 9.6, 10.72
(4) 9.63, 10.77
(5) 10.68
(6) 5.34, 9.63, 10.75
r. 61.4 9.9
(2) 9.21, 10.72
(3) 9.52
(5) 9.21
(7) 2.240, 9.68, 9.96
r. 61.4.11 3.4
r. 61.5 10.61, 14.85
(1) 18.117
(b) 14.84, 15.67, 25.68
(3) 14.31, 15.56, 15.79
(4) 14.31, 15.79, 15.98
(5) 2.224, 14.31, 15.56, 15.78, 15.98
(6) 14.31, 15.56, 15.98
(8) 14.31
(9) 15.105
(10) 10.75, 15.139, 15.140
r. 61.6 15.140
r. 61.7 9.72, 10.78, 10.80
( 4 ) 1 5 . 70
(5) 1 5 . 7 0
(b) 15.117 r.
61.8(1) 15.106
(4) 15.118
(5) 15.113
(7) 15.114
(8), (9) 15.54, 25.55
(10) 25.55
r. 61.9 10.77A
(2) 9.21
(5) 10.77A
r. 61.10 10.78, 14.17, 15.126, 25.55
(2). 25.55
r. 61.11 9.52, 9.72, 24.80, 24.82
(2), (3) 24.82
(4) 24.82
( 5 ) 9.68, 9.96, 24.87, 24.88
( 6 ) 9.52, 24.83
( 7 ) 2 4 . 83
( 8 ) 2 4 . 83
(9), (10) 24.93
(13), (14) 24.93
(15) 24.84
(18), (19) 24.93
r. 61.12 12.87, 15.62
r. 61.21(2A) 9.96
Part 62 13.47, 14.4, 25.46
r. 62.5 9.68, 9.72, 9.98, 9.103, 13.23, 16.11A
r. 62.10 13.1
r. 62.16 9.68, 9.72, 9.73, 9.98, 13.23, 25.8
r. 62.18 25.69
r. 62.20 25.69
r. 62.21 27.63
r. 62.58 9.98
Part 74 28.87
r. 74.1 27.52, 27.54
r. 74.11(3) 27.52
(5) 27.54
r. 74.15 27.16
r. 74.16 27.16
(2), (4) 27.23
Sch. 1 10.44, 25.67, 25.68
Collision Regulations and Distress Signals Order 1977 (S.I. No. 682) 26.142
Consular Relations (Merchant Shipping) (Union of Soviet Socialist Republics)
(Revocation) Order 1999 (S.I. No. 1124) 12.155
Contracts (Applicable Law) Act 1990 (Amendment) Order 19 94 (S.I. No. 1900)
26.3, 26.85
Contracts (Applicable Law) Act 1990 (Amendment) Order 2000 (S.I. No. 1825)
26.3, 26.53, 26.85
County Court Remedies Regulations 1991 (S.I. No. 1222) —
Reg. 3(2) 16.1
County Court Rules 1981 (S.I. No. 1687) 9.2
Enterprise Act 2002 (Commencement No. 4 and Transitional Provisions and
Savings) Order 2003 ((S.I. No.2093) 17.32
European Economic Interest Grouping Regulations 1989 (S.I. No. 638) 23.24
Extraterritorial US Legislation (Sanctions against Cuba, Iran and Libya)
(Protection of Trading Interests) Order 1996 (S.I. No. 3171) 27.58
Financial Services and Markets Act 2000 (Law Applicable to Contracts of
Insurance) Regulations 2001 (S.I. No. 2635) 26.5, 26.90, 26.118
Fishing vessels (Life-Saving Appliances) (Amendment) Regulations 1998 (S.I. No.
927) 3.12
Friendly Societies (Amendment) Regulations 1993 (S.I. No. 2519) 26.90
Hovercraft (Application of Enactments) Order 1972 (S.I. No. 971) 2.1
Art. 8 2.46, 2.208
Hovercraft (Civil Liability) (Amendment) Order 1987 (S.I. No. 1835) 24.17,
24.35
Hovercraft (Civil Liability) Order 1986 (S.I. No. 1305) 24.17, 24.35
Art. 8 24.33
Hovercraft (Convention on Limitation of Liability for Maritime Claims)
(Amendment) Order 1998 (S.I. No. 1257) 24.33
Insurance Companies (Amendment) Regula tions 1990 (S.I. No. 1333) 26.90
Insurance Companies (Amendment) Regulations 1993 (S.I. No. 174) 26.90
Insurance Companies (Third Insurance Directives) Regulations 1994 (S.I. No.
1696) 26.90
Judgment Debts (Rate of Interest) Order 1993 (S.I. No. 564) 25.37
Late Payment of Commercial Debts (Rate of Interest) (No. 3) Order 2002 (S.I. No.
1675) 25.37
Late Payment of Commercial Debts Regulations 2002 (S.I. No. 1674) 25.37
Limited Liability Partnerships Regulations 2001 (S.I. No. 1090) 17.32
Merchant Shipping Act 1979 (Overseas Territories) (Amendment) Order 1993
(S.I. No. 1786) 26.139
Merchant Shipping Act 1979 (Overseas Territories) Order 1989 (S.I. No. 2400)
26. 139
Merchant Shipping (Additional Safety Measures for Bulk Carriers) Regulations
1999 (S.I. No. 1644) 3.8
Merchant Shipping and Maritime Security Act 1997 (Commencement No. 2) Order
(S.I. No. 1539) 24.152
Merchant Shipping (Cargo Ship Construction) Regulations 1997 (S.I. No. 1509)
3.8
Merchant Shipping (Carriage of Cargoes) Regulations 1999 (S.I. No. 336) 3.8
Merchant Shipping (Control of Pollution) (SOLAS) Order 1998 (S.I. No. 1500)
3.8
Art. 2 3.8
Merchant Shipping (Convention on Limitation of Liability for Maritime Claims)
(Amendment) Order 1998 (S.I. No. 1258) 3.8, 24.33, 24.43, 24.69
Merchant Shipping (Convention on Limitation of Liability for Maritime Claims)
(Amendment) Order 2004 (S.I. No. 1273) 3.8, 24.33, 24.43, 24.69
Art. 2 3.8
Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk)
(Amendment) Regulations 1998 (S.I. No. 1153) 20.55
Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk)
(Amendment) Regulations 2004 (S.I. No. 930) 20.55
Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk) Regulations
1996 (S.I. No. 3010) 20.55
Merchant Shipping (Distress Messages) Regulations 1998 (S.I. No. 1691) 3.8
Merchant Shipping (Distress Signals and Prevention of Collision) Regulations (S.I.
No. 75) 26.139, 26.140
Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations
1997 (S.I. No. 2962) 3.10
Merchant Shipping and Fishing Vessels (Manual Handling Operations) Regulations
1998 (S.I. No. 2857) 3.12
Merchant Shipping and Fishing Vessels (Personal Protective Equipment)
Regulations 1999 (S.I. No. 2205) 3.10, 3.12
Merchant Shipping (Gas Carriers) Regulations (S.I. No. 2464) 20.55
Merchant Shipping (High Speed Craft) Regulations 1995 (S.I. No. 3188) 20.55
Merchant Shipping (High Speed Craft) Regulations 2004 (S.I. No. 302) 3.8,
26. 139
Merchant Shipping (Hours of Work) Amendment Regulations 2004 (S.I. No. 1469)
1.34
Merchant Shipping (Liability and Compensation for Oil Pollution Damag e)

(Transitional Provisions) Order 1996 (S.I. No. 1143) 2.150, 2.153
Merchant Shipping (Liability of Shipowners and Others) (New Rate of Interest)
Order 2004 (S.I. No. 931) 3.8
Merchant Shipping (Liability of Shipowners and Others) (Rate of Interest) Order
1999 (S.I. No. 1922) 3.8, 24.79
Merchant Shipping (Liability and Compensation for Oil Pollution Damage)
(Transitional Provisions) (Revocation) Order 1997 (S.I. No. 2566) 2.150, 2.153
Merchant Shipping (Life-Saving Appliances for Ships Other than Ships of Classes
III to VI(A)) Regulations 1999 (S.I. No. 2721) 3.8
Merchant Shipping (Load Line) Regulations 1998 (S.I. No. 2241) 3.8, 3.10, 20.55
Merchant Shipping (Minimum Standards of Safety Commun ications) (Amendment)
Regulations 1999 (S.I. No. 1704) 3.8
Merchant Shipping (Minimum Standards of Safety Communications) Regulations
1997 (S.I. No. 529) 3.8, 3.10
Merchant Shipping (MOD Commercially Managed Ships) Order 1992 (S.I. No.
1293) 12.138
Merchant Shipping (MOD Yachts) Order 1992 (S.I. No. 1294) 12.138
Merchant Shipping (Oil Pollution Compensation Limits) Order2003 (S.I. No.
2559) 2.152. 24.135
Merchant Shipping (Oil Pollution Preparedness, Response and Cooperation
Convention) Order 1997 (S.I. No. 2567) 3.8
Merchant Shipping (Oil Pollution Preparedness, Response and Co -operation
Convention) Regulations 1998 (S.I. No. 1056) 3.8
Merchant Shipping (Passenger Ships on Domestic Voyages) (Amendment)
Merchant Shipping (Passenger Ships on Domestic Voyages) Regulations 2000 (S.I.
No. 2687) 1.34
Merchant Shipping (Prevention of Oil Pollution) Order 1983 (S.I. No. 1106) 3.34
Merchant Shipping (Prevention of Oil Pollution) Regulations 1996 (S.I. No. 2154)
3.39
Merchant Shipping (Prevention of Pollution) (Amendment) Regulations 2004 (S.I.
No. 303) 3.8
Merchant Shipping (Prevention of Pollution) (Drilling Rigs and Other Platforms)
Regulations 2005 (S.I. No. 74) 3.34, 18.30
Merchant Shipping (Prevention of Pollution) (Law of the Sea Convention) Order
1996 (S.I. No. 282) 3.8, 3.28
Merchant Shipping (Prevention of Pollution) Regulations 1996 (S.I. No. 2154) 3.8
Merchant Shipping (Prevention of Pollution) (Drilling Rigs and Other Platforms)
Merchant Shipping (Registration of Ships) (Amendment) Regulations 1998 (S.I.
No. 2976) 23.24
Merchant Shipping (Registration of Ships) (Amendment) Regulations 1994 (S.I.
No. 541) 23.24
Merchant Shipping (Registration of Ships) Regulations 1993 (S.I, No. 3138)
Merchant Shipping (Liability and Compensation for Oil Pollution Damage)

(Transitional Provisions) Order 1996 (S.I. No. 1143) 2.150, 2.153
23.24, 23.74, 23.75, 23.82, 23.156
Merchant Shipping (Registration of Ships) (Tonnage Amendment) Regulations
1998 (S.I. No. 1915) 3.12
Merchant Shipping (Ro Ro Passenger Ships) (Stability) Regulations 2004 (S.I. No.
2884) 20.55
Merchant Shipping (Survey and Certification) Regulations 1995 (S.I. No. 1210)
3.8, 20.55
Merchant Shipping (Tonnage) (Fishing Vessels) (Amendment) Regulations 1998
(S.I. No. 1916) 3.12
Merchant Shipping (Registration of Ships, and Tonnage) (Amendment) Regulation s
(S.I. No. 3206) 23.24
Merchant Shipping (Registration of Ships) (Tonnage Amendment) Regulations
1998 (S.I. No. 1915) 23.24
Merchant Shipping (Tonnage) Regulations 1997 (S.I. No. 1510) 3.8, 24.35
Merchant Shipping (Updating of References to Maritime Conve ntions) Regulations
2004 (S.I. No. 1266) 3.8, 3.12
Merchant Shipping (Vessel Traffic Monitoring and Reporting Requirements)
Merchant Shipping (Vessels in Commercial use for Sport or Pleasure) Regulations
1998 (S.I. No. 2771) 20.55
Offshore Installations (Emergency Pollution Control) Regulations 2002 (S.I. No.
1861) 2.28
Reg. 3 2.28
Reg. 4 2.28
Package Travel, Package Holidays and Package Tours Regulations 1992 (S.I. No.
3288) 11.22
Protection of Wrecks (Designation) (England) Order 2004 (S.I. No. 2395) 2.136
Protection of Wrecks (R.M.S. Titanic) Order 2003 (S.I. No 2496) 2.136, 3.8
Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994 (S.I. No.
1901) 28.50
Reciprocal Enforcement of Foreign Judgments (Canada) Order 1987 (S.I. No. 468)
28.50
Recreational Craft Regulations 2004 (S.I. No. 1464) 1.34
Rules of the Supreme Court 1883—
Ord. V
r. 16 12.154
Rules of the Supreme Court (Amendment) 1996 (S.I. No. 2892) 9.21
Rules of the Supreme Court 1976 (S.I. No. 1776) 0.33, 2.245, 9.2, 11.40
O. 6
r. 8 9.36, 10.69
(2) 9.21
O. 10
r. 1(3) 9.43
(4), (5) 9.43
r. 1A 9.52
r. 2 9.44
r. 4 9.48
O. 11 5.82, 9.5, 9.78, 9.93, 12.10 1
r. 1(1) 9.74, 9.75, 9.81
(a) 9.84
( b ) 9.89, 16.11A
(c), (e) 9.76
(f)(iii) 26.156
(2)(b) 3.32
r. 3 9.17
r. 5(b) 9.84
r. 8A 9.71, 16.11A
O. 12
r. 8 9.58
O. 14 14.27
O. 15
r. 6(7) 11.32
O. 16
r. 1(1) 6.193
O. 19 9.54
O. 20
r. 5 11.19
O 45
r. 4 25.68
r. 5 25.67, 25.68
O. 46
r. 1 25.67
r. 2 11.48
O. 47 10.44
r. 1 25.67, 27.67, 28.10 1
O. 52 25.67
O. 65
r. 4 10.74
O. 75 18.103
r. 1 2.244
r. 2(1) 2.245
r. 5(9) 15.98
r. 6A 24.80
r. 8 10.61
r. 13 18.103
Sch. 1 11.32
Safety (Collision Regulations and Distress Signals:) Regulations 1979 (S.I. No.
1659.) 26.142
Ship and Port Facility (Security) Regulations 2004 (S.I. No. 1465) 1.34
State Immunity (Merchant Shipping) (Revocation) Order 1999 (S.I. No. 668) 15.78
State Immunity (Merchant Shipping) Order 1997 (S.I. No. 2591) 12.117, 15.78
State Immunity (Merchant Shipping) (USSR) Order 1978 (S.I. No. 1524) 12.117,
15.78
Table of Conventions and Treaties
Accession Treaty 1978 5.46, 6.96, 6.112, 6.168, 6.198
Art. 24 6.3
Accession Treaty 1996 6.3, 8.4
Art. 7 6.3
Arrest Convention 1952 (International Convention for the Unification of Certain
Rules Relating to the Arrest of Sca -going Ships, Brussels, 10 May 1952) 0.11, 0.29,
0.33, 0.34, 0.36, 1.37, 2.1, 2.72, 2.139, 2.140, 2 .145, 2.169, 2.175, 2.182, 2.210, 2.236,
3.9, 3.28, 3.29, 6.5, 6.10, 6.12, 6.15, 6.22, 6.27, 6.63, 6.64, 6.168, 8.1, 8.3, 10.3, 10.4,
10.29, 10.33, 10.48, 10.61, 10.65, 10.66, 10.82, 12.6, 14.6, 14.75, 14.77, 15.8, 15.9,
15.12, 15.14, 15.15, 15.17, 15.22, 15.24, 15.31, 15.32, 15.36, 15.39, 15.40, 15.41,
15.42, 15.45, 15.72, 15.74, 15.88, 16.6, 18.123, 24.26
Art. 1 3.29, 6.12, 6.13, 15.12
(1) 2.223, 15.19
(a) 6.14, 6.25
(b) 2.167, 6.14
(c) 2.2 12, 6.14
(d), (e) 2.178, 6.14
(f) 2.176, 6.14
(g) 2. 235
(h) 2 . 1 8 4
(i) 2.215
(j) 2.217
(k) 2. 218
(m) 2.224
( n ) 2.23 1
Art. 3 6.22
(1) 10.49, 15.14, 15.19
(2) 1 5 . 1 9
(3) 6.18, 15.12, 15.14, 15.19, 15.43
(4) 10.49, 10.50, 15.14
Art. 4 15.20
Art. 5 15.42
(1) 15.19, 15.20
(2) 1 5 . 1 9
Art. 6 15.19
Art. 7 3.28, 3.30, 6.12, 6.14, 6.15, 15.12, 15.21
(1) 3.29, 15.15
(3) 6.14
Art. 8 6.25, 15.18
(1)-(3) 3.29, 6.13, 15.13
Art. 8(4) 3.29, 6.13
Art. 9 10.34, 15.18
Art. 10 10.49, 15.17
Arrest Convention 1999 (International Co nvention for the Unification of Certain
Rules Relating to the Arrest of Sea -going Ships, 1999) 0.33, 1.37, 2.1, 2.140, 2.145,
2.169, 2.183, 2.206, 2.222, 2.231, 2.236, 3.28, 6.5, 6.10, 6.22, 6.23, 8.3, 10.3, 10.4,
10.31, 10.34, 10.66, 15.9, 15.16, 15.45, 1 5.50, 15.72, 15.74, 18.123, 24.26
Art. 1(1) 2.218
(d) 2.149 (f),
(g) 2.178
(i) 2.235
(j) 2.215
(k) 2.2
17 (q)
2.187
(m), (n) 2.223
(o) 2.224
(q) 2.236
(2). 15.17 (h)
2.176 Art. 5
6.22 Art. 14(2)
6.22
Art. 15 2.212
Athens Convention Relating to the Carriage of Passengers and their Luggage by
Sea 1974 1.37, 3.9, 3.17, 3.19, 3.20, 6.10, 6.57, 8.3, 9.70, 10.62, 11.12, 11.21, 12.68,
12.72, 24.21
Art. 2 3.21
(1) 3.20
(2 ) 3.21
Art. 15 11.12
(3) 11.12
.
Art. 16(1), (2) 11.21

Art. 17 3.22, 6.57, 6.58, 26.16
Art. 17 6.58
Art. 19 3.18, 3.20
Protocol 1976 3.20, 6.57, 6.60, 8.3
Protocol 1990 3.20, 6.58, 6.60
Protocol 2002 3.18, 3.20, 3.24, 5.13, 6.58, 11.21
Art. 2(2) 3.24
Art. 4, 10 3.24
Art. 17 3.24, 6.57
(1), (2) 3.24
(3) 5.13
Art. 17.3 3.24
Berne Convention 1886 6.9
Brussels Convention 1968 (EC Convention on Jurisdiction and the Recognition and
Enforcement of Judgments in Civil and Commercial Matters. Brussels, 27 September
1968) 0.30, 1.36, 1.39, 1.40, 1.45, 1.47, 1.50, 3.4, 3.7, 3.9, 3.14, 3.15, 3.28, 3.41, 3.42,
3.43, 3.46, 3.47, 3.48, 3.50, 3.51, 4.1, 5.1 et seq.. 6.1 et seq.. 7.1 et seq., 8.1, 8.2, 8.3,
8.6, 8.11, 9.68, 9.70, 9.71, 9.78, 9.97, 9.101, 9.103, 10.16, 10.63, 12.1 etseq., 12.101,
12.105, 12.108, 13.12, 14.1, 14.6, 14.12, 14.60, 14.72, 15.9, 15.28, 15.37, 15.72,
16.23, 24.16, 25.21, 25.22, 26.85, 27.8, 27.10, 27.24, 27.25, 28.1, 28 .2, 28.29, 28.32,
28.62. 28.66, 28.67, 28.107
Art. 1 4.23
(1) 1.40, 5.22
Art. 2 4.20, 4.36, 5.5, 5.79, 6.88, 6.90, 6.102, 6.125, 6.156, 6.173, 6.184, 7.16,
12.15
Art. 3 5.4, 6.88, 7.16, 8.2
Art. 4 5.5, 5.77, 6.3, 6.100, 7.16, 12.16, 12.20
(2). 5.5
Art. 4A 5.9
Art. 5 4.13, 5.16A, 6.127, 6.141, 6.156, 6.189, 6.190, 7.8
(1) 4.14, 5.35, 5.79, 6.123, 6.124, 6.130, 6.132, 6.134, 6.135, 6.136, 6.146, 6.148,
6.149, 6.155, 6.156, 6.157, 6.161, 7.8, 7.22
(2) 6 . 1 2 3
(3) 6.35, 6.123, 6.124, 6.126, 6.134, 6.143, 6.158, 6.161, 6.162, 6.188, 7.8, 7.22
(4) 6 . 1 2 3
(5) 6.100, 6.123, 6.125, 6.178, 7.21
(6) 6.123, 6.179
(7) 6.63, 6.123, 6.168, 6.169
Art. 6 5.81, 6.100, 6.183, 6.184, 6.188, 6.198
(1) 6.186, 6.193
(2) 4.35, 5.58, 6.183, 6.186, 6.188, 6.193
(4) 6.198
Art. 6A 5.75, 6.61, 6.88, 6.181, 9.97
Art. 7 5.74, 6.101
Art. 8 6.101
(3) 6.102
Art. 9 6.101, 12.152
Art. 10 6.101, 6.102
Art. 11 6.102, 6.104
Art. 12 5.58, 6.104, 6.105
(4) 12.152
(5) 6 . 1 0 9
Art. 12A 6.105
Art. 13 5.16A, 5.74, 6.105, 6.107, 6.108, 6.110, 6.111, 6.113, 6.114, 6.117
(1) 6.106, 6.118
(a) 6.108
(2) 6.106, 6.108, 6.118
(3) 6.1066.117, 6.118
(4) 6.106, 6.109
Art. 14 6.105, 6.119
Art. 15 6.120
Art. 16 4.45, 5.44, 5.63, 5.74, 6.86, 7.3, 12.20, 12.52
(1) 6.198, 12.152
(2) 4.36, 5.22, 7.17
(3) 5.27, 5.28
Art. 17 5.16A, 5.35, 5.41, 5.58, 5.59, 6.15, 6.86, 6.105, 6.110, 6.130, 6.156,
6.157, 12.19, 12.52
Art. 18 5.16A, 5.44, 5.69, 6.86, 6.114, 12.52
Art. 19 4.48, 5.50
Art. 20 4.13, 4.16, 4.48, 4.51, 6.2, 6.3, 6.85, 12.20, 28.61
Art. 21 4.13, 4.49, 4.52, 6.15, 12.18, 12.19, 12.20, 12.22, 12.28, 12.30, 12.34,
12.42, 12.43, 12.49, 12.50, 14.76, 14.79
Art. 22 4.13, 4.50, 4.52, 5.24, 12.18, 12.19, 12.20, 12.22, 12.28, 12.30, 12.46,
12.50
Art. 23 4.49, 5.3, 5.71, 12.16, 12.20, 12.52
(1)(a) 5.71
Art. 24 4.40, 9.71, 12.16, 12.20
Art. 26 4.17, 5.29, 28.60
Art. 27 12.16, 12.25, 12.27, 12.31, 12.34, 12.40
(1 ) 2 8 . 5 5
(2 ) 28.61, 28.67
(3 ) 1 2 . 1 6
Art. 28 12.16, 12.25, 12.27, 12.31, 12.47, 12.51
Art. 29 12.25
Art. 30 12.26
Art. 31 12.17
Art. 34(4) 28.74
Art. 36 28.105, 28.106
Art. 37 28.105, 28.106, 28.115
Art. 38 4.52, 28.104
Art. 40 4.52, 6.85
(2). 4.51
Art. 41 28.115
Art. 42 28.110
Art. 45 6.55
Art. 52 4.14, 5.24, 5.96, 6.93
Art. 53 4.14, 5.17, 5.24, 5.113, 6.88
Art. 54 5.37
Art. 55 4.16
Art. 56 6.88
Art. 57 4.16, 5.15, 6.10, 6.15, 6.25, 6.42, 6.50, 6.71, 6.78, 7.11, 9.71, 10.34,
10.61, 10.64, 10.82
(3) 5.11, 6.3
Art. 58 5.107
Art. 59 28.51
Art. 60 4.19, 5.113, 6.358
Art. 63 5.71
Arts. 67, 69–7 1 4.17
Art. 72 4.17, 5.8
Protocol 1971 4.9
Art. 1 1.40
Art. 4 4.9, 4.10
Art. 37 4.9
Annexed Protocol
Art. I 5.32, 5.70, 6.130
Art. II 6.182
Art. IV 4.16, 6.85
Art. V 6.85, 6.101, 6.183
(b) 6.129
(d) 5.17, 5.28
Brussels Convention Relating to Civil Liability in the Field of Maritime Carriage
1971 6.10
Bunkers Convention (International Convention on Civil Liability for Bunker Oil
Pollution Damage 2001) 3.18, 5.12, 6.10, 6.29, 6.40, 6.89, 8.3, 24.34, 24.150, 28.39,
28.41
CIM Convention (International Convention Concerning Carriage of Goods by Rail)
1961 11.12
Art. 46 11.12
CIV Convention (International Convention Concerning Carriage of Passengers and
Luggage by Rail) 1961 11.12
Art. 46 11.12
CMR Convention (Convention Relating to International Carriage of Goods by
Road 1956) 3.19, 3.25, 6.10, 6.51, 6.56, 6 .59, 8.3, 11.12, 12.68, 12.72, 13.16, 15.32.
24.1, 24.22
Art. 1 3.25
(5) 3.25
Art. 2 3.25, 15.32
(1) 6.51, 11.16
Art. 3(1) 15.32
Art. 10 28.39
(2) 3.25
Art. 16 11.16
Art. 25(2), (5) 15.32
Art. 30 11.12
Art. 31 6.53
(1) 3.26, 6.51, 12.6
(2) 6.51, 6.53
(3) 3.26, 28.32
(4) 2 8. 3 2
(5) 6.55, 14.35
Art. 32 11.16 Art.
33 13.29 Art. 36
10.61 Art. 37
11.16 Art. 41 6.52
Art. 47 6.53 Art.
57 6.53, 28.32
Protcol 2002 11.16
Schedule
Art. 31 12.68
COTIF Convention (International Carriage by Rail Convention 1980) 11.12, 24.1
Civil Liability Convention (International Convention on Civil Liability for Oil
Pollution Damage, Brussels, 1969) 2.150, 6.10, 6.28, 6.36, 6.89, 24.18, 24.34, 24.58,
24.132, 24.132
Protocol 1992 6.10, 6.29
Collision Jurisdiction Convention (International Convention on Certain Rules
Concerning Civil Jurisdiction in Matters of Collision 1952) 2.240, 2.245, 3.9, 3.28,
3.31, 6.10, 6.24, 6.26, 6.64, 6.168, 6.187, 6.187A, 8.3, 9.70, 9.9 7, 12.68, 15.10, 15.26,
24.26
Art. 1 3.31, 6.24
(1)(b) 3.31, 6.22
Art. 2 3.31, 6.24
Art. 3 3.31, 6.24
(3) 6.26
Art. 5(7) 10.82
Convention for the Execution of Foreign Arbitral Awards 1927 27.63, 27.64
Convention for the Unification of certain rules of Law regarding Collision 1910
18.56
Convention Relating to the Liability of Operators of Nuclear Ships 1962 6.10,
6.37, 8.3
Danube Convention 1865 6.10
Ems-Dolland Convention 6.10
European Convention on International Commercial Arbitration 1961 27.63
European Convention on State Immunity 1926 12.117
Convention of Human Rights 0.12, 0.16, 1.32
Art. 6 0.12, 0.17, 9.25, 9.41, 11.30, 12.102
Funchal Convention 1992 26.3, 26.85
Fund Convention (International Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage 1992) 2.149, 2.153, 2.160, 2.161,
3.28, 3.35, 3.36, 6.10, 6.28, 6.32, 6.33, 6.34, 6.35, 6.36, 6.89, 8.3, 11.16, 12.149,
24.34, 24.58, 24.132, 24.137, 24.146
Arts. 3–5 2.159
Art. 7 2.160, 3.36
(1), (3) 6.33
(5), (6) 2.160
Art. 8 28.33
Art. 9 2.160
Art. 10 2.160, 28.33
Arts. 11. 12 2.160
Arts. 13-15 2.161
Arts. 16-23 2.161, 2.162
Arts. 24—36 2.16 1
Art. 37(1) 2.160
(2) 2. 161
(3), (4) 2.160, 2.161
Arts. 38–40 2.159
Protocol 2003 3.17, 3.36, 3.39, 5.12, 6.20, 6.32, 6.34, 8.3
Art. 7(1), (2), (3) 6.33
Art. 38 3.39
Geneva Convention on the Execution of Foreign Awards 1923 13.10
Art. 2(d) 13.11
HNS Convention (Convention on Liabilit y and Compensation for Damage in
Connection with the Carriage of Hazardous and Noxious Substance by Sea 1996) 2.33,
2.157, 2.158, 2.160, 3.8, 3.17, 3.19, 3.28, 3.34, 5.12, 6.10, 6.20, 6.76, 6.89, 8.3,
12.137, 24.31, 24.38, 24.43, 24.57, 24.126, 24.152, 24. 163, 28.37
Art. 1 6.76, 6.80
Art. 3 6.76
Arts. 4, 5 6.77
Art. 4 12.137
Art. 6(4) 6.79
Art. 9 24.153
(1), (2), (5)-(7) 24.153
Art. 10 6.79, 24.153
Arts. 11, 12 6.79
Art. 13 2.161, 6.80
Art. 14 2.161, 6.80
Art. 15 2.161
Arts. 16–23 2.161, 6.80
Arts. 24–35 2.16 1
Art. 36 2.161, 3.34
Art. 38 6.81
Art. 39 6.81
(1), (2) 3.35
(4) 6.81
(6), (7) 28.38
Art. 40 28.3
Art. 41 6.80
Art. 42 6.76, 24.40
Art. 46(1), (2) 2.158
Hague Convention on Civil Procedure 1954 28.19
Hague Convention on the Service Abroad of Judicial and Extra Judicial
Documents in Civil and Commercial Matters (Service of Documents Abroad
Convention) 1965 3.14, 4.54, 6.10, 6.82, 6.149, 8.3, 9.99, 9.100, 9.103, 28.19, 28.63
Arts. 2, 3 6.84
Arts. 5–11 6.83, 6.84
Art. 12 6.84
Art. 13 6.83, 6.84
Arts. 14, 15 6.84
Art. 16 6.83
Art. 15 4.16, 4.54, 6.2, 6.83
Art. 19 6.84 Art. 26 6.85 Hague Convention Relating to the Uniform Law on the
International Sale of Goods
1964—
Art. 59 6.149
Hague Rules 1924 3.5, 6.10, 6.41, 6.43, 6.45, 8.3, 11.3, 11.4, 24.23
Art. III
r. 8 6.41
Art. VIII 6.42
Hague-Visby Rules 1968 3.5, 3.19, 3.27, 6.3, 6.10, 6.41, 6.43, 6.45, 8.3, 11.3,
11.6, 11.12, 11.16, 11.18, 11.20, 11.33, 11.46, 12.70, 12.71, 13.52, 24.22, 24.23, 24.96,
24.12 1, 26.11, 26.14, 26.66, 26.67, 26.74
Art. III(6) 11.12, 11.18
(8) 6.41, 12.73, 12.74, 26.65
Art. IV(5)(a)(c) 24.23
Art. VI 24.21
(2) 24.23
Art. VIII 6.42, 12.74, 24.21
Art. IX 6.42 Art. X 26.10 Hamburg Rules 1978 1.37, 3.5,
3.40, 6.10, 6.45, 6.50, 8.3
Art. 5 24.21
Art. 21 26.16
(1) 6.45
Art. 21 10.61, 15.31
(1) 6.46, 15.28
(2) 6.46, 15.28, 15.29
(3) 6.46
(4) 6.47
(5) 6.46, 15.28
Art. 22 6.45, 13.16, 15.30
(5) 13.16
Art. 25 15.31
Inter-American Convention on International Commercial Arbitration 1975 27.63
International Convention for the Unification of Certain Rules Relating to the
Immunity of State Owned Ships 1926 12.117, 12.133
Protocol 12.117
International Convention on the Est ablishment of an International Fund for
Compensation for Oil Pollution Damage 1971 6.10, 6.32, 24.34
Protocol 1992 6.32
International Convention on Tonnage Measurements of Ships 1969 24.35
Art. 6(5) 24.35
Liability Convention (International Convention
on Civil Liability for Oil Pollution
Damage 1992) 2.23, 2.149, 2.150, 2.159, 3.28,
3.36, 6.10, 6.28, 6.33, 6.35, 6.36, 8.3,
11.16, 28.37
Art. Ii 6.28
Art. IX 3.35, 6.29
(1) 3.34
Arts. 3–5 2.159
Art. 7 2.160
(5), (6) 2.160
Art. 9 2.160
Art. 10 2.160, 28.38
Arts. 11, 12 2.160
Arts. 13–15 2.161
Arts. 16–22 2.161, 2.162
Art 23 2.161, 2.162
Arts. 24–36 2.16 1
Art. 37(1) 2.160
(2) 2. 161
(3), (4) 2.160, 2.161
Arts. 38-10 2.159
Liabilty of Operators Transport Terminals in International Trade Convention 1994
6.10
International Convention for the Unification of Certain Rules relating to the
Limitation of Liability of Owners of Sea Going Ships 1924 15.33, 24.19
Limitation Convention 1957 (International Convention relating to the Limitation of
Liability of Owners of Sea Going Ships) 1957 12.108, 15.33, 15.121, 15.129, 24.19,
24.30, 24.32, 24.34, 24.75, 24.80, 24.85, 24.88, 24.90, 24.99, 24.105, 24.109, 26.45
Art. 2 24.88, 24.94
Limitation Convention (Convention on Limitation of Liability for Maritime Claims,
London, 1976) 2.33, 6.10, 6.30, 6.61, 6.89, 8.3, 9.97, 12.105, 12.108, 12.148, 15.10,
15.33, 15.36, 15.69, 15.71, 15.136, 18.107, 24.12, 24.18, 24.19, 24.27, 24.30, 24.32,
24.33, 24.35, 24.36, 24.37, 24.39, 24.40, 24.41, 24.42, 24.45, 24.46, 24.48, 24.49,
24.63, 24.65, 24.70, 24.73, 24.76, 24.80, 24.85, 24.90, 24.94, 24.95, 24.96, 24.99,
24.101, 24.107, 24.109, 24.1 11, 24.120, 24.121, 24.123, 24.124, 24.125, 24.126,
24.129, 24.130, 24.144, 24.171, 24.172, 26.45
Art. 1 24.51
(7) 24.36
Art. 2(1) 24.53
(a) 24.55, 24.56
(2) 24.53, 24.54
Art. 3 24.58
(e) 24.41
Art. 4 24.62
Art. 6 24.58, 24.65
(1)24.68 (3) 24.67
Art. 7 24.65, 24.66
Art. 7(1) 24.68, 24.69
Art. 8 24.38
(2)2 4 . 6 5
Art. 9 24.36
Art. 10 24.44
Art. 11 24.36, 24.44, 24.70, 24.84
Art. 12 24.70
(1) 24.25
(3)2 4 . 1 2 5
Art. 13 6.63, 24.70
(1) 24.36, 24.72
(2) 15.34, 24.36, 24.72
(3) 1 5 . 3 5 Art.
14 24.70. 24.125
Art. 15 24.37. 24.38
(4) 2 4 . 3 7
Art. 18 24.38
(1) 24.37, 24.53
Protocol 1996 6.10, 6.61, 8.3, 24.35, 24.36, 24.38, 24.59
Load Lines Convention 1966 3.8, 3.10
Convention 1957 (EC and EFTA Jurisdiction and Judgments Convention 1 988)
0.30, 1.36, 1.39, 1.44, 1.46, 1.47, 1.50, 3.9, 3.14, 3.41, 3.43, 3.47, 3.48, 3.50, 3.51, 4.1,
5.44, 5.82, 5.86, 5.96, 6.2, 6.98, 6.139, 6.147, 6.149, 7.1, 8.1 et seq., 9.70, 9.70, 9.71,
9.78, 9.97, 9.101, 9.103, 10.63, 12.1, 12.26, 12.32, 12.35, 12.87, 12.101, 12.105, 13.ll
14.1, 14.6, 14.12, 14.67, 14.70, 14.71, 14.81, 15.9, 15.22, 15.28, 15.37, 16.23, 24.163,
27.8, 28.1, 28.5, 28.57
Art. 3 8.2, 28.49
Art. 5(1) 8.5
Art. 6(a) 9.97, 28.50
Art. 16 8.6
(1) 8.1
Art. 17 8.3, 8.6
Art. 20 6.2
Arts. 21, 22 28.25
Art. 26 28.79
(1) 28.9
Art. 27 28.8
Art. 28 28.8, 28.50, 28.54, 28.45, 28.46, 28.53
Art. 30 28.81, 28.88
Art. 31 14.60
(1) 28.9
Art. 34 28.52
Art. 39 14.86, 28.97
Art. 45 28.52, 28.93
Arts. 54, 54A 8.1
Art. 54B 8.1, 8.6, 28.46
Arts. 55, 56 28.26
Art. 57 8.1, 8.3, 9.71, 10.34, 10.61, 10.64, 10.82, 28.27, 28.28
(4) 28.53
Art. 61 8.1
Art. 71 14.71 Art.
72 28.53 Protocol
No. 2 8.1
Luxembourg Convention 1984 26.3, 26.85
Maritime Mortgages and Liens Convention 192 6 2.223, 2.235, 6.10, 6.67, 6.68,
6.169, 8.3, 15.8, 15.11, 15.38, 17.25, 18.120, 18.122, 18.125, 18.126, 18.127, 18.128,
18.129, 23.181, 24.24, 28.35
Art. 1 18.125 Art. 2
18.126 Art. 3 18.127,
18.128
Art. 5 18.127
Art. 7 18.126, 24.24
Arts. 8, 9, 11, 13 18.127
Art. 14 18.121
Art. 15 18.121, 18.126
Maritime Mortgages and Liens Convention 1967 2.223, 2.235, 6.10, 6.67, 6.169,
8.3, 15.8, 15.11, 15.38, 17.25, 18.120, 18.122, 18.123, 18.129, 18.130, 18.131, 18.134,
18.136, 18.144, 23.181, 24.24, 24.25, 28.35
Art. 1, 2 18.130
Art. 3(2) 18.130
Art. 4 18.131
(1) 18.131
(2) 2 4. 2 4
Art. 5 18.132
Art. 6 18.133, 20.1
Art. 7 18.131 Arts.
8, 10 18.132
Art. 11 28.35
(1), (2) 18.132
Art. 12 18.121
(2) 18.131
Art. 14 18.121
Art. 57 6.67
Maritime Mortgages and Liens Convention 1993 2.223, 6.10, 6.67, 6.169, 8.3,
11.37, 15.8, 15.11, 15.38, 17.25, 18.88, 18.120, 18.122, 18.123, 18.124, 18.134,
18.135, 18.136, 18.138, 18.139, 18.140, 23.181, 24.24, 26.173, 28.35
Arts. 1–3 18.138
Art. 4 18.139
Art. 5 18.139, 18.141
Art. 6 18.145
Art. 7 18.139, 20.1
Art. 8 18.140 Art. 9 18.143
Art. 10 18.142 Art. 11
18.143 Art. 12 18.143, 18.144,
28.35
(1) 18.138
(4) 18.139, 18.142
Art. 13 18.135, 18.136
(1), (2) 18.121
Art. 15 18.121, 24.24
Art. 16 18.137
Moselle Convention 1956 6.10
Multimodal Convention 1980 6.10, 6.50, 8.3
Art. 26, 27, 30 6.50
New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards 1958 1.32, 4.29, 9.98, 13.2, 13.9, 13.10, 24.50, 25.25, 27.63, 27.65, 27.67
Paris Convention on Third Party Liability in the Field of Nuclear Energy 1960
6.10, 8.3, 14.35
Art. 13 28.36
Protocols 8.3
Paris Convention on Third Part y Liability in the Field of Nuclear Energy 1963
3.28, 3.38, 6.38, 14.35
Art. 13 3.38, 6.37
Pollution Preparedness Response and Cooperation Convention 1990 3.8
Rhine Navigation Convention 1868 (amended 1963; otherwise known as the
Mannheim Convention) 3.28, 3.37, 6.10, 8.3
Art. 34 6.70 Art.
35 6.71 (b), (c)
6.71 Protocols 1-3
6.10
Rome Convention 1980 3.43, 6.144, 11.8, 12.56, 13.31, 26.5, 26.9, 26.16, 26.18,
26.19, 26.22, 26.30, 26.53, 26.85, 26.104, 26.153, 26.156, 26.157, 26.164
Art. 1 26.89, 26.91
(3) 26.91
Art. 2 26.54
(1)–(3) 26.88
(5) 26.114
Art. 3 26.93
Art. 4 26.93
(1) 26.106
(2)26.107, 26.115, 26.116
(3), (4) 26.107
(5) 26.106, 26.107, 26.115, 26.116
Art. 5(1)–(5) 26.87
Art. 6(1), (2) 26.87
Art. 7 26.150
(1), (2) 26.100
Art. 8 26.59, 26.95
(1),(2) 26.18
Art. 9 26.59
( 1 ) 2 6. 9 5
(4) 26.96
(5), (6) 26.95 Art. 11
26.59 Art. 12 26.39, 26.91,
26.98
( 2 ) 26.164
Art. 13 26.91, 26.99, 26.164
Art. 14(1), (2) 26.47
Art. 15 26.57 Art. 16 26.35 SOLAS Convention (International Convention for the
Safety of Life at Sea 1974)
3.8
Salvage Convention 1989 2.42, 2.44, 2.47, 2.207, 3.10, 6.10, 11.4, 12.72, 12.135,
12.141, 15.77, 18.30, 18.37, 18.86, 18.115, 18.122, 26.160
Art. 1(c) 18.44
Art. 3 2.44
Art. 14 2.2 12, 24.59
Art. 16 2.55
Art. 20 2.45, 2.57, 18.30
(2) 18.123
Art. 23 11.16, 11.27
Art. 30(1)(d) 2.46
Supplementary Compensation for Nuclear Damage Convention 1997 6.37
Treaty of Accession of the United Kingdom —
Art. 299(6)(c) 4.21
Treaty of Amsterdam 3.13, 4.4
Title IV
Art. 62, 65 3.44
Treaty of European Union, Act of Accession 3.43, 4.21, 5.7, 5.102
Art. 4 4.54
Art. 20 4.21 Art. 43 4.43
Treaty of Rome 3.11, 4.1, 4.9
Title IV 3.12, 3.13, 4.4
Arts 61c, 65 3.13
Title V 3.11, 3.12
Title VIII 3.12
Title XI 3.12
Art. 299 3.43
Protocol
Art. 1 4.12
Art. 3 4.4
Art. 7 4.4, 6.55
Art. 68 4.12, 14.46A
Art. 234 (ex Art. 177) 4.11, 4.12
Art. 299 4.21
UN Convention on the Law of the Sea 1982 3.10, 3.28, 3.39, 6.10, 6.37, 6.73, 8.3
Arts. 17–26 6.74
Arts. 37–45, 52 6.74
Arts. 91, 92, 97, 99–109 6.73
Arts. 105, 106, 110, 111 6.74
Vienna Convention on Third Party Liability in the Field of Nuclear Energy 1963
3.40, 6.10, 6.37, 6.39, 8.3, 14.35
Art. X 6.37 Art. XI
6.37 Art. XII 6.37,
28.36
Protocol 1992 8.3
Protocol 1997 6.10, 8.3
Vienna Convention 1980 6.149
Warsaw Convention (Convention for the Unification of Certain Rules Relating to
International Carriage by Air) 1929 11 .12, 24.1
Art. 26 11.12 Art. 46 11.12
York-Antwerp Rules 1994 2.236
Introduction
Maritime Claims and their Consequences
1. The Tripartite Nature of Maritime Claims

0.1 Of what legal consequence is it that a claim is "maritime" in nature —or, to put
it another way "lies in Admiralty"? This book deals with the jurisdiction al, remedial
and security consequences which follow simply from the inclusion of a claim within
Admiralty jurisdiction. Naturally, in any legal system, any particular consequences are
built on and into the framework of that system as a whole. It is, therefore, essential to
consider not only the rules applicable to Admiralty as such but those governing claims
generally and applied to maritime as any other claims. Note must thereby be carefully
taken of domestic differences between Admiralty and other claims.
0.2 There are three enforcement aspects of maritime claims:
(i) the extent to which a remedy may be obtained by a maritime claimant so as to
ensure that there will be assets available to turn a judgment into material gain ( the
interim or provisional remedy aspect );
(ii) the rules governing the bringing of an action to enforce a maritime claim ( the
jurisdictional aspect);
(iii) the extent to which a maritime claimant becomes a preferred creditor ( the
security aspect).
0.3 In many legal systems based on codes this logical (and indeed chronological)
order is borne out in legislation. Rules of provisional remedy will be found in the Civil
Procedure Code, unless there are particular maritime rules which may then be included
in the Maritime Code. Rules relating to jurisdiction on the merits will probably be
found similarly in procedure codes but distinguished from rules relating to provisional
remedy. Rules relevant to preferred creditors will be in the Maritime Code, in so far as
these are maritime rules and in the Civil Code in so far as they are genera lly applicable.
0.4 In English law we are not blessed with such logic. The rules are to be found
partly in legislative act—statute or procedural rules—and partly in judicial statements
in decided cases. The three aspects of provisional remedy, jurisdiction on the merits
and preferred claims are inextricably intermingled, and terminology remains heavy with
confusion between the three, in particular because of the use of "lien". Actions and
claims in rem and in personam
0.5 Traditionally Admiralty jurisdiction was described as encompassing (i) the
action in rem with its elements of arrest and lien, and (ii) the action in personam. The
action in rem was (and is) unique to Admiralty while the action in personam simply
described actions identical in concept with all other civil actions whatever their content
and in whichever court they were brought.
0.6 The Civil Procedure Rules procedural terminology focuses on the claim rather
than the action. Since the incorporation i n 2001 of Admiralty Claims as Part 61 1 of the
Rules for the purpose of setting out the procedure claims are divided into "claims in
rem" and the rather unrevealing "other claims". 2 The claim forms are headed Admiralty
claim in rem and "Admiralty claim". 3
0.7 The change serves in a negative way to indicate the generic procedural identity
of all Admiralty claims save those in rem with all other claims. However, the well tried
labels for the substantive characteristics of actions in rem and actions in personam
remain as statutory categories. Secondly, any link with claims outside Admiralty should
not conceal particular Admiralty characteristics in some claims (e.g. collision and
limitation). The Concept of "Lien" —and Its Connection with Arrest and
Jurisdiction
0.8 In common legal parlance a lien is a security concept indicating that the claim
protected by it can be asserted against the asset in which the lien is held. It indicates a
right enforceable against purchasers and, to some extent, a preferre d claim enforceable
in priority to unsecured creditors. In English law it developed from the "possessory
lien" which provides only a passive right of retention of an asset in support of a claim.
While such a lien remains of importance, other liens providin g for more aggressive
assertion of claims are now also established. In particular, since 1851 English law has
recognised the concept of the "maritime lien" and attached that lien to specified claims.
0.9 The concept of the lien fits well with maritime clai ms, for historically in
English law such claims traditionally attracted the ability to enforce them, at least to
some extent, against particular assets. Provided the appropriate procedure is followed,
this ability makes the maritime claimant a preferred creditor. It is an easy step,
therefore, not to restrict the term "lien" to claims attracting a "maritime lien" but to label
each "preferred" maritime claim a "lien". Further, as the appropriate procedure was to
issue a writ (now a "claim form") commencing an action on the merits (an in rem claim
form), the idea of a lien was linked to the availability of a particular kind of action on a
maritime claim (i.e. jurisdiction in rem); and as that kind of action (action in rem)
carried with it a provisional remedy (arrest) so that aspect became connected to
jurisdiction and security.
0.10 A final terminological step is to use "lien" to describe the whole —i.e. the
claim having remedial, jurisdictional and security aspects—and thereby to conceal the
differing aspects of the parts. The reasons for the intermingling of the jurisdictional,
remedial and security parts into this somewhat misleading whole are historical. In 1997
in the Indian Grace (No. 2) 4 the House of Lords recognised the action in rem for what it
is—an action against a defendant with particular benefits for a plaintiff rather than an
action against a thing (see Chapters 10 and 17). But regrettably its relation to the lien
was seen as irrelevant to the issue in the case.
0.11 That recognition helps to demystify the Admiralty process in the replacing of
fiction by reality. However, the strands of the process remain confused. The time has
surely come for a determined atte mpt to separate what are quite distinct matters of
policy. Failure to do so has played its part in ratification of at least one international
Convention (the Convention Relating to the Arrest of Sea Going Ships 1952) without
compliance domestically with its provisions, a surprising inability to adapt fully the
availability of the most effective provisional remedy (arrest) to arbitration, in
uncertainty as to the security aspects of actions available to maritime claimants and
priority as between maritime claims. Methods of Dispute Resolution
0.12 The traditional adversarial process through the courts remains at the centre of
dispute resolution, if only that it is necessary for any enforcement. But it is affected (i)
by the use of and respect paid to arbitrati on when selected by the parties, and (ii) to a
lesser extent mediation (known generally as alternative dispute resolution). All the
methods are subject to the right of access to a court and fair trial under The European
Convention of Human Rights (the Human Rights Convention) Article 6 (enacted by the
Human Rights Act 1998). So the procedural requirements of the CPR must be consistent
with the Convention rights. 5 Arbitration
0.13 Detailed statutory provision for arbitration 6 recognises the importance of a
consensual method of resolution and limits the ability to resort to the courts where it has
been chosen. The arbitration structure operates alongside but linked to and to an extent
controlled by the courts. It usually does not affect the substantive law to be applied but
has relevance as to the enforcement of decisions and the courts’ powers to intervene in
them (see Chapter 13). Alternative Dispute Resolution
0.14 The courts are directed by the Civil Procedure Rules 1998 actively to manage
cases and as part of that exercise where appropriate to encourage and facilitate the use
of resolution otherwise than through the trial process. 7 It is common practice for an
ADR Order to be made even if the parties object, but the strongest form of such an order
"stops short" of compulsion to enter mediation". 8 Effect of the Human Rights Act 1998 9
0.15 Subject to specified exceptions mainly relating to Parliament it is unlawful for
a public authority (including a court) to act in a way incompatible w ith a Convention
right. A person may rely on such a right in any legal proceedings.
0.16 Courts are under a duty so far as possible to give effect to primary and
subordinate legislation in a way compatible with the European Convention on Human
Rights. The provision does not affect the validity of primary legislation, the powers in
that regard being limited to a declaration of incompatibility. However, in respect of
subordinate legislation in effect it goes to the heart of validity and meaning, and in that
context confers a wide power of amendment. 10
0.17 By Article 6 of the Human Rights Convention everyone is entitled to have
access to a court and "a fair and public hearing" to determine civil rights and
obligations.11 This includes the right (subject to exceptional reasons such as security) to
have access to relevant evidence, 12 to take part in the proceedings 13 and to have a
reasoned decision made in reasonable time. Subject again to exceptions the hearing
should be in public and the judgment given in publ ic. There is no provision for a right of
appeal. However, where such a right exists Article 6 applies subject to the nature of the
process as a whole and the appellate role in that process. 14
0.18 The right is not absolute for by its nature it requires sta te regulation and the
states have a "certain margin of appreciation". Any limitation must not destroy the right,
must have a legitimate aim and must be proportionate to the aim sought to be achieved. 15
0.19 While some of the elements may be waived through consent e.g. to an arbitral
process, any compulsion to enter into such a process or mediation would, if subject to
constraints, be contrary to the right. 16 2. The Relevance of a Foreign Element
0.20 A maritime claim is more likely than not to be connected with more than one
state. By the nature of maritime activity it is highly probable that not all events relevant
to a claim will have occurred in the state in which it is sought to enforce that claim. So
any attempt to pursue such a claim in any state will often raise a preliminary question of
jurisdiction in the courts or arbitral tribunal of that state. Certainly this may be so for
any claim with a foreign element which is brought in England.
0.21 Relevant to the hearing of a claim is the availability of a ny interim remedy in
relation to the action. Also material is first, the law which will govern the substantive
issues, secondly, the ability to enforce the judgment against the defendant’s assets in the
state where proceedings are brought or elsewhere and thirdly whether, lacking such
enforcement, the bringing of proceedings affects the ability to start again in the same or
another state.
0.22 In turn relevant to these matters is the extent to which any national law will
recognise that a party has a choice or even an opportunity to make representations as to
jurisdiction. Further, the question of recognition or enforcement of a judgment in a state
other than that in which it was obtained may arise independently of that of jurisdiction to
hear the case. In that event a plaintiff will simply be anxious to enforce a claim through
the judgment without the necessity of starting new proceedings. 3. Statutory and
Convention Development Statutes
0.23 The development reflects a (sometimes ill -fitting) joining of history and
international agreements. Until 1956
0.24 Since the nineteenth century, domestic Admiralty jurisdiction has depended
partly on the building up of a framework by the judiciary and partly on statute. Modern
jurisdiction is rooted in the Admiralty Court Acts 1840 and 1861 and the codified
extension of the Supreme Court of Judicature (Consolidation) Act 1925. One of the
major problems of construction was to assess the effect of the statutory extension of
Admiralty jurisdiction on the concepts developed prior to 1840 —and in particular the
relationship of Admiralty jurisdiction to the attachment of liens to maritime claims,
traditionally a hallmark of Admiralty. The Administration of Justice Act 1956
0.25 In 1956 the grounds of claim within Admiralty jurisdiction were again
codified and extended in the Administration of Justice Act, but even here history took its
toll. The statute of 1956 reflected the international approach in taking as its primary
base the Convention Relating to the Arrest of Sea Going Ships 1952 (hereafter the
Arrest Convention). It was, however, not bold enough —or internationally minded
enough—to make a break with history. First the statute (unlike the Convention) made no
attempt to distinguish between "arrest" and jurisdiction over the hearing of a claim on
the merits. Secondly, the statute persisted in using the "maritime lien" as a jurisdictional
ground while failing to define the nature or content of the concept. Thirdly, in addition to
the Convention claims it included a catch-all provision incorporating claims historically
recognised as part of English Admiralty.
0.26 An opportunity to set out effectively Admiralty jurisdiction, interim remedies
and security aspects and to bring closer toget her the common and civil law approach
was missed in 1956. Instead a major fundamental defect was written even more
distinctively and directly into the English maritime legal framework. The grounds of
claim were specified, the type of action ( in personam or in rem) to enforce them was
specified to some extent, but the interim remedy and security aspects were ignored. The
Supreme Court Act 1981
0.27 In 1981 came another chance to introduce a comprehensive code with the
replacement of the relevant provisions of the Administration of Justice Act 1956 by
provisions of the Supreme Court Act 1981. A major change was proposed to bring
English law into line with the Arrest Convention. But shipowners and their insurers
awaking (actually or tactically) a little late to the effect that compliance with
international obligations would have on them persuaded the Government to think again.
While it was thinking again it could well have thought about codifying those parts of
Admiralty jurisdiction, interim remedy and securi ty that statutes did not, and as yet do
not, reach. The European Union
0.28 Membership of the European Union requires the recognition of the laws of
that Union ("European law") including those extended to the European Economic Area
enforceable either direc tly or through domestic legislation. Those laws have
considerable impact on the regulation of the maritime industry, including enforcement
rights and obligations (see Chapter 1).17 Conventions enacted into English law
0.29 A number of Conventions enacted into English law contain jurisdiction
provisions relating to maritime claims. In this way specific jurisdiction prerequisites
are introduced in respect of particular claims. Further, the framework of mar itime
claims in general is, as has been said, intended to reflect the Arrest Convention 1952.
Civil Jurisdiction and Judgments Acts 1982, 1991 and Order 2001
0.30 The most far reaching and radical changes to English Admiralty jurisdiction
were encompassed in the general shift of the jurisdiction for commercial claims from
procedure to a substantive link following United Kingdom membership of the European
Community. The changes were reflected in the jurisdiction and judgments structure set
out in the Convention on Jurisdiction and the Recognition and Enforcement of Judgments
in Civil and Commercial Matters ("The Brussels Convention") agreed by the original
Member States in 1968 and amended on the accession of each new state. A "parallel"
Convention 1988 created an almost identical structure in respect of states members of
the European Union and the European Free Trade Association, and such other States
which become parties ("The Lugano Convention" ).
0.31 As regards claims made on or after 1 March 2002 as between Member States
save Denmark, the Brussels Convention is replaced by Council Regulation 44/2001.
The 1982 Act was amended and adopted accordingly . The Regulation was amended and
adapted to the ten States becoming members on 1 May 2004 ( see Chapters 1, 4).
0.32 The Conventions became part of English law in the 1982 Act as amended by
the 1991 Act. As a consequence there is one jurisdiction and judgme nt structure for
cases connected with Europe and another (national) for other cases. The complexity
increases, underlining the need for an Admiralty Code in English law. Further
developments
0.33 The wording of the Supreme Court Act 1981 allowed for the in corporation of
any change in maritime claims. The replacement in 1999 of the Rules of the Supreme
Court by the Civil Procedure Rules creates the foundation for updating the procedural
framework. That relevant to jurisdiction in personam is changed for the better in regard
to defendants served with process in England but otherwise remains substantially the
same. The Admiralty process carried through to the Rules is likewise much the same. So
while procedural details have changed, nothing has changed in relation to the various
fundamental and confused aspects of the approach to enforcement of maritime claims in
English law. A replacement for the Arrest Convention 1952 agreed in 1999 ( see Chapter
15) but not yet in force presents a further opportunity for a comprehensive framework. It
will be difficult to enact the Convention without some change in approach. 4. Matching
Statute and Convention
0.34 The need for a statutory clear and updated statement of all aspects of maritime
claims has been emphasised by continued reliance on historical Admiralty practice to
interpret the current statutory framework. In 1967 in The Monica S18 counsel argued that
the Administration of Justice Act 1956 was merely declaratory of pre -existing law in
that an action in rem became effective on arrest of a ship and not issue of a writ in rem.
This argument was rejected by Brandon J. both on the authorities and on the basis that, if
prior to 1956, the rule had been as argued the question sh ould be decided by "the
ordinary and natural construction" to be put on the statute. And that led also to the
rejection of the argument. But the very fact that the statute is so worded as to allow the
argument to be raised is a defect in the approach to a modern Admiralty framework.
Further examples of an unduly restrictive, because historical, approach are decisions of
the House of Lords in The Goring19—geographical scope of a salvage action —and The
River Rima20—the supply of goods to a ship. In the latter the House of Lords even
construed the Convention Relating to the Arrest of Sea Going Ships in the light of
English law prior to the Convention (see Chapter 2).21
0.35 However, the judicial trend over the last fifteen years has not always been
backward. First, apart from strenuous efforts to maintain some common law doctrines
(see Chapter 12) the courts have shown themselves more ready to accept that the United
Kingdom is part of the European Community than have many politicians. Secondly, there
have been a number of decisions accepting consequential legal changes from radical
statutory development, 22 and thirdly there is recognition that fiction had outrun its u tility
in the analysis of the action in rem.23
0.36 The legislative pattern must bear part of the responsibility for any reluctance
to move forward—for failing to develop and put the whole framework into statutory
form. This failure is heightened by attempting to comply with the Arrest Convention
1952 through the introduction of statutes focused on actions on the merits. English law
traditionally made not only the availability of "security" for a claim but interim remedy
depend on jurisdiction over the claim on the merits. Because of this (traditional)
approach, actions on the merits must still be considered first in any analysis of the
Admiralty framework —even though there is now recognition that there is not
necessarily an equation in jurisdiction terms between merits and ancillary orders. 24
1. By SI 2001/4015.
2. See 61 PD 3, 12.
3. Forms ADM 1, ADM 1A.
4. [1998] 1 Lloyd’s Rep. 1.
5. See e.g. Anderton v. Clwyd CC [2002] 2 All E.R. 813—the service of claim
form requirements not inconsistent with the Convention right of access to a court.
6. See now Arbitration Act 1996.
7. CPR 1.4 Admiralty and Commercial Court Guide, para. D8.8. For the duty to
consider mediation see (e.g.) Dunnett v. Railtrack plc [2002] 1 W.L.R. 2434 at part 14.
A failure to consider or unreasonably refuse to enter into mediation may be reflected in
costs (see Halsey, para. 31, Reed Executive Plc v. Reed Business Information Ltd
[2004] EWCA Civ 887 (no power to order disclosure of "without prejudice"
negotiation).
8. See (e.g.) draft Order set out in Admiralty and Commercial Court Guide
Appendix 7. The European Commission has recommended to the European Parliament
and the Council a draft directive on ADR obligating Member States to provide for
enforcement of settlements by judgments (COM (2004) 718).
9. See Halsey v. Milton Keynes WHS Trust [2004] EWCA Civ 576. For further
effects of substantive law, see Chapter 1.
10. See e.g. Goode v. Martin [2002] 1 W.L.R. 1828 (C.A.)—adding words to CPR
r 17.4(2) (amendment of a claim form). The court based its decision both on the
Convention and the overriding aim of the CPR —to deal with cases justly (r. 1.2(b)).
11. But not where that access is to be as between different states ( OT Africa Lin v.
Fayad Hijazy [2002] 1 L.Pr. 18.
12. So the practice of not disclosing the answers of nautical assessors to counsel
was inconsistent with the Convention, and should change with submissions invited.
Owners of ship "Bow Spring" v. Owners of ship "Manzcnillo II [2004] EWCA Civ
1007.
13. But not necessarily to be able to afford representation. See Citibank NA v.
Rafi dan Bank [2003] EWHC 1950.
14. See Tolstoy Milaslavsky v. U.K. [1995] 20 EHRR 442 at 442 at p. 475 applied
to the restrictions in English law on appeal from arbitration in Mousaka Inc. v. Golden
Seagull Maritime Inc. [2001] ECWA Civ 576. See further Chapter 13.
15. See Ashingdane v. UK (ECHR) (1985) 7 EHRR 528 at para. 57 reiterated in
Tinnelly v. UK [1998] 27 ECHR para. 72. As to the consistency of provisions of the
CPR preventing a claimant from a hearing on the mer its see Woodhouse v. Consignia
Plc [2002] EWCA Civ 275 and Ch 9.
16. See Deweer v. Belgium (1979–1980) 2 EHRR 439 (para. 49).
17. As to Member States, see Chapters 4, 8.
18. [1968] P. 741.
19. [1988] A.C. 831; [1988] 1 Lloyd’s Rep. 397.
20. [1988] 2 Lloyd’s Rep. 193 (H.L.).
21. See also Tehno-Impex v. Gebr von Weelde Scheepvaartkantof BV [1981] 1
Q.B. 648 in which Oliver L.J. (dissenting) construed the power of maritime arbitrators
to award interest not by reference to current jurisdiction b ut to that under the Admiralty
Court 1861. So on this approach there would have to be constant reference back to the
point of acquiring Admiralty jurisdiction. In The La Pintada [1984] 2 Lloyd’s Rep. 9
the House of Lords overruled Tehno-Impex—but the point as to constant reference back
remains.
22. See e.g. The Bazias 3 and 4 [1993] 1 Lloyd’s Rep. 101 (as to which see
Chapter 15; The Capitan San Luis [1993] 2 Lloyd’s Rep. 573, as to which see Chapter
24.
23. See The Indian Grace (n. 1).
24. See Chapter 14.
Part I
Jurisdiction and Modes of Enforceability

Chapter 1
Sources of Admiralty Jurisdiction

1.1 As will be apparent from the Introduction, the sources of English Admiralty
jurisdiction are diverse. A claimant seeking the framework must consider statute, civil
procedure rules and judicial doctrine, and must not always expect to find reference from
one source to another. The starting point is the Supreme Court Act 198 1, 1 but in some
respects the Act simply triggers the need to define concepts used, and makes no
reference at all to some elements which are inherent in the jurisdictional framework. It
is, therefore, necessary both to sound a cautionary note as to the limits of the Supreme
Court Act and to review the other sources to discover the framework or Admiralty
jurisdiction.
1.2 The Supreme Court Act itself reflects the two often inconsistent forces of
national historical development and international agreements. Conventions play an ever
increasing role as a foundation for maritime legislation. More, membership of the
European Union and Free Trade Association has as a consequence agreement on
jurisdictional criteria which hitherto had no part to play in English law. As such criteria
apply only within the European area, there are now in English law two sets of rules —
one for cases connected with the Union or Association and the other for the remainder.
1. The Admiralty Framework of the Supreme Court Act 19812
1.3 The statutory framework is founded on:
(i) a list of claims within the jurisdiction (including the reference to past and future
jurisdiction the latter limited to jurisdiction in regard to ships or aircraft directed by
rules of court to be exercised by the Admiralty Court (s.20):
(ii) a specific reference to the "aritime lien"as a ground for an action in rem
(s.2 1(3));
(iii) enforcement of claims in (i) through actions in personam and/or actions in
rem (ss.21–24). (i) The List of Claims (Section 20)3
1.4 The detailed nature of the claims and any additions to the list through the
gateway of past jurisdiction must be discovered through judicial doctrine and, possibly
in the latter aspect, statutes now repealed. Although it may be expected that a statutory
skeleton would need judicially created flesh it will be seen that the statutory bones are
not always as connected with each other as is desirable. In particular, the reference to
past jurisdiction creates problems of uncertainty and lack of uniformity of app roach.
Such reference requires historical reference to an age in which concepts now well
established were in their infancy, in which jurisdictional quarrels with other English
courts were rife and in which there was no thought of a jurisdiction based on
international Conventions. 4 (ii) The "Maritime Lien" (Section 21(3))5
1.5 The maritime lien is one half of the dual key to English Admiralty jurisdiction
—the other being the action in rem. The maritime lien attaches to a restricted number of
maritime claims as established through judicial doctrine. It is enforceable through arrest
and is one of the most powerful security interests in English law. Nowhere in the Act is
"aritime lien" defined either by concept or content —but the Act provides in section
21(3):
"(3) In any case in which there is a maritime lien or other charge on any ship,
aircraft or other property for the amount claimed, an action in rem may be brought in the
High Court against that ship, aircraft or property."
Under this provision the action in rem extends to "property" but the property must
be connected with the claim. Further, from the drafting of the provision as a whole it
seems that the ability to rely on a maritime lien as a ground of an action in rem is in
addition to that of the action in rem brought on the basis of a claim specified in section
20. But there is no clue in the statute of a relationship (if any) between those claims and
the "maritime lien". In this respect as in others the Act assumes as much, if not more,
than it provides. (iii) Actions "in Personam" and Actions "in Rem" (Section 21)6
1.6 The Supreme Court Act 1981 provides for enforcement of each category of
claim specified by the Act as within the Admiralty jurisdiction by an action in
personam and, in respect of some, also by an action in rem. It also provides that a
maritime lien may be enforced by an action in rem. However, the Act does not indicate
the characteristics of either type of action, the relationship between them or, sav e in
respect of collision actions, any prerequisites for hearing claims having a foreign
element.7 Rules relating to these matters must be sought in other statutes (particularly the
Civil Jurisdiction and Judgments Acts 1982 and 1991), rules of court (now Civil
Procedure Rules) and judicial doctrine. "Action in personam"
1.7 In the context of a maritime claim the action in personam simply describes the
process for enforcing a claim which would apply in the English legal system whatever
the nature of the claim. It describes an action (other than that concerned with status)
aimed at a defendant, the purpose of the action being to seek a remedy against that
defendant. It is not restricted to actions alleging fault of the defendant or even t hat any
act of his necessarily is the basis of the claim. It includes (for example) the enforcement
of a mortgage or a charge against the mortgagor or a purchaser of a ship as well as the
more obvious enforcement of a charterparty claim against the other p arty to the charter.
1.8 In this context, therefore, the phrase does not describe a personal as distinct
from a property claim. 8 The accurate if perhaps hardly helpful definition of an action in
personam is simply that it is not an action in rem. The Supreme Court Act 1981
1.9 The Supreme Court Act 1981, section 21(1), provides that any claim within
Admiralty jurisdiction may be enforced by an action in personam. "Action in rem"
1.10 The action in rem is the second half of the dual key to English Admiralty
jurisdiction. This action is available only in the Admiralty jurisdiction. Its
characteristics are complex, reflecting the current state of an unfinished development in
which legislation has played a leading but not exclusive part. The Supreme Court Act
1981
1.11 The Supreme Court Act does not state in express terms that an action in rem
can only be brought as specified by it—but in English law its availability is restricted to
those claims in relation to which the Act provides that it is available. The Act provides
(in section 21) that an action in rem may be brought in relation:
(a) to the claims set out in s.20(2) paras (a) –(c) and (e)–(s);
(b) any maritime lien;
(c) any claim enforceable thereby in the future or (arguably) in the past. 9 1.12
Only in relation to one claim specified in section 20(2) does the Act not
provide for an action in rem—"damage received by a ship" (section 20(2)(d)). The
action in rem is available for all other claims but its scope is not identical i n respect of
each. The Act does not define an action in rem. But it indicates a traditional central
theoretical feature in providing that such an action is brought " against" the ship or
property in question (i.e. against a thing rather than, as with the a ction in personam,
against a person). However, any thought that this may exclude a person having a relevant
interest in the ship as a defendant has disappeared with the approach adopted by the
House of Lords in 1997 in The Indian Grace (No. 2).10
1.13 The essential elements of the action in rem lie in its development over at least
two centuries as the hallmark of Admiralty jurisdiction, and it is perhaps surprising that
they are still not finally settled. Historically they are inextricably connected wit h the "
maritime lien"—the other half of the dual key. 2. Sources outside the Supreme Court
Act 1981
1.14 It is obvious even from this brief summary that the Act provides, at best, a
skeletal framework. The search for sources cannot be restricted to judici al development
of Admiralty jurisdiction only, for the Admiralty Court is a court within the Supreme
Court of Judicature. As such, it is commanded to apply principles and rules applied by
other courts within that structure—it must take into account rules of common law and
equity and statutory provisions.
1.15 It follows that before plunging below the surface of the Admiralty provisions
of the Supreme Court Act 1981, its provisions should be put in the context of the court
structure and once below the surfac e the effect of that structure on the rights and
remedies in the maritime area should continually be borne in mind. The Supreme Court
Act 1981 continues basic provisions of the Judicature Acts of 1873, in providing that,
subject to other statutory provisions, every court in England shall continue to apply
principles of equity and common law with the former taking precedence in any conflict.
Admiralty, Common Law and Equity
1.16 English maritime law is based on Admiralty but is connected with common
law and equity. Since 1873 the Admiralty Court has been part of a structure
administering the " branches" of English law called common law, equity and Admiralty
and each branch is authorised to apply common law and equitable principles. These
principles are at the command of the Admiralty Court as of any other Division of the
High Court. But the union of the courts does not mean the translation of interests from
one source to another. The right or remedy must be applicable by virtue of its substance —
and so classification of rights and remedies in English law has to start with reference to
their common law, equitable, or Admiralty roots. Common law and equity
1.17 Common law has its roots in custom and precedent (in rules accepted by
parties as " common" to a dispute). The doctrine thereby established through Kings’
courts taking over from local courts by the end of the thirteenth century contains many of
the fundamental principles of English law. They are still not contained in any st atute but
remain common law rights, liabilities and interests.
1.18 Even when the court structure was becoming established it was recognised
that the King could dispense justice where the law was defective or for some reason a
party could not obtain the remedy which the law provided. At an early stage petitions
for justice were referred by the King to the Chancellor and from this practice "equity"
grew. As it grew, so there developed the Court of Chancery sowing the seeds for the
conflict with courts of common law. In the seventeenth century the dispute was settled in
favour of the ability of Chancery Courts to control the bringing of common law actions
where this was warranted on grounds of justice.
1.19 In the nineteenth century came the radical restructuring of a court process
which had burdened itself with complexity, particularly because of the twin structures of
common law and equity. The Judicature Acts of 1873 and 1875 created the origins of
the English courts as we know them today—one system administering both common law
and equity. But the substantive distinctions of common law and equitable rights,
liabilities and interests remained. Equitable intervention in the common law
1.20 Equitable intervention took three primary forms. First, equity recognised
those interests established at common law but with less formality than the common law
required11; secondly, it created interests entirely unknown to the common law 12 and
thirdly it provided equitable remedies such as the injunction and specific performance
to add to the basic common law remedy of damages. However, the enforceability of
equitable interests is less wide in scope than that of common law (or "legal") interests.
A legal interest in a thing once created is enforceable against all persons claiming
interests subsequently created. An equitable interest is enforceable against subsequent
common law interests only if their holders take the later interest with notice of the
equitable interest.13 The principle is based on equity: interference with common law on
the basis of "justice" and hence requiring notice of an equitable interest by a subsequent
common law interest holder as a prerequisite for enforcing it against the later inte rest.
The effect of registration requirements
1.21 To some extent the rules of enforceability or "priority" are now affected by
registration requirements. In some contexts (e.g. ship mortgages) priority between
registered interests depends on the date of r egistration. An unregistered interest may run
the risk of defeat by a later registered interest. The effects of registration vary according
to particular applications of the principle. 14 Admiralty
1.22 The Admiralty Court developed independently, havi ng its own battle with
common law courts over jurisdictional boundaries. During the eighteenth and early
nineteenth centuries its influence and power decreased, but through statutes of 1840 and
1861 the court received a firm foundation on which it has buil t since. It came in from the
cold into the general union of courts in 1873 –75 and is now integrated into the High
Court, being a branch of the Queen’s Bench Division.
1.23 Admiralty had—and has—its own rights and remedies just as equity and
common law. By its very nature its doctrines were applicable within an area defined by
content and within that area it provided rights and remedies not available outside. The
maritime lien and action in rem are prime examples.
1.24 Once under the umbrella of the unified court structure, common law and
equitable principles became directly available in the Admiralty Court. No longer need
claimants have to seek these elsewhere and no longer did jurisdictional boundaries
necessarily indicate the availability of substantive rights and remedies.
1.25 So from division between common law, equity and Admiralty came
connection, and from both division and connection spring the relevance of both common
law and equitable doctrines. Differences between divisions of the High Court 15 do not
necessarily mean the availability only of the doctrine created by the ancestor of that
division. It may mean only that a claimant must go to the appropriate division or e ven
that having started in one division the case will not remain there. Conversely,
connection does not necessarily mean disappearance of difference —it may mean only
that all that is now obtainable is that which was obtainable before union. But after union
it is all available in one place—in respect of Admiralty claims, either the Admiralty or
Commercial Court (see Chapter 2). Statutes, Judicial Creativity and Admiralty
1.26 A primary legal source in maritime law, as well as judicial development, as
in all branches of English law, is statute. Statute law controls the courts and, apart from
directly effective or applicable provisions of the legislative framework of the European
Union,16 cannot be questioned by the courts.
1.27 As will be obvious from the impa ct of common law and equity, much of
English law is rooted in judicial initiative. As is to be expected there have been periods
of great judicial creative activity and periods of "conservatism" when the assertion of
rights depended on proof of previous rec ognition.
1.28 At the present stage of development judicial creativity depends largely on the
predilection of the individual judge, and such as there is occurs largely in the context of
equity.17 The great age of judicial creation at common law has long gone and in most
instances the existing framework could be radically changed only by statute.
Nevertheless there may be changes in the application of general concepts, such as the
duty of care in negligence or even direct reversal of approach as the law keeps pace
with commerce or social development. 18
1.29 The framework (if not the details) of claims and interests in the maritime area
is on the whole firmly established. It will be found partly in s tatute and civil procedure
rules and partly in judicial doctrine. To a much greater extent than other areas of English
law it has been directly influenced by Civil law and on occasion courts have relied on
the uniformity of maritime legal principles as bet ween nations as part of their reasoning.
It has also been greatly influenced by the focus of maritime cases in the Admiralty Court
and the relatively small number of judges of that court since the eighteenth century,
although such a singular focus is latterly affected by the part played by judges of and in
the Commercial Court.
1.30 English law lacks a fully comprehensive maritime code. Present day doctrine
in part still reflects its origins. Court integration and statutes have had substantive effect
in ironing out conflicts. However, English " maritime law" is still rooted in statute,
procedure rules and judicial doctrine of Admiralty, common law and equity. The
consolidation in the Merchant Shipping Act 1995 of the Merchant Shipping Acts,
however, goes far to provide a code of substantive rules but it is regrettable that it does
not at least contain a reference to maritime issues appearing in other statutes. The
critical connection between security for a claim and juris diction means that jurisdiction
cannot be seen as a self-contained matter, and there seems no good reason why such
codification as there is should not extend to all aspects of maritime law which are
distinct from rules applicable to claims in general.
1.31 The list of claims of the Supreme Court Act 1981 includes claims founded on
other statutes and directed by the rules of court to the Admiralty Court ( see para. 1.3).
Jurisdiction may, however, be conferred directly 19 by statutes and, however conferred,
may be limited by the requirements of links between an issue and England or Scotland
or other matters such as time limitations. Such provisions are particularly relevant to
claims based on Conventions and their enactment. 20 Statutes as to a Jurisdictional
Source
1.32 Much of the recent development in maritime law has its roots in Conventions
as enacted into English law. Some of these are linked to membership of the European
Union or Economic Area, others having their origin in the United Nations Conference on
Trade and Development (UNCTAD) or the International Maritime Organisation (IMO).
In the main the Conventions are concerned with substantive rules of law and on
occasion these contain enforcement provisions (particularly jurisdiction). There are
some which are concerned primarily and directly with enforcement, with two being
directly relevant to the process for resolving disputes —the New York Convention 1958
on arbitration (see Chapter 13) and the European Convention on Human Rights insofar
as it confers a right of access to a court and a fair hearing ( see para. 0.15)
1.33 The development of the laws of the United Kingdom has been critically
affected by membership of the European Uni on, that membership being statutorily
recognised through the European Communities Act 1972 and its amendments to
incorporate the increase in membership. The laws of the Union (European law) govern
the laws of Member States, and include extensions to the Eu ropean Economic Area.
1.34 So Regulations, Directives and Decisions of the relevant Union institution
will obligate states to apply them insofar as they are binding. In the United Kingdom
these are generally implemented by statutory instrument 21 but even if not, Regulations
Directives having direct effect and Decisions confer enforceable rights and
obligations.22 The effect in the maritime area is mainly concerned with the regulation of
maritime activities in the light of Community obligations 23 but the jurisdiction (including
that over maritime claims) is fundamentally affected by Council Regulation 44/200 1
(the "Regulation" ).
1.35 The Regulation applies to proceedings started after 1 May 2002 and as
between all Member States save Denmark, supersedes the Brussels Convention on
Jurisdiction and Judgments 1968. That Convention applied to all Member States it being
amended to incorporate the accession of states to the Union. The Regulation was
amended to adapt to the accession of the ten new members on 1 May 2004.
1.36 In 1988 the EU Member States entered into a Convention with Member States
of the European Free Trade Association (EFTA) save Liechtenstein (the Lugano
Convention) parallel to the Brussels Convention, and this Convention continues to
operate alongside the Regulation 44/2001 and the Brussels Convention. While the
Brussels Convention and the Regulation have a unifying court in the European Court of
Justice there is no such court in relation to the Lugano Convention. 24
1.37 The only Conventions specifically concerned with jurisdiction over maritime
claims in general are those on Arrest of Sea Going Ships but an increasing number of
other Conventions focused on a particular aspect of maritime law (e.g. carriage of
goods and passengers) include jurisdiction provisions. So the Athens Convention 1974
(covering the carriage of passengers and luggage) has specific provisions and the
Hamburg Rules 1978 include a comprehensive jurisdiction scheme. It follows that
national jurisdiction rules may be subjected to these particular jurisdiction requirements
insofar as these are in force and have been incorporated into national law.
1.38 Further, over the years many states have entered into bilateral and multilateral
Conventions regarding jurisdiction or recognition of judgments in general. In the case of
the United Kingdom, the emphasis has been on a network of bilateral Conventions
providing for the mutual recognition and enforcement of judgments between the United
Kingdom and another state. They are given force in English law largely through the
Foreign Judgments (Reciprocal Enforcement) Act 1933. Such Conventions apply to
maritime claims as to any other claims.
1.39 Of the Conventions introducing jurisdiction and judgment frameworks
applicable to claims in general, the most far -reaching are the European Community
Convention on Jurisdiction and the Recognition and Enforcement of Judgments on Civil
and Commercial Matters 1968 (as amended) and the parallel Convention entered into in
1988 between the then Member States of the European Community and the European
Free Trade Association (save Liechtenstein). The EC Jurisdiction and Judgments
Convention 1968 (as amended) (the Brussels Convention)
1.40 The Convention establishes a comprehensive jurisdiction and judgments
structure in respect of "civil and commercial" matters insofar as a dispute does not fall
within one of the exceptions specified within Article 1(1) of the Conv ention. The
interpretation of the Convention is within the jurisdiction of the European Court of
Justice.25
1.41 The Convention required a fundamental rethinking in English law in respect of
jurisdiction in cases with a foreign element and, perhaps to a le sser extent, recognition
and enforcement of judgments. Insofar as matters fall within the scope of the
Convention, jurisdiction in English law no longer can be founded simply on the
presence of a person or property but on the existence of a substantive connection
between the dispute and England. The recognition and enforcement of a judgment from a
contracting State in England is subject only to grounds of refusal specified in the
Convention.
1.42 Maritime claims fall within civil and commercial matters and are thereby
covered by the Convention. Subject only to exclusion of "public law" matters and
arbitration, enforcement of any maritime claim falling within the subject -matter of the
Convention and raising a question of jurisdiction in relation to another contracting State
will be governed by it. The Convention was incorporated directly into English law by
the Civil Jurisdiction and Judgments Act 1982. T he Act came into force on 1 January
1987.
1.43 Any state becoming a member of the European Community (now the European
Union) was under an obligation to become a party to the Convention. As additional
States joined so the text was amended by statutory inst rument.
1.44 The current text is that which reflected the accession of Austria, Finland and
Sweden. Unless and until Regulation 44/200 1 is extended to Denmark 26 that text
continues to govern the relationship between Denmark and other Member states and that
with the Lugano Convention. It is set out in SI 1824/2000 and came into force on 1
January 2001. Council Regulation 44/2001 on jurisdiction and judgments
1.45 The Regulation follows a similar pattern to the Brussels Convention. The
Civil Jurisdiction and Judgments 1982 was adapted as from 1 March 2002 to
incorporate the Regulation and to provide for the continuing force of the Brussels
Convention (SI 2001/3928, 3929). There are some changes from the Conve ntion. A
critical change prohibits Member States from entering into any other Convention as from
1 March 2002 inconsistent with it, thereby raising issues of ratification by Member
States of multilateral maritime conventions containing provisions for juris diction or
judgments (see Chapter 4). The EC and EFTA Jurisdiction and Judgments Convention
1988 (the Lugano Convention)
1.46 The Lugano Convention was enacted in the United Kingdom in the Civil
Jurisdiction and Judgments Act 1991 amending the 1982 Act whi ch continues to operate
alongside Regulation 44/2001, the Act being amended accordingly. In 2003 the Council
authorised the Commission to enter into negotiations for a "new" Lugano Convention
without prejudice to the resolution of whether this is a matter for the exclusive
competence of the Community or shared with Member States. On 27 February 2003 the
Council agreed to seek an opinion from the Court of Justice on this issue. The Civil
Jurisdiction and Judgments Act 1982 (as Amended) and Order 2001 and Maritime
Claims
1.47 In terms of English law the Civil Jurisdiction and Judgments Acts 1982 and
its amendment of 1991 is a radical measure affecting English jurisdiction and
recognition and enforcement of judgments. Not only did the Act incorporate the Brusse ls
and Lugano Conventions into English law, it adapted the former so as to allocate
jurisdiction as between England, Scotland and Northern Ireland in relation to disputes
connected only with the United Kingdom but not limited to one part of the United
Kingdom; secondly, the Act revised and extended the statutory framework for
recognition of judgments as between parts of the United Kingdom. It is adapted to the
EC Regulation 44/200 1 (SI 200 1/3929).
1.48 The Act applied to maritime claims and in some instan ces introduces rules
specifically geared to such claims. As a consequence the Act must be at the forefront of
the mind of those concerned in the enforcement of any maritime claim in any part of the
United Kingdom or before a court of a contracting State. T he jurisdiction framework is
brought into play by the presence of one of a number of varied links between the dispute
and the claim and, in particular, the domicile of the defendant in a contracting State or a
jurisdiction agreement opting for a contracting State. Secondly, a contracting State is
under an obligation to recognise a judgment of another contracting State simply because
it is such a judgment. There is no further link required. So the fact that a plaintiff has no
connection with a contracting State with be irrelevant unless such a link is specified.
1.49 The Act is therefore a central feature of jurisdiction and recognition and
enforcement of judgments in English law. This book will consider the frameworks
introduced by the Acts as it applies to the enforcement of maritime claims both as an
aspect of their general application and their effect on Admiralty jurisdiction in English
law. 3. Conclusion
1.50 The Supreme Court Act 1981 provides a starting point for the voyage of
discovery on Admiralty waters in its coverage of the general court structure and
principles applicable and in the listing of Admiralty claims. 27 However, it links
enforcement of maritime claims to concepts of which it provides the barest of details —
the action in personam, action in rem and maritime lien. Secondly, it provides little
guidance to available remedies or to the security aspects of Admiralty claims which are
their distinguishing features or to developments based on Conventions. Thirdly, all
domestic jurisdictional provisions are subject to Regulation 44/2001 and the Brussels
Regulations and Lugano Convention. Let us start, however, with the claims which are
within Admiralty jurisdiction. The scene should then be set for examination of their
jurisdictional, remedial and security aspects and a connecting link between those
aspects and "liens" .
1. The Act provides that the Admiralty Court is part of the Queen’s Bench Division
(one of three divisions) (s.6(i)(b)), and that not surprisingly it wi ll take Admiralty
business (s.62(2)). Appeal lies from it to the Court of Appeal and thence to the House of
Lords. Admiralty jurisdiction is primarily dealt with in ss.20 –24 (see Appendix 1).
Specified claims within the Admiralty jurisdiction must be broug ht in the Admiralty
Court, the remainder may be started in that court, but may be transferred to any other
appropriate court CPR, Pt 61 (see Chapter 9). As to Scottish Admiralty jurisdiction see
Administration of Justice Act 1956, Part V (set out in Append ix 1). As to enforceability
of maritime claims through arbitration, see Chapter 13.
2. The limited Admiralty jurisdiction conferred on some county courts was
removed in regard to proceedings commenced or transferred on or after 26 April 1999
(SI 1999/10 11).
3. For discussion see Chapter 2.
4. That is, as enacted by statute ( see further Chapters 3 and 4). For a rather
dubious approach construing a Convention in accordance with English law see The
River Rima [1988] 2 Lloyd’s Rep. 193 (H.L.)—as to which see Chapter 2.
5. The provision refers to "maritime lien or other charge". For discussion, see
Chapter 2.
6. For discussion, see Chapter 9 (in personam), Chapter 10 (in rem). As to the
terminology of the CPR in the replacement of "in personam" by "other" and its scope
see para. 0.5.
7. As to which, see Chapters 9 and 10.
8. The concepts of "in personam" and "in rem" in an Admiralty context must be
distinguished from their use to differentiate between actions enforceable against an
individual (in personam) and the world (in rem)— although the usage is not
unconnected. Under the CPR the terminology focuses on "claim" rather than bringing "an
action", but statutorily the phrases action in personam and in rem remain.
9. As to the wording of these provisions and their interpretations, see Chapter
2.
10. [1998] 1 Lloyd’s Rep. 1. See Introduction and Chapter 10.
11. Compare e.g. a chattel mortgage at common law requiring transfer of title to a
chattel, with an equitable mortgage through deposit of documents of title.
12. As, for example, the most used, the trust in which traditionally the beneficial
interest (in the beneficiary) is separated from the operating or management interest (the
trustees), but modern developments have sought to use the trust as a shell for tax
avoidance or financing purposes. Some interests (e.g. equitable lien) bear a superficial
resemblance to common law interests but in substance are quite distinct (compare
equitable with possessory lien). See Chapters 17, 18, 19.
13. So, for example, a purchaser of a chattel subject to an equitable lien would be
bound by the lien, only if he knew of the lien when he bought.
14. As to the application of registration requirements in Admiralty, see Chapter 17.
15. Now Chancery, Queen’s Bench (including the Commercial Court and
Admiralty Court) and Family (Supreme Court Act 1981, s. 5).
16. EU legislation consists of Community treaties between the member States,
Agreements of Association and co-operation with other states, Regulations (directly
applicable), Directives and Decisions —which may be directly effective.
17. As e.g. the Mareva (now "freezing") injunction ( see Chapter 16) and the
development of the anti-suit injunction (see Chapter 25).
18. See e.g. the recasting of the action in rem by the House of Lords in The Indian
Grace (No. 2) (see Chapter 10).
19. See e.g. Merchant Shipping Act 1985 Sch. 3A, para.16 (as amended by Marine
Safety Act 2003)—it would seem unnecessarily as all claims under the Merchant
Shipping Act 1995 must be started in the Admiralty Court ( see Chapter 9).
20. See Chapter 2.
21. See e.g. Recreational Craft Regulations 2004 (SI 2004/1464); Ship and Port
Facility (Security) Regulations 2004 (SI 2004/1465; Merchant Shipping (Hours of
Work) Amendment Regulations 2004 (SI 2004/1469); Merchant Shipping (Passenger
Ships on Domestic Voyages) Regulations 2000 (SI 2000/2687 — amended by SI
2004/1107).
22. See e.g. Marks and Spencer plc v. Customs and Excise Commissioners (ECJ)
Case-62/00 [2003] 2 W.L.R.
23. As e.g. prohibiting differences in harbour dues if not objectively justified as
between domestic or inter Community traffic and traffic between a member State and a
third country Geha Naftiliaki EPE v. NPDD Limenko Tamio Dodekanisou (Case C-
435/00) [2003] 1 All E.R. (Comm.) 45; limiting the rights of states to limit to its
nationals (a) masters and chief mates (Colegio de Officiales de la Marina Merchant
Epsilon v. Administracia del Estado (ECJ) Case 405/01), or (b) shareholders or
directors in companies owning ships registered in a member State ( Commission v.
Netherlands (ECJ) Case C-299/02.
24. There is provision for other States to become parties. For current parties see
Chapter 8.
25. 1971 Protocol Art. 1.
26. For current Member States see Chapters 4, 8.
27. It must not be forgotten that a claimant may opt for arbitration as a method of
enforcement—which raises questions of the applicability of substantive and remedial
rules. See Chapter 13.
Chapter 2
The Nature of Maritime Claims

2.1 The phrase "maritime claim" is used in the Conventions Relating to the Arrest
of Sea Going Ships 1952 and 1999 as the general label describing all the claims in
relation to which a ship may be arrested under the Convention. In English law the
phrase has no technical meaning but in this work it is used to describe those claims
which are within the Admiralty jurisdiction of the High Court. 1
2.2 Admiralty jurisdiction is based on the provisions of the Supreme Court Act
1981 and some other statutory provisions. The jurisdictional provisions of that Act are
exclusive, subject to subsequent statutory provisions either amending the Act or
providing a jurisdictional foundation independent of the Act. However, as will be seen,
the Supreme Court Act 1981 encompasses jurisdiction past, present and to an extent
future.
2.3 Section 20(1) of the Supreme Court Act 1981 provides for four jurisdictional
heads and section 20(2)–(6) elaborates on these heads. In addition, section 21(3)
appears to provide or at least recognise a jurisdictional base (i.e. maritime lien) not
referred to specifically in section 20. The provisions are set out in Appendix 1. 1.
Heads of Jurisdiction—The Framework of the Supreme Court Act 1981 Section
20(1)(a), (2), (4), (5), (6)
2.4 Section 20(2) of the Supreme Court Act sets out a list of categories of claims
within Admiralty jurisdiction. The provisions of section 20(4), (5), (6) elaborate on
three of these categories. These claims are examined later in this chapter. Section 20(1)
(b), (3)
2.5 These provisions list three categories of "proceedings" within Admiralty
jurisdiction. These proceedings are dealt with later in this chapter. Section 21(3)
2.6 This provision appears in the section headed "mode of exercise of Admiralty
jurisdiction". Nevertheless it recognises "maritime lien" as a jurisdictional ground, a
ground not specified in section 20 —the section purporting to set out the grounds of
jurisdiction. The claims attracting maritime liens will be examined later in this chapter
and the concept of the maritime lien in Chapter 18. Section 20(1)(c)
2.7 Not only has the Admiralty Court the jurisdiction substantively provided by the
Supreme Court Act 1981 but through that provision "any o ther Admiralty jurisdiction
which it had immediately before" 1 January 1982. Section 20(1)(d)
2.8 The provision looks to the future in providing that the jurisdiction includes that
of the High Court "connected with ships or aircraft" assigned to the Queen’ s Bench
Division by rules of court 2 and directed by the rules to be exercised by the Admiralty
Court. (i) Application of the Framework Despite Foreign Connections (Section
20(7))
2.9 Section 20(7) of the Supreme Court Act 1981 provides:
"(7) The preceding provisions of this section apply—
(a) in relation to all ships or aircraft, whether British or not and whether registered
or not and wherever the residence or domicile of their owners may be;
(b) in relation to all claims, wherever arising (including, in the case of cargo or
wreck salvage, claims in respect of cargo or wreck found on land); and
(c) so far as they relate to mortgages and charges, to all mortgages or charges,
whether registered or not and whether legal or equitable, including mortgages and
charges created under foreign law.
Provided that nothing in this subsection shall be construed as extending the cases in
which money or property is recoverable under any of the provisions of the Merchant
Shipping Act 1995." Jurisdiction
2.10 The provision prevents objection to jurisdiction based on the foreign
connections specified in it. It does not provide positive jurisdictional rules. Such rules
are to be found in other statutes, rules of court, judicial development and, to some
extent, in the Supreme Court Act itself. The applicable law
2.11 As with jurisdiction so with the law applicable to any issue. The provision is
essentially negative, removing any objection based, for example, on a contention that a
claim on a foreign mortgage could not fall within section 20. Whether or not a foreign
law does apply to a mortgage is a question for the English conflicts process. (ii)
Jurisdiction Based on the past and the Future
2.12 Before examining the specific claim s making up the Admiralty jurisdiction it
is as well to deal with general jurisdiction —first looking to the past and secondly to the
future. A. Looking to the past The “sweeping up” clause—“any other jurisdiction which
it had immediately before the commenc ement of this Act” (section 20(1)(c))
2.13 The reference to jurisdiction "immediately before the commencement of" the
Supreme Court Act 1981 (which came into force on 1 January 1982) means that the
Administration of Justice Act 1956 is incorporated into the Act of 1981 as a secondary
jurisdictional base. In particular, it would seem that any specific conferring of
jurisdiction by that or any Act subsequent to that of 1956 or any jurisdiction retained by
the Act of 1956 through its own sweeping up provision remains in force along with the
jurisdiction specifically conferred by the Act of 1981.
2.14 It is arguable therefore that any reduction of jurisdiction by the Act of 1981 is
thereby outflanked. However in The Antonis P. Lemos 3 Parker L.J. thought (without
deciding) that the provision did not encompass actions in rem, as section 21 of the 1981
Act set out the claims for which an action in rem would lie. Against that view it may be
argued that "jurisdiction" when referring to the past may well include not only the claim
but the type of action by which it could be enforced. It may be preferable to restrict the
backward look particularly in the light of the increasing coincidence of English and
other laws through Conventions. In any event the continuation of past jurisdiction does
not mean that jurisdiction presently plainly set out should be interpreted in the light of
past history. Jurisdiction conferred specifically by the Act of 1 956—“damage received
by a ship” (section 20(2)(e))
2.15 Under the Act of 1956 an action in rem would lie on the basis for a claim for
"damage received by a ship". The Act of 1981 following the view expressed in The
Jade4 limits this ground to the foundation for an action in personam. But subject to the
argument that only jurisdiction in personam is retained, may it not be argued that an
action in rem may still be brought because it could be brought immediately prior to th e
Supreme Court Act 1981?
2.16 The objections advanced in the House of Lords in respect of the availability
of an action in rem because of the nature of the claim would still apply. In expressing
the view that an action in rem was not available Lord Diplock said that to bring it the
claim must be "in connection with a ship" and in a claim based on damage received by a
ship the ship would be that of the claimants. "They cannot involve the Admiralty
jurisdiction by an action in rem against their own ship."
2.17 This argument, however, appears first to ignore an action between owner and
charterer where either may wish to bring an action in rem against the ship as a weapon
against the other, particularly in the light of the ability to bring an action in rem against
and arrest a sister ship. Further, it may not be too far fetched to postulate an owner
whose yacht is taken without permission and who wished to bring an action in rem
against a ship owned by the wrongdoers. It is, therefore, suggested that the quest ion of
the resurrection of the action in rem in relation to damage received by a ship is by no
means purely academic. The sweeping up provision of the Administration of Justice Act
1956
2.18 The provision retains jurisdiction which (i) "is conferred" on th e High Court
by or under an Act coming into force on or after 1 November 1875 or (ii) was vested in
the High Court immediately before that date.
Jurisdiction conferred by statute
2.19 In 1968 in The Queen of the South 5 Brandon J. suggested that this provision
included jurisdiction conferred by Acts since 1875 although those Acts had been
repealed. With respect it does seem that the Act of 1956 refers only to statutory
jurisdiction which is extant—in contrast to any jurisdiction that "was" vested in the
High Court prior to 1875. Prime examples of such statutory jurisdiction are found (a) in
the Supreme Court Act 1981 itself as a successor to the Judicature Acts 1873 and 1875
conferring the powers exercisable by other divi sions of the High Court on the Admiralty
Court and (b) the Civil Jurisdiction and Judgments Act 1982 conferring an extended
power of arrest in Admiralty proceedings.
Non-statutory jurisdiction (“that was vested” prior to 1 November 1875)
2.20 This may be relevant in two ways—first in construing a head of claim in the
Act of 1981 and secondly in respect of matters not referred to in that Act.
Construction of heads of claim in Supreme Court Act 1981
2.21 Such construction may be based either on modern developments or
(particularly if it should be argued that the jurisdiction is now narrower in scope than it
was prior to 1875) on the sweeping up clause. In The Zeta6 (decided in 1893) Lord
Herschell construed the jurisdiction over "damage" in terms of jurisdiction exercised in
Admiralty prior to 1840.
Jurisdiction not referred to in Supreme Court Act 1981
2.22 In The Tubantia7 (decided in 1924) Sir Henry Duke relied on the "undisputed
jurisdiction" of the Court of Admiralty in respect of "injurious acts on the high seas" —
in that case interference with salvage operations in respect of a wreck. More recently in
1982 in The Despina G.K. 8 Sheen J. relied specifically on the sweeping up clause in the
Act of 1956 as applied by the sweeping up clause of the Supreme Court Act 1981 in
deciding that a foreign judgment in rem can be enforced in the English Admiralty Court
by an action in rem. Sheen J. followed the principles set out by Sir Robert Phillimore in
1879 in The City of Mecca9—those principles presumably being deemed by Sheen J. to
be those applicable prior to 1 November 1875.
2.23 The power to hear claims arising out of respondentia —the charging of cargo
to obtain credit to continue or start a voyage from a foreign port —is not referred to
specifically in the Act. It is arguable that it is included in "bottomry" —the charging of
the ship or ship and cargo for the purpose mentioned, but this can hardly fit with the
provision that a claim in bottomry is exercisable against a sist er ship.10 It is also
perhaps arguable that it is included through the general label of "maritime lien". If
neither of these concepts may be said to include it, it was clearly within the Admiralty
jurisdiction prior to 1875. 11
2.24 Admiralty jurisdiction includes general powers inherent in the court such as
the ability to prevent abuse of process. In an Admiralty context this has been held to
include the ability to ensure that security demanded to prevent arrest is not excessive. 12
These examples illustrate that the statutory framework does not draw all the boundaries
or spell out all the Admiralty territory within the boundaries that it does draw. B.
Looking to the Future Jurisdiction assigned to the Admiralty Court by Rules of Court
(section 20(1)(d))
2.25 The Admiralty Court jurisdiction includes any jurisdiction "connected with
ships or aircraft" assigned to the Queen’s Bench Division by rule of court made or
coming into force after 1 January 1982 and directed by the rules to be exercised by the
Admiralty Court. The provision thus allows for the extension of jurisdiction in
Admiralty by rule of court rather than by statute. 13 2. Other Than the Supreme Court
Act 1981
2.26 The curiously limited phrase in section 20(1)(d) of the Supreme Court Act
1981 seems to exclude other heads created by statute or statutory instrument. It may be
that reference to statute in s.20(1)(d) is strictly unnecessary in that such jurisdiction may
be conferred by any statute of its own force. Further, any restri ction imposed by the
focus on assignment by the rules is offset by the provision in the rules that all "claims"
under the Merchant Shipping Act 1995 must be started in the Admiralty Court. So any
dispute as to whether a claim is an "application" within s.2 0(1)(b) and 20(5), (see
2.230 ), becomes irrelevant because of inclusion in s.20(1)(d). 14
2.27 However, the omission fails to build on the statutory adoption of jurisdiction
heads which formerly appeared only in rules of court ( see 2.225) and is another
regrettable example of the lack of any concept of codification.
2.28 That statutory provision is preferable and a wider approach needed is
underlined by Part 61 of the Civil Procedure Rules —"Admiralty Claims". Such claims
are there defined as those "within the Admiralty jurisdiction of the High Court as set out
in section 20 of the Supreme Court Act 198 1". 15 So where stand the claims in relation to
which there is no reference in the Act or the rules? 16 A simple legislative amendment to
the 1981 Act would serve to create a clear and uniform jurisdiction base.
2.29 As a result, provided any new action is through the 1995 Act or assigned by
the rules to the Admiralty Court there will be no dispute as to Admiralty jurisdiction. It
remains regrettable, however, that the basic structure does not encompass all possible
jurisdiction heads, and that any statutory provision without an accompanying rules
assignment will fall outside it. 3. Categories of Enforceability
2.30 The Supreme Court Act 1981 provides for two methods of enforcement of
claims listed in it (1) by action in rem and (2) by an action in personam. The majority
of claims are enforceable by both types of action and no claim is enforceable by an
action in rem only. Claims Enforceable by Action “In Rem”17
2.31 Claims enforceable by action in rem can be divided into four categories
according to the scope of their enforceability:
(i) claims attracting a maritime lien or "other charge" on the relevant property
(s.2 1(3));
(ii) claims enforceable by an action in rem against the relevant property (s.21(2));
(iii) claims enforceable by an action in rem against the relevant ship or "sister
ship" provided certain conditions in relation to liability in personam are met (s.21(4));
(iv) claims within the sweeping up clause if not falling within (i) –(iii) above.
2.32 As a claimant’s enquiry will be directed essentially at the enforceability of
his claim and the remedy available in respect of it, the claims will be reviewed using
these categories as a base. However, it must be stressed that all the claims are
enforceable in personam, the only importance of Admiralty jurisdiction in this context
being the ability to bring the claim before the Admiralty Court as distinct from some
other branch of the High Court. The expertise of that court may be valuable and in
certain types of action (e.g. collision and limitation actions) Admiralty procedure
essential. Effect of establishing a limitation fund
2.33 Under the Merchant Shipping Act 1995, in accordance with the Conventions
on Limitation of Liability for Maritime Claims 1976, for Civil Liability for Oil
Pollution Damage 1992 and when in force Liability and Compensation f or Damage in
Connection with the Carriage of Hazardous and Noxious Substance by Sea a shipowner
or other specified person is entitled to limit liability and establish a limitation fund. The
fund becomes in most cases the exclusive targ et for claimants and other security either
must or may be released. The distribution of the fund is in proportion to the claims and
no lien or other right may affect it. In such cases although the claim may be in rem the
end result is fundamentally affecte d as to the priority of claims. (See Chapter 24.) (i)
Claims attracting maritime lien or “other charge”
2.34 These claims are treated as a special category by the Supreme Court Act 1981
inasmuch as they are singled out as a group for which an action in rem may be brought
against any ship or other property in which there is "a maritime lien or other charge". 18
The provision must be read as referring to claims which, if successful, attract a
maritime lien—for the maritime lien is for the claimant to establish. However, the
maritime lien if established attaches from the event on which the claim is based ( see
Chapter 18).
2.35 The claims so qualifying are not statutorily defined or even referred to as
such. Their nature and their legal characteristics must be sought in judicial development
and earlier statutory provisions. As will be seen, the claims attracting maritime liens
are included in section 20 of the Supreme Court Act 1981 as claims within the
Admiralty jurisdiction but simply as claims and not as "maritime lien" claims. They
qualify both as maritime lien claims and as claims for which an action in rem will lie
but which do not attract a maritime lien (group (iii) below).
2.36 The English list of claims accepted as attracting maritime liens is relatively
short and is mainly judicial in origin. 19 The category of "maritime lien" was established
only in 1851 in the case of The Bold Buccleugh,20 and the characteristics of the
category represent no organised creation of a concept. Rather they represent distinct
causes of action linked by twin common factors:
(i) enforceability against purchasers as from the date of creation of the claim; and
(ii) priority over other creditors .
2.37 Added to these must be the availability of arrest and forced sale and the
ability to use arrest as a jurisdictional ground —but such features are also features of
statutory liens. As the ambit of the "statutory lien" is that of the action in rem most—but
not all—maritime claims fall within it (see infra).
(a) Uncertainties of maritime liens
2.38 It is the connection with and the distinction from Admiralty jurisdiction which
causes constant confusion in trying to draw a certain boundary line around the category
of claims attracting a maritime lien. Given that not every claim enforceable by an action
in rem attracts a maritime lien, the relatively late development of the concep t of the
maritime lien, and the loose judicial use of the term "lien" it is often difficult to state the
effect of decided cases with any confidence. This is particularly so in relation to those
decided prior to the emergence of the category of maritime li ens and early authorities
are, therefore, to be treated with some suspicion.
2.39 It is now accepted that in English law maritime liens attach to claims for:
(i) salvage;
(ii)damage done by a ship;
(iii) seamen’s wages;
(iv) masters’ wages;
(v) masters’ disbursements;
(vi) bottomry and respondentia.
2.40 All these claims, save respondentia, also appear in section 20 of the Supreme
Court Act 1981 and may qualify for enforcement as both maritime lien and non -maritime
lien claims. Whether both routes are available and which is preferable depends on the
circumstances. (See infra and Chapter 23.) The claims listed in section 20(1) within the
categories attracting a maritime lien may not always be confined to the lien claim —as,
for example, damage caused by a ship or the amended category of salvage. Further, in
addition to those listed in (i) to (vi) there are a number of claims in respect of which it
is arguable that maritime liens are attached. These will be referred to after ex amining
the "established" list and its relationship to the claims set out in section 20.
(b) Foreign maritime liens
2.41 It is established that English law recognises only those maritime liens that are
equivalent to its own. 21
(c) Maritime liens and extension of jurisdiction by statute
2.42 The question of whether principles applied in inherent or non -statutory
jurisdiction of Admiralty are carried through to statutory extensions of Admiralty
jurisdiction was a critical issue following the Admiralty Court Acts of 1840 and 1861.
It remains relevant today in the context of later statutes. 22 A fundamental general
question in relation to the extension of Admiralty jurisdiction by the Acts of 1840 and
1861 was the degree to which, if at a ll, the extensions of jurisdiction meant extension of
maritime liens. In 1976 in The Halcyon Skies 23 Brandon J. summed up the eventual
judicial approach:
"It was supposed for a considerable period of time after the passing of the 1840
and 1861 Acts that their effect was, in cases where they gave the court jurisdiction over
new subject-matters, to create new maritime liens in respect of claims relating to them.
This supposition was subsequently held to have been erroneous by the House of Lords,
which decided that the statutory provisions concerned did not create new maritime
liens, but only gave statutory rights of action in rem in respect of such claims. This was
decided, as regards the jurisdiction in respect of necessaries conferred by s.6 of the
1840 Act, in The Heinrich Bjorn; and, as regards the jurisdiction in respect of masters’
disbursements conferred by s.10 of the 1861 Act, in The Sara . . . A further question
arose, following the passing of the 1840 and 1861 Acts, whether in cases wher e those
Acts had enlarged the existing jurisdiction of the court as distinct from conferring new
jurisdiction, it was intended that maritime liens recognised in respect of claims under
the existing jurisdiction should extend also to claims of a similar kin d under the
enlarged jurisdiction. This further question did not fall to be decided in The Heinrich
Bjorn or The Sara."
2.43 Brandon J. went on to say that in damage and salvage cases it was now
established that "the relevant maritime lien should be regarded as extending to claims
under the enlarged jurisdiction". In the case before him Brandon J. held that, applying
the principles on which the extensions of the salvage and damages claims were based,
the maritime lien for seamen’s wages accompanied the extension of wages jurisdiction.
Further, and interestingly, he held that if the extension of jurisdiction and the attached
maritime lien had not been achieved by the Admiralty Court Act 1861 it had bee n
achieved by the Administration of Justice Act 1956.
(d) Established maritime liens
(i) Salvage
THE INTERNATIONAL CONVENTION ON SALVAGE 1989
2.44 Many aspects of salvage are affected by the International Convention on
Salvage 1989, enacted initially in the Merchant Shipping (Salvage and Pollution) Act
1994 and as from 1 January 1996 in the Merchant Shipping Act 1995. The Convention
text is annexed as Schedule 11. So, for example, by the wide definition of a vessel ("any
ship or craft, or any structure capable of navigation")24 property which may be salvaged
under the Convention may be more extensive than formerly. The concept of
voluntariness may be of less importance. There may be special compensation in relation
to out of pocket expenses if there is no re ward or if the reward is less than the expenses,
where there is a threat to the environment by the salved ship and the owner has
minimised or prevented environmental damage.
2.45 However, the Convention provides in Article 20 that "Nothing in this
Convention shall affect the salvage maritime lien under any international convention or
national law" but the enforceability of the law is limited in that it cannot be enforced if
satisfactory security has been provided. Read literally in regard to the establishme nt of
a lien, no provision of the Convention will affect any principle or rule on which the
maritime lien depends. If this be so, rules founded on nineteenth century authority will
remain relevant for the maritime lien but not in relation to a "Convention claim". As the
latter may be enforced by an action in rem and thereby attracts a statutory lien there will
be distinct approaches according to the type of lien on which reliance is placed. 25 The
1995 Act is considered infra in relation to non-maritime lien claims.
SALVAGE APART FROM THE 1995 ACT 26
2.46 In 1824 Lord Stowell described 27 a salvor as a person who without any
particular relation to a ship 28 in distress proffers useful service and gives it as a
volunteer adventurer without any pre-existing covenant that connected him with the duty
of employing himself for the preservation of that ship. 29 In addition to a ship, 30 subjects
of salvage in a maritime context are apparel, hovercraft, 31 cargo, derelict flotsam,
jetsam and lagan, freight at risk, life fro m ships and wreck. 32 Apart from life, the
subjects of salvage also form the assets to which a maritime lien will attach. 33 Subject
to agreement34 or "engaged" services, to qualify for a reward a salvor must have some
degree of success. 35 Services remain engaged even if, after a request for aid is acted on,
the ship is saved by another intervention (the weather or another salvor engaged
instead).36
SALVAGE CLAIMS AND THE MARITIME LIEN
2.47 The maritime lien for salvage services is firmly established and was included
in the list of claims set out in The Bold Buccleugh as attracting a maritime lien. 37 Until
1956 there is no hint in the development of salvage jurisdiction that the ability to br ing
an action in rem for salvage differs from the existence of a maritime lien. 38 Since 1956
the introduction of sister ship jurisdiction under certain conditions means that there is a
distinction and since the enactment in 1994 of the Salvage Convention 1 989 there may
be substantive differences (see infra).
2.48 The maritime lien is founded on the benefit created by the service and, apart
from life salvage, the lien attaches to the asset (ship, cargo or freight) benefited by the
salvage service for the value of the claim. 39 It is independent of any salvage agreement
or personal obligation. 40
EXTENSION BEYOND THE HIGH SEAS
2.49 The lien undoubtedly extends to salvage within the body of a county as well
as on the high seas.41 However, in 1988 in The Goring42 the House of Lords held that no
salvage claim lay in respect of a vessel in non -tidal waters. This conclusion was based
on a detailed analysis of statutory provisions from 1389 until 1956. There was, thought
Lord Brandon delivering the leading judgment, n o room for any "public policy"
consideration—it was simply a question of whether there had been any statutory
extension of an ancient defined right. Yet it was established that salvage would lie in
respect of nontidal waters enclosed by dock gates —and lie by virtue of judicial
application. There could not therefore be unlimited reliance on an established statutory
division between non-tidal and tidal waters. To meet the point a statutory amendment
was made in the Merchant Shipping Act 1988 so to define "tid al waters" in section 546
of the Merchant Shipping Act 1894 (dealing with salvage in coastal waters) as
including the waters of any dock connected with tidal waters ( see infra).43
2.50 The statutory limitation to tidal waters and the extension of such waters is
continued in substance in the Merchant Shipping Act 1995. 44 It remains doubtful,
however, whether the tidal limit can be supported otherwise than through history, once it
is conceded that parts of harbours are areas where salvage will lie. Now that there are
substantive differences between the maritime lien and a salvage claim there is even less
justification for making the availability of the action in rem depend on the tide.
2.51 Foreign inland waters. As salvage is a claim unique to Admiralty the issue in
The Goring equated the existence of the claim with Admiralty jurisdiction. A salvage
claim in relation to foreign non -tidal waters could be recognised if the claim is
recognised there and the existence of the claim is seen as a matter of substantive law. 45
However, if the question is treated as one of "salvage jurisdiction" the courts may well
see this as a matter essentially for English law. 46 To take this view, however, would be
to apply English history to matters outside its scope. The conclusion in effect depends
on whether the backward look goes sideways. There is in reality little reason why the
existence of a claim should not be a matter for the appropriate foreign law.
LIFE SALVAGE
Salvage operations commenced prior to 1 January 1995
2.52 In relation to salvage operations in British waters or in regard to a British
vessel elsewhere started prior to 1 January 1995 ther e is a statutory right to a
"reasonable amount" for the saving of life. By section 544(2) of the 1894 Act this is to
be payable in priority to all other salvage claims, but there is no reference to a maritime
lien.47 Where the ship is destroyed or the valu e insufficient, payment may be made by
the Secretary of State.
2.53 In The Fusilier48 the Privy Council construed the predecessor to the section 49as
simply providing "in the entire sum payable for salvage of ship and cargo a distinct
reward for the preservation of human life". 50 It would seem contrary to common sense
both in the light of this approach and the general public policy lying behind salvage to
differentiate between life and property salvage. The statutory provisions impose
liability on the owner of ship and cargo and allow the assertion of liability through
proceedings in rem.51 It would be curious indeed to limit that assertion in the case of
life salvage to a statutory lien and allow a maritime lien for property salvage. 52
2.54 The specific provision as to priority in relation to other salvage claims makes
the classification of the life salvage lien as a maritime lien irrelevant in that context. But
it remains critical outside the narrow ambit of section 544(2) —in particular where
there are claimants relying on maritime liens other than property salvage, or where
property liable to a lien is sold prior to the issue of a writ by the life salvor.
Salvage operations commenced on or after 1 January 1995
2.55 Under the Salvage Convention 1989, Article 16, a salvor of human life who
has taken part in the services rendered is entitled to a "fair share" of the payment to the
salvor. Nothing in that article affects national law.
2.56 The Convention provisions came into force in the United Kingdom on 1
January 1995 through enactment by the Merchant Shipping (Salvage and Pollution 53) Act
1994, the relevant provisions of which were repealed and re -enacted in Part IX of the
Merchant Shipping Act 1995. The 1894 Act provi sion was repealed but like provision
is made for discretionary payment by the Secretary of State where the vessel is
destroyed or the salvor is entitled to a less than reasonable amount under the
Convention.54
2.57 Nothing in the Convention is to affect the "salvor’s maritime lien". 55 Although
the life salvor has lost any statutory priority, the reasoning for inclusion within the
maritime lien remains. Because of the loss of statutory priority the classification
becomes the more important. It should not be seen solely as a Convention right given its
history and the express provision that the entitlement is to a share of the salvage award,
rather than any independent fund. 56
STATUTORY CLAIM FOR PROPERTY SALVAGE
2.58 (a) Prior to 1 January 1995. Section 546 of the Merchant Shipping Act
1894, as amended by the Merchant Shipping Act 1988, provides:
"(1) Where any vessel is wrecked, stranded, or in distress at any place on or near
the coasts of the United Kingdom or any tidal water within the limits of the United
Kingdom, and services are rendered by any person in assisting that vessel or saving the
cargo or apparel of that vessel or any part thereof, and where services are rendered by
any person other than a receiver in saving any wreck, there shall be payable to the
salvor by the owner of the vessel, cargo, apparel, or wreck, a reasonable amount of
salvage to be determined in case of dispute in manner hereinafter mentioned. 57
(2) In this section "tidal water" means—
(a) any waters within the ebb and flow of the tide at ordinary spring tides; or
(b) the waters of any dock which is directly, or (by means of one or more other
docks) indirectly, connected with any such waters."
2.59 This section reproduces section 458 of the Merchant Shipping Act 1854
which in turn replaced in part section 19 of the Wrecks and Salvage Act 1846. 58 There
is an overlap between the jurisdiction 59 under section 458 and that founded on the pre -
statutory jurisdiction extended by the Admiralty Court Act 1840. There is no guide as to
whether the statutory provision creates a maritime lien, but it would be surprising if it
did not in the light of the somewhat intricate and connected statutory and non statu tory
framework. It certainly fits with the general proposition that geographical extensions of
rights attracting maritime liens extend the liens accordingly.
2.60 Tidal waters, docks and harbours. In 1988 in The Goring60 Lord Brandon
saw the restriction to tidal waters as support for the exclusion of salvage in general
from non-tidal waters. Prior to the defining amendment of 1988 there was difficulty
caused by the exclusion of harbours from "tidal waters" by section 742 of the 1894 Act
(the definition section). If applied to section 546 this means exclusion from docks —yet
it was accepted that salvage could take place in docks. So far as statutory salvage is
concerned the extension to dock waters is simply preserved by deeming facts to be
contrary to reality.
2.61 Although "harbour" is defined in section 742 as including estuaries and
navigable rivers it is not to be so construed in section 546. In The Powstaniec
Wielkopolski61 Sheen J. held that there could be salvage under section 546 of a ship in
the River Thames although at a place which could provide shelter —the word "harbour"
had to be given its natural and ordinary meaning and Gravesend Reach would not
ordinarily be described as such.
2.62 (b) After 1 January 1995. Section 546 of the Merchant Shipping Act 1894
was repealed by the Salvage and Pollution Act 1994 with the consequence that the 1894
provision applies only to salvage operations started prior to 1 January 1995. 62 There is
no replacement provision, property salvage now being solely a matter for the
Convention as enacted or the maritime lien. The repeal removes an unnecessary
complexity and the limit to tidal water, save for docks connected with such waters,
applies generally by limiting the Convention to wate rs other than "inland waters" except
where a vessel not of inland navigation is involved. Excluded from such waters are any
waters within the ebb and flow of the tide and dock waters connected with "such
waters". 63
(ii) Damage by a ship 64
2.63 The Admiralty jurisdiction based on the occurrence of "damage" is not
necessarily equated with the existence of a maritime lien. In considering "damage" as
the basis of a maritime lien it must be appreciated that in many decide d cases the issue
turned on whether an action in rem would lie. The question of whether there was a
maritime lien was not before the court but it would be curious to admit an arbitrary
wider jurisdiction for a statutory lien in relation to subject -matter later held to attract a
maritime lien. It is possible, therefore, in some contexts to use authorities dealing with
the jurisdiction in rem as relevant to the establishment of a maritime lien.
2.64 It was the "damage lien" which was in issue in The Bold Buccleugh 65—the
case in which the concept of the maritime lien first emerged —and in that case it was
made clear that damage caused by a ship was to be treated in the same way as a claim
for salvage or for wages against the ship. In 1897 in a Scott ish case, Currie v.
M’Knight,66 the House of Lords affirmed the decision in The Bold Buccleugh that a
maritime lien attaches to a ship causing damage:
" . . . it is a reasonable and salutary rule that when a ship is so carelessly navigated
as to occasion injury to other vessels which are free from blame, the owners of the
injured craft should have a remedy against the corpus of the offending ship, and should
not be restricted to a personal claim against her owners, who may have no substantial
interest in her and may be without the means of making due compensation". 67
The lien will attach only in so far as the claim is established through proof of fault
of the person in charge of the ship. However, this leaves open the question of the extent
to which a maritime lien may attach to a ship in respect of which the owner is not in
charge. This is a matter not so directly connected with the nature of the claim but with
liability through a ship for an act for which the shipowner has no direct responsibility.
To put it from the claimant’s point of view —what is the scope of enforceability of his
claim?68
2.65 To attract the lien it is not necessary that damage be caused to a ship. Damage
to a landing stage or to goods will attract the lien, 69 and now it extends to injury to
persons or loss of life as a consequence of the statutory extension of Admiralty
jurisdiction (see infra).
2.66 It is clear that the maritime lien will attach only if the ship is "the instrument
of mischief", so that where the crew cut a cable of another ship and damage ensued no
maritime lien was created. 70 Subject to this requirement it seems inevitable that the
authorities which establish that for an action in rem to lie there is no requirement of
physical contract71 and that consequential damage can be the basis of a claim 72 apply to
maritime liens.
2.67 In 1996 Clarke J. saw the authorities as establishing three criteria for the
damage lien:
(1) the damage must be caused by something done by those engaged in the
navigation of the ship in a physical sense;
(2) the ship must be the actual or noxious instrument by which the damage is done;
(3) the damage must be sustained by a person or property exter nal to the ship.
It is not sufficient for the ship to have been used "in some way as a means of
causing damage". So no maritime lien attached to a claim for financial loss caused to
charterer through deceit, misrepresentation by shipowners in not stating t hat there were
insufficient bunkers for a voyage and in persuading the charterer to advance funds for
bunkers. The ship was not the active cause of the damage in a physical sense. 73
EXTENSION BEYOND THE HIGH SEAS
2.68 The Admiralty Court Act 1840, section 6 extended the jurisdiction in respect
of claims for damage received by a ship from claims for damage received on the high
seas to damage received within the body of a county. The Admiralty Court Act 1861
provided for jurisdiction over "any claim for damage done by any ship". 74 In several
cases it was said that it could well be argued that the extension of jurisdiction in respect
of some claims to events within the body of a county carried with it an extens ion of the
maritime lien,75 and in 1901 in The Veritas76 it was held that a maritime lien attached to a
claim for damage to a landing stage in the Mersey. Gorell Barnes J. pointed out that in
The Bold Buccleugh (decided in 1851) the collision occurred in t he River Humber and
said in connection with the statutory extension from the high seas that "it seems to
follow that it was intended that the law should be the same as to damage done by a ship
elsewhere".77 In 1979 in The Father Thames 78 where a collision in the River Thames
was at issue no point was apparently taken on the place of act, the argument
concentrating on the validity of a maritime lien attaching to demise chartered ships.
EXTENSION TO CLAIMS FOR PERSON INJURY OR LOSS OF LIFE
2.69 Personal injury. Admiralty jurisdiction prior to the Admiralty Court Acts
1840 and 1861 extended to claims for personal injuries but it appears that they were
pursued by actions in personam.79 Section 7 of the Admiralty Court Act 1861 provided
that the court should have jurisdiction "over any claim for damage done by any ship"
and in 1867 in The Sylph80 and in 1869 in The Beta81 it was held that an action in rem
would lie in respect of personal injury. Both relied primarily on the statute rather than
on the jurisdiction of the court prior to it. The Maritime Conventions Act 1911 provided
specifically that:
"5. Any enactment which confers on any court Admiralty jurisdiction in respect of
damage shall have effect as though references to such damage included references to
damages for loss of life or personal injury, and accordingly proceedings in respect of
such damages may be brought in rem or in personam."
2.70 The question of whether such a claim attracts a maritime lien depends upon
the construction of the effect of the statutory provision in the light of the pre -existent
jurisdiction. If it is seen as an extension through an elaboration of "damage" it may be
argued that the maritime lien attracted to damage is extended by analogy to the statutory
geographical extension. If it is seen as a novel jurisdiction it will suffer the fate of other
novel claims created by statute, and be relegated to a statutory lien. Price, writing in
1940,82 thought it probable that there was no maritime lien. Thomas, 83 writing in 1980,
thought it "without question" that there is —relying primarily on a somewhat ambiguous
illustration given by Scott L.J. in The Tolten 84—a case concerned with a collision
between a ship and a foreign pier.
2.71 Approaching the matter from policy, the rationale for a damage maritime lien
is certainly no less applicable to personal injury than to property damage, and it would
expose the law to a certain amount of ridicule to allow a maritime lien for the latter
only. It has to be admitted that, adopting the accepted mode of construction of statutes
extending the Admiralty jurisdiction and their relevance to maritime liens, there is an
argument for denying the maritime lien to personal injury claims —for the Admiralty
Court appears to have lacked jurisdiction in rem prior to the Admiralty Court Act 1840.
2.72 Nevertheless, it is suggested that it is open to remain true to the accepted
approach and still to hold that personal injury claims attract a maritime lien. 85 The
principle of "damage" caused through a tortious act was clearly accepted as the root of
a maritime lien and there is every reason why a statute extending the scope of "damage"
should be extending that jurisdiction rather than differentiating between differ ent kinds
of damage.86
2.73 Loss of life. In 1884 in The Vera Cruz (No. 2),87 the House of Lords held that
a claim under the Fatal Accidents Act 1846 could not be pursued by an action in rem for
damage done by a ship. The Act of 1846 was "legislation for t he general case and not
for particular injury by ships" and it "points to a common law action, points to a
personal liability and a personal right to recover and is absolutely at variance with the
notion of a proceeding in rem". It gave a new right of action entirely.
2.74 The Maritime Conventions Act 1911, section 5, provided for the
incorporation of damages for loss of life in any enactment conferring on any court
Admiralty jurisdiction in respect of damages. Thomas is certai n that a claimant under
the Fatal Accidents Act 1976 (the current successor to that of 1846) has no maritime
lien as the jurisdiction is "solely statutory". 88 With respect this is to ignore the form of
the statutory provision conferring the power —for it simply defines the word "damage"
in other statutes.
2.75 The issue is whether the statutory jurisdiction can be seen as an extension of
the jurisdiction over the claims for damage, or whether it is an "entirely new action" as
was said in The Vera Cruz. Conversely, the reasoning of The Vera Cruz is not entirely
destroyed by the Maritime Conventions Act 1911, for the wording of that statute does
not meet the point that an action under the Fatal Accidents Act is not an action flowing
from damage or loss caused by a ship. It does, however, fundamentally meet the point
made in The Vera Cruz that the Fatal Accidents Act did not encompass an action in
relation to a ship.
2.76 It may be that to say an action under the Act is not caused by the ship is
looking too narrowly at "cause". Further, it may be contended as with personal injury
that the Maritime Conventions Act of 1911 was simply spelling out "damage" in the
context of Admiralty jurisdiction and that in that context a damage claim has long been
recognised as attracting a maritime lien.
EXTENSION TO OIL POLLUTION CLAIMS
2.77 Admiralty jurisdiction in respect of damage by a ship was extended to
liability incurred under the Merchant Shipping (Oil Pollution) Act 1971 89 and any claim
in respect of a liability falling on the International Oil Pollution Compensation Fund
under the Merchant Shipping Act 1 974. 90 It seems hardly arguable that such claims can
attract maritime liens. They create a jurisdiction over claims based on a caus e of
damage which is entirely new—although the ultimate effect may be similar to that
caused by physical damage. Furthermore, the statutory phraseology makes it clear that
the "extension" is not through an extension of the concept of "damage" but through t he
inclusion of a claim in relation to oil pollution damage within the category of claims
based on damage.
(iii) Seamen's wages 91
2.78 The "wages" lien was included in the group of claims in The Bold Buccleugh
as attracting a maritime lien. Before that characterisation there is judicial insistence
about the attachment of the wage claim to the ship "as long as a single plank"
remained,92 and to the priority of a wages lien over the claim of a mortgagee. 93 The
maritime lien does not diverge from jurisdiction in rem in the application of a wide
construction of "wages", the type of contract under which wages earned or the person
earning them.94
2.79 In 1935 in The British Trade 95 it was held that a maritime lien did not coexist
with Admiralty jurisdiction in rem where the claim arose out of a special contract on
the basis that the Act of 1861, while extending Admiralty jurisdiction to wages earned
under a special contract, did not thereby extend the mariti me lien.96 But in 1977 in The
Halcyon Skies97 Brandon J. held that The British Trade was incorrectly decided. In
Brandon J.’s view the judgment in the earlier case ignored the distinction long
established in relation to the Admiralty Court Acts 1840 and 18 61 between (i) the
extension by the statute of jurisdiction in regard to claims attracting maritime liens prior
to the statutes and (ii) the creation by the statutes of jurisdiction in rem in relation to
claims not attracting such liens prior to the statut es. This analysis adopts the reasoning
perhaps focused on geographical extension to the extension in relation to the contract
under which the wages were earned. Such a conclusion seems only sensible. To
distinguish between claims made on identical grounds because of a difference in a
particular element of the claim would require strong distinction in policy. In the case of
wages, as in salvage and collision, the policy is all the other way.
2.80 The lien is, however, created by the service to the ship and n ot the contract of
employment. So unless the seaman knows he is not authorised, it is irrelevant whether
or not the service rendered is authorised by the owner. Nevertheless, the right to the
wages is normally dependent on the contract of employment and in the context of the
lien, the amount of wages for which it will lie will normally be quantified by the
contract if connected with service on a ship. So the lien is co -extensive with contractual
wages. It is not for a court to evaluate the service where the re is a contract.98
"WAGES"
2.81 Courts have consistently taken a liberal view of "wages". 99 In 1959 Worley
L.J. in the Supreme Court of Bermuda saw the need to keep up to date and include in
"wages" those additions such as "paid leave, sick leave bonuses and so on . . . which a
mariner can be fairly said to have earned by his services". 100 In that case claims in
respect of employees’ contributions for social insurance, overtime, bonuses and food
allowance, paid sick leave and pay for a period of notice for dismissal without cause
were treated as claims for wages. In The Westport (No. 4) 101 repatriation costs 102 and
union dues were allowed. In The Halcyon Skies 103 Brandon J. held that a maritime lien
attached to claim for unpaid wages due, damages for wrongful dismissal and breach of
contract by the shipowner to pay employees’ contribution to funds for the benefit of
seamen.104 In so doing in effect he held that the limitation expressed in the Admiralty
Court Act 1861, section 10, to wages "earned on board the ship" should be ignored as,
indeed, it had been ignored in the jurisdiction exercised apart from the statute. 105
Alternatively, he held that if this was wrong the limitation had gone because of its
omission from the equivalent provision of the Administration of Justice Act 1956 (a
provision repeated in its 1956 form in the Supreme Court Act 1981). 106
2.82 In 1965 in The Acrux107 Hewson J. considered payments due to an Italian
corporate body carrying out governmental functions in providing social insurance to
seamen employed on board ships registered in Italy. He distinguished between
insurance contributions paid by employers comp ulsorily under statute (as these were)
and contributions paid under contract. He believed that the statutory payments were not
emoluments. In The Fairport108 (decided some two months later) the same judge had to
consider a similar type of payment made on b ehalf of a Greek crew on board a
Panamanian ship to a Greek statutory corporation (N.A.T.). It was said that these
payments involving a non-Greek ship were not compulsory, but a matter of contract.
Hewson J. contented himself in distinguishing The Acrux on the ground that the claimant
there was the corporation to whom the payments should have been made while in The
Fairport it was the crew. In 1968 in The Westport (No. 4) 109 it appears that it was
accepted that contributions which, if the argument in The Fairport was correct were
compulsory, were emoluments. 110 In 1981 in The Silia111 there was a claim by the
N.A.T. in respect of unpaid contributions in regard to the crew of a Greek -registered
ship. It was apparently accepted that payment of the N.A.T. fund was wages, but it was
held that no action would lie as the claimants were not the masters or crew, nor was the
claim made for their benefit. 112
2.83 The development through accepting sums in addition to "wages" in the narrow
sense as within the concept so as to create a maritime lien for them was not continued so
as to include severance pay. In The Tacoma City113 the Court of Appeal held first that to
create a maritime lien on a ship the wages must be paid for current services in that ship.
Severance pay was compensation for dismissal and in the particular case was assured
by the length of service in different ships. Further, not every payment under a contract of
employment was wages—as for example a pension or, in the view of Dillon L.J. stu dy
leave ashore. The "elfare" payments held in the earlier cases to be ‘"ages’"all relate to
current service.
2.84 It may be accepted that all payments under a contract of employment by a
shipping company for service on ships would not necessarily be wages earned on ships
or a particular ship. However, it is with respect too general to classify "severance pay"
as such as outside a concept which includes damages for unfair dismissal and breach of
contract claims. It may form part of the contract payments as a whole and, it is
suggested, the critical element is the connection with a particular ship. Likewise, study
leave ashore (just as sick leave) may form part of a contract of service in relation to a
particular ship—to exclude this as such risks bringing back the requirement of "earned
on board".
2.85 The effectiveness of the maritime lien may be affected by the change in the
mode of payment of wages. Traditionally wages were paid for each voyage and on
discharge. The lien arises when the wages are due. Crew agreements now may provide
for monthly payments and if so may provide for additional amounts to be paid after
discharge114 —when the ship may have left the United Kingdom. 115
"SEAMEN"
2.86 By the Merchant Shipping Act 1995 116 reproducing the 1894 Act in turn
reproducing in substance the Merchant Shipping Act 1854, 117 "seamen" includes every
person except masters and pilots employed or engaged in any capacity on board any
ship. On its face the definition is wide and has been co nstrued in that way. So it includes
medical practitioners, 118 pursers,119 a steward in charge of a bar 120—as looking at the
definition, would be expected.
2.87 The Supreme Court Act 1981 follows the Administration of Justice Act 1956
in substituting "member of the crew" for "seaman", a phrase which appears narrower in
scope than any person employed in any capacity on board any ship. In so far as it is
more restricted the maritime lien thereby excluded is preserved either by section 21(3)
or if it includes "in rem" jurisdiction section 20(1)(c) of the Act of 1981 through the
"sweeping up" provision of the Act of 1956. 121
(iv) Masters’ wages 122
2.88 The masters’ maritime lien for wages is the creature of statutory provisions
conferring (in 1844) "all the rights liens privileges and remedies belonging to any
seaman or mariner", 123 and after further statutory replacements 124 (in 1995) "the same
lien for his remuneration. . . as the seaman has for his wages". 125
(v) Masters’ disbursements
2.89 The maritime lien is statutory, originating in the Merchant Shipping Act 1889,
section 1, reproduced in the Merchant Shipping Act 1894, section 167(2):
"The master of a ship. . . shall so far as the case permits have the same rights liens
and remedies for the recovery of disbursements or liabilities properly made or incurred
by him on account of the ship as a master has for the recovery of his wages."
2.90 It thereby equated the lien ultimately with that of the seaman for his wages
with the extension to "liabilities" and the qualifications of (i) "o far as the case permits"
and (ii) "properly made by him". In 1892 in The Castlegate126 the House of Lords held
that disbursements could properly be incurred only if within the express or implied
authority of the owner. 127 Lord Watson thought that the phrase "so far as the case
permits" seemed to indicate that disbursements, even though properly incurred, may in
certain instances not attract a lien.
2.91 The 1894 provision was replaced by the Merchant Shipping Act 1970,
section 18 (as from 1 January 1996 the Merchant Shipping Act 1995, section 41), in the
same section as that conferring on the master a lien for wages.
"The master of a ship shall have the same lien for his remuneration and all
disbursements or liabilities properly made or incurred by him on account of the ship, as
a seaman has for his wages."
2.92 The omission of the phrase "so far as the case permits" seems of no effect
simply because it is difficult to appreciate what the effect of the phrase was. The direct
linking of the lien to wages only accomplishes that which previous provisions
accomplished indirectly, and cannot therefore be said to alter the requirement of the
owner’s authority—a requirement not present in the wages lien. 128
WHAT ARE DISBURSEMENTS OR LIABILITIES?
2.93 The meaning of the word "disbursements" in Admiralty practice is
disbursements by the master for which he makes himself liable in respect of necessary
things for the ship for the
"purposes of navigation, which he, as master of the ship, is there to carry out —
necessary in the sense that they must be had immediately —and when the owner is not
there, able to give the order, and he is not so near to the master that the master c an ask
for his authority, and the master is therefore obliged, necessarily, to render himself
liable in order to carry out his duty as master." 129
2.94 The provision of "liabilities" ensures the demise of the doctrine once
espoused130 that a master may claim recompense only for payments actually made. The
payment made or liability incurred must be properly incurred "on account of the ship in
the ordinary course of the master’s employment" 131 and are linked to the concept of
necessaries and bottomry. Indeed, as in a sense, the master’s claim is the other side of
the coin to that of the supplier of necessaries, "disbursements" are to be understood in
the same broad way as "necessaries" .
2.95 The lien extends only to disbursements which a master has "a right t o make on
the credit of the owners of the ship" and does not extend to disbursements for which
charterers are responsible. 132 There is no lien on the freight unless there is also a lien
on the ship.133 It is said by some that payment of wages can be a grou nd for a claim for
disbursements, but it seems that this was based on the principle that a wages lien is
thereby transferred. 134 As such it falls foul of the now established rule that such payment
does not put the payer in the position of a wages lien hold er. 135 On the other hand, it may
be argued that unlike cases of payment by other than a master, it may come within the
concept of disbursement.
(vi) Bottomry and respondentia
BOTTOMRY
2.96 Bottomry is a method of raising money which in 1926 was described as "out
of common use at the present day and unfamiliar in current practice". Almost all
textbooks now describe it as "obsolete". Yet the Supreme Court Act 1981 repeats the
provision of the Administration of Justice Act 1956 in specify ing that a claim arising out
of bottomry is within Admiralty jurisdiction and even if the statute was silent it may fall
within the "sweeping up" provision. 136
2.97 The bottomry transaction is based on maritime risk. It provides a master or
owner of a ship with a method of obtaining funds through the giving of a loan in a
situation of necessity when the owner’s credit will not gain such funds. "The want of
personal credit, the necessity of defraying the expense of repairs and outfit to complete
the voyage, the exigency occasioned by distress from wind weather and accident, the
sum required—all these are circumstances which justify the execution of a bottomry
bond."137
2.98 Ship, cargo and freight may be given 138 as security for the provision of the
bond, and the whole transaction is focused on the security. First, there is no personal
liability on the owner, 139 and, indeed, one essential criterion for the validity of a
bottomry transaction is that the owner is not seen as under any liability to repay. 140
Secondly, repayment is (and for validity of the transactions as bottomry must be)
dependent on the arrival of the ship. 141 Subject to exceptions based primarily on
prevention of completion of the voyage by the owner or master 142 if the ship does not
arrive no repayment is due, and if it does arrive it is the ship (and cargo where
appropriate) against which the lender must claim. Thirdly, the principle developed that
if a master wished to enter into a bottomry bond he must make all possible efforts to
contact the owner. If he did not make such effort the security was void. 143
2.99 The security interest conferred in the bottomry transaction has been firmly
distinguished from a mortgage. 144 It is said to be hypothecation to be enforced through
legal process. In 1897 the interest conferred was said to be a "maritime lien" by Gorell
Barnes J. in listing the claims to which such a lien attached. 145 And, prior to the creation
of the concept of maritime lien in 1851, it was undoubtedly viewed as such a lien. 146
Subject to the possibility of a sister ship action, the claim in Admiralty and maritime
lien are one and the same.
2.100 The utility of the bottomry transaction was clearly affected by the conferring
of a maritime lien on the claim for masters’ disbursements and the development of a lien
for necessaries. Further, and more importantly, there are fewer occasions when a master
needs immediate funds without alternative methods of acquiring them and perhaps fewer
lenders who are willing to lend on the security of the arrival of a ship.
RESPONDENTIA
2.101 Respondentia appears to be a parallel security interest to bottomry but
involving only cargo. 147 The principles applicable to it seem identical to that of
bottomry.148
(e) Statutory extensions by analogy
2.102 Although in all instances save those of masters’ wages and disbursements the
maritime liens have their origin in judic ial doctrine, statutes have extended the scope of
the liens in most categories. The intervention has not always been expressed as
extending the "maritime lien", but more often than not in terms of Admiralty jurisdiction.
It was for the courts to decide whether the extension of jurisdiction meant the extension
of the maritime lien. Once it was clear that a right in rem could exist apart from a
maritime lien it was also clear that any statutory extension of jurisdiction or even of
remedy would not automatically carry with it a maritime lien. As has been seen, in
relation to the foundation statutory framework of 1840 and 1861 where the area of
jurisdiction was extended (e.g. from the high seas to "within the body of a county") it
was an extension of the lien which had existed in the narrower area. Where a claim not
attracting a maritime lien was brought within the Admiralty jurisdiction in rem it was as
a statutory lien. Doubts mainly arose in the instances where claims were brought wi thin
the Admiralty jurisdiction specifically by analogy with those already attracting maritime
liens.
2.103 Where, as with masters’ wages and disbursements, the new claims were said
to attract the same "rights liens and remedies" as one already attracting maritime lien
there is no uncertainty. And even the phrase "rights and remedies" (without express
reference to liens) is open to little doubt. But in some cases the analogy is restricted to
means or manner of recovery—leaving a considerable doubt.
(i) Probable maritime lien by statutory analogy
RECOVERY OF FEES AND EXPENSES BY RECEIVER OF WRECK
2.104 Bearing the confusing development in a jurisdictional context in mind there
seems only one additional class of claim to which in all probability a maritime l ien is
attached. The Merchant Shipping Act 1894 conferred on the receiver of wreck ". . . the
same rights and remedies in respect of his fees and expenses as a salvor has in respect
of salvage due to him". 149 Whatever the view of the maritime lien—be it right or remedy —
it is difficult to argue that it is not thereby carried on from salvor to receiver.
(ii) Doubtful maritime liens by statutory analogy 150
2.105
Remuneration for coastguard services in respect of wreck.
Compensation for damage to lands adjoining wreck.
1. REMUNERATION OF COASTGUARD IN RESPECT OF WRECK
2.106 An owner of wreck is under a statutory obligation to pay fees to coastguards
who watch or protect his shipwrecked property unless the services were declined or
salvage paid. The remuneration is recoverable "by the same means" as fees received by
receiver. 151
2.107 It has been contended that this applies the maritime lien already applied to
the receiver.152 It is, however, not nearly so clear cut as the extension to a receiver. The
difference in terminology as regards extension to receiver and further extension to
coastguard is hardly meaningless. Further, a dispute procedure is provided in relation to
receivers’ fees and "means" therefore can carry a positive meaning apart from "rig hts
and remedies". It therefore seems unlikely that there is a maritime lien in respect of such
remuneration.
2. DAMAGE TO LANDS ADJOINING WRECK
2.108 If there is no public road a statutory right is given to pass over land
adjoining wreck to render assistance to shipwrecked persons or property and to deposit
articles recovered on such land. 153 Any damage sustained by an owner or occupier
because of such action "shall be a charge on the vessel, cargo or articles in respect of
which or by which the damage is occasioned". 154 The compensation is recoverable "in
the same manner as the amount of salvage" under the 1894 or 1995 Act as applicable. 155
2.109 It has been contended that it is "hard to resist" the conclusion that by virtue
of the statutory provisions of the 1894 Act the owner or occupier has a maritime lien for
the reasons that (i) a "charge" is consistent with such a lien and (ii) a maritime lien is
one of the "remedies" contemplated by the Act. 156 But, with respect, first, "charge" is as
consistent with a statutory as with a maritime lien 157 and indeed is connected with any
statutory interest. Secondly, the phrase "in the same manner as . .. " surely refers to the
procedure of recovery. Again, therefore, the exis tence of a maritime lien is open to
doubt.
(f) Claims in respect of which a maritime lien has been suggested
2.110
(i) Necessaries.
(ii) Towage.
( i ii ) P il o t a g e .
( i v) Liability for damage done by ships to harbours, piers, etc.
(i) Necessaries
2.111 Since the latter part of the nineteenth century it has been settled in England
that there is no maritime lien for necessaries. 158
(ii) Towage
2.112 In 1889 in Westrup v. Great Yarmouth Steam Co.159 Kay J. discussed the
authorities at length and, fo llowing dicta of the Court of Appeal in The Heinrich
Bjorn,160 held that there was no maritime lien. This decision was approved in 1923 by
Hill J. when considering the question of whether an action in rem would lie in respect
of pilotage.161 More directly in 1919 in Carrow Towing Co. v. The Ed Mc Williams162the
Exchequer Court in Canada followed the Westrup case in declaring that no maritime lien
exists for towage.
(iii) Pilotage
2.113 The issue was left open in the only case in England to discuss it specifically.
In 1923 in The Ambatielos and The Cephalonia 163 Hill J. agreed that a claim by a pilot
for remuneration may be brought by an action in rem.164 Hill J. refused to decide
whether there was a maritime lien in the absence of mortgagees of the relevant ship. He
drew no analogy with towage but with seamen’s wages, and the policy basis for the
wages maritime lien may apply with equal force to pilotage.
2.114 Such authority as there is, therefore, is in favour of a maritime lien and there
is none against. Nevertheless, it may well be that the general judicial reluctance
towards extensions of a powerful but unpublicised right would defeat any such
contention. But it remains more uncertain than some texts would have it. 165
(iv) Damage done by ships to harbours, piers, etc.
2.115 The Harbours, Docks and Piers Clauses Act 1847, section 74, provides that:
"The owner of every vessel. . . shall be answerable to the undertaker for any
damage done by such vessel. . . or by any person employed about the same, to the
harbour, dock or pier, or the quays or works connected therewith. . . and the undertaker
may detain any such vessel. . . until sufficient security has been given for the amount of
damage done by the same."
2.116 On its wording, the section creates a possessory lien or at the most a security
interest dependent initially on detention. The only argument in favour of a maritime lien
must be as an extension of the judicially created "damage" maritime lien. Against that
argument is the specific provision relating to detention, a provision similar to powers
given in other contexts to public authorities in the enforcement of rights.
2.117 In 1874 in The Merle166 Sir Robert Phillimore held that the section placed
damage to a pier "in the category of damage giving a maritime lien upon the ship
inflicting it". The primary issues in the case were:
(i) whether under statutory provision, the owner of the pier succeeded to the
statutory rights of the previous owner who had constructed it;
(ii) whether there could be recovery for damage caused by inevitable accident;
(iii) whether if (i) and (ii) were answered in favour of the plaintiffs they could
enforce their right by an action in rem.
2.118 A subsidiary contention seems to have been made —that even if an action in
rem would lie the claim did not "travel with the transfer of the property to th e plaintiffs"
as it did not attract a maritime lien.
2.119 The judge in effect found for the plaintiffs on the three primary questions and
held that by statute the privileges of the previous owner were transferred to the present
owner. He expressed his opinion that despite the lack of need to prove fault a maritime
lien was attracted to the claim. Particularly was this so, he thought, because of the
power of detention conferred on the pier owners by the Act.
2.120 The case is unsatisfactory in that first, t he statutory provision of itself is
clearly not capable of being the source of a maritime lien and, secondly, the lack of the
need to prove fault distinguishes its characteristics from the established damage lien. To
confer a maritime lien distinct in nature from its progenitor would surely require more
specific wording—particularly as the statutory provision specifically provides the right
to detain.
(g) "Or other charge"
2.121 This phrase is taken directly from the Administration of Justice Act 1956. It
has been construed by Hewson J. to refer (a) in English law to "charges" which by
statute are equated to maritime liens; (b) as to foreign law to "any charge on a vessel
given under the law of any nation to secure claims similar to those recognised by this
Court as carrying a maritime lien". 167 In other words, a charge which is attached to a
claim which in substance is one recognised in English law as attracting a maritime lien.
On this view the phrase adds little—but is nevertheless retained in the Act of 1981. (ii)
Claims enforceable by action in rem against the relevant property or ownership of a
share in a ship
(a) Claim to ownership or possession of a ship or share in a ship (section 20(2)
(a))
2.122 The jurisdiction of the Admiralty Court in disputes relating to possession has
its roots in its inherent or non-statutory jurisdiction. Its power to decide questions of
title was limited until the Admiralty Court Act 1840, section 4 of which conferred
power to decide "all questions as to the title or ownership of any ship or vessel or the
proceeds thereof remaining in the Registry arising in any cause of possession, salvage,
damage, wages or bottomry . . . ". That wording was carried forward into the Supreme
Court of Judicature (Consolidation) Act 1925. 168 It was replaced in the Act of 1956 by
the wording of the present provision which bases the jurisdiction on claims to
possession or ownership of a ship or ownership of a share in a ship. 169
2.123 Any restriction to direct claims following from the change must be
counterbalanced by the inclusion of the more general wording through the "sweeping
up" provision. In that context stemming from its inherent jurisdiction the court has a
power to rectify the register so as to delete an entry inconsistent with a claimant’s
title170 or order delivery up of a certificate of registry of a British ship. 171 There is
statutory power (i.e. discretion) to prohibit for a specific time on the application of "an
interested person” any dealing in a registered ship or a registered share in a registered
ship.172 Such a power is a substantive right but "an interested person" extends only to a
person with a proprietary interest 173 or at least a person having a claim against the ship
which could lead to such an interest. 174 It does not include a mere personal creditor. 175
(b) Any questions arising between co-owners of a ship as to possession,
employment or earnings of the ship (section 20(2)(b), 20(4))
2.124 The court may settle any account outstanding between the parties in relation
to the ship and direct the ship or share of the ship to be sold or "make any such other
order as the court think fit. 176 The wording has survived from the Admiralty Court Act
186 1.177
2.125 In The Vanessa Ann 178 there was a dispute between co -owners as to a
charterparty. Staughton J. ordered release from arrest at the instance of one co -owner on
condition that those wishing the ship to be chartered created an equitable mortgage on
the ship, the ship being unregistered. 179 The judge acted on the view that arrest was a
discretionary remedy but currently the judicial approach is that it is an entitlement ( see
Chapter 15). It may be, therefore, that the discretion in relation to co -owner claims
where the issue is release from arrest is in that respect not as wide as contemplated. 180
Foreign ownership
2.126 English law recognises foreign ownership in the sense that actions may be
brought in relation to it, and substa ntive questions relevant to ship ownership will be
referred to the law of the state of registration of the ship. Formalities of any sale
transaction may be referred to the law of the place of the transaction, and any dealings
in an unregistered ship should it, it is suggested, be referred to the law most closely
connected with the transaction. Questions of procedure, remedies and priority should be
referred to the law of the forum. 181
(c) Any claim in respect of a mortgage of or charge on a ship or any share
therein (sections 20(2)(c), 20(7)(c))
Mortgage
2.127 The Supreme Court Act 1981 is in identical terms to the Administration of
Justice Act 1956. The earlier Act extended the jurisdiction in regard to mortgage claims
as compared to that set out in the Supreme Court of Judicature (Consolidation) Act
1925. Under the Act of 1925 jurisdiction in respect of unregistered mortgages was
limited to a ship (or proceeds) under arrest of the court. 182 The jurisdiction now extends to
claims in respect of any "mortgage" whether it be registered or unregistered, legal or
equitable, English or foreign. 183
“Charge”
2.128 The word "charge" does not appear before the Act of 1956, the equivalent
provisions of earlier statutes referring only to mortgages.
2.129 In 1963 in The St Merriel 184 and in 1965 in The Acrux 185 Hewson J.
construed the phrase to mean a charge in the nature of a mortg age. This limited
construction is perhaps borne out first by the complex structure of liens ("charges" in a
wide sense) created by the statute, secondly, by the reference in the equivalent Article
of the Arrest Convention to "mortgage and hypothecation", a nd thirdly by the English
concepts of the equitable charge in general and the floating charge in particular thereby
providing English legal substance to the narrow interpretation.
Foreign mortgage or charges
2.130 Whatever the extent of the "charge" in the case of a foreign transaction it will
be for English law to define whether it is a "mortgage" or "charge" within the statute.
Only at that point will (a) jurisdiction be created under the Act 186 and (b) foreign law
become relevant. Matters relevant to the substance of the mortgage (creation, validity,
etc.) will be referred to the law of registration of the ship; matters of procedure, remedy
and priority to the law of the forum. 187
(d) Any claims for the forfeiture or condemnation of ship or goods, the
restoration of ship or goods after seizure or droits of Admiralty (section 20(2)(s))
A ship
2.13 1 There are a number of statutory provisions relating to the condemnation and
forfeiture of ships, 188 the most relevant of which today are those relevant to act s
committed contrary to Customs and Excise requirements. In relation to the latter the
Customs and Excise Management Act 1979 provides for proceedings either in the High
Court or in a magistrates’ court, 189 and section 20(2)(s) of the Supreme Court Act 1981
provides for the High Court jurisdiction to be exercised by the Admiralty Court. 190
2.132 A ship is subject to forfeiture 191
(i) where the master or owner of a British ship does anything or permits anything to
be done to conceal the nationality of the ship 192;
(ii)subject to two exceptions where the master or owner of a non -British ship does
anything or permits anything to be done for the purpose of causing the ship to appear to
be a British ship193;
(iii) where property in a registered British ship or share is transmitted to a person
not qualified to own it and no order of sale is granted. 194
2.133 A ship is liable to forfeiture in relation to Customs and Excise requirements
if it is adapted for concealing goods, 195 used for the exporting of stores contrary to a
prohibition or restriction, 196 used for shipping or carrying coastwise contrary to
regulations,197 if cargo is jettisoned or destroyed to prevent seizure, 198 if the master is
unable to account for missing cargo, 199 or is used for the carriage of any thing liable to
forfeiture.200
Goods
2.134 Any court having Admiralty jurisdiction may declare dangerous goods, not
marked as such but sent on board any vessel, forfeited together with any package or
receptacle in which they are contained. 201 There are a variety of Customs and Excise
provisions relating to forfeiture of goods which may in appropriate circums tances fall
within section 20(2)(s). 202
Claims for droits in Admiralty
2.135 These are perquisites of the Lord High Admiral which were transferred to
the Crown in 1703 and subsequently were reserved to the Crown. 203 The proceeds are
now paid into the Exchequer. They comprise:
(i) jetsam, flotsam, lagan and derelict 204 found at sea of which the owner does not
appear "in due time"205;
(ii) goods and ships taken from pirates (but apparently not property in the
possession of pirates and belonging to others) 206;
(iii) royal fishes such as whale or sturgeon. 207
2.136 The mandatory procedure provided by the Merchant Shipping Act 1995 208
for settling the title to wrecks and for their delivery to and disposal by a Receiver
makes the likelihood of this aspect of High Court jurisdiction unlikely to be frequently
exercised. The "wreck" over which the Receiver exercises jurisdiction is that found "in
or on the shore of the sea or tidal water" in the United Kingdom or found outsi de the
limits of the United Kingdom and brought within it. 209
2.137 However, the right of the Crown to wreck as a droit of Admiralty is not
coincidental with the jurisdiction of the Receiver. The right of the Crown is now
statutorily defined as to "all unclaimed wreck found in the United Kingdom or in United
Kingdom waters".210 In The Lusitania211 Sheen J. held that whether or not wreck found in
the sea outside United Kingdom waters had been a droit of Admiralty, the title of the
Crown was now governed by statute. So while notice of wreck brought into the United
Kingdom must be given to the receiver the Crown cannot claim it as a droit. Whether or
not brought within the United Kingdom a person in possession wil l in the likely event of
no better claim have the best proprietary right in it. (iii) Claims enforceable “in rem”
against a ship or “sister ship” (section 20(2)(d) -(r)). Jurisdiction and enforceability “in
rem” compared
2.138 It is essential to distinguish between (a) Admiralty jurisdiction and (b) the
ability to bring an action in rem. Much of the discussion in regard to the latter focuses
on the ability to arrest a ship which to non -English eyes are likely to create further
confusion. In a number of decisions there is a tendency for the nature of the claim to be
confused with the ability to enforce that claim in rem—to telescope the provisions of
section 20(2) with those of section 2 1(4). In particular, the prerequisite of enforcing a
claim by an action in rem specified in section 21(4) that "the claim arises in connection
with a ship" does not control the jurisdictional definition of the nature of the claim in
section 20(2). The meaning of the phrase as it applies to enforceability by an action in
rem will be considered in Chapter 10.
(a) Any claim for damage received by a ship (section 20(2)(d))
The availability of the action “in rem”
2.139 This is the one ground of claim specifically set out in section 20(2) of the
Supreme Court Act which is omitted from the provision of section 21 allowing
enforceability by an action in rem. The statute thereby confirmed the view expressed by
the House of Lords in 1976 in The Jade.212 In that case it was said that the inclusion of
this ground in the Administration of Justice Act 1956 within the category of those
attracting an action in rem was wrong. The ship in connection with which the claim
arises, said Lord Diplock, would be that of the plaintiffs who could not "invoke the
Admiralty jurisdiction by an action in rem against their own ship". 213 Lord Diplock
stressed that for an action in rem to lie under the statute in respect of any claim by
express provision it had to be in connection with a ship. That ship must be the ship
specified in the Arrest Convention as "the particular ship in respect of which the
maritime claims arose"—and therefore the inclusion of this head of claim could not lead
to an action in rem.214
2.140 It has been earlier argued that, if the "sweeping up" provision of the
Supreme Court Act 1981 (section 20(1)(c)) encompasses in rem jurisdiction, the
omission of this ground from those in regard to which an action in rem may be brought,
of itself, has no effect. There is no prohibition on bringing such action and the
jurisdiction to allow it was within that of the Admiralty Court "immediately before" the
Supreme Court Act 1981. 215
The basis of liability
2.141 The basis of claim will depend on its legal char acterization, e.g. tort, 216
contract, statute or the particular claim such as salvage. The Supreme Court Act 1981
simply connects ship and damage—the criteria applicable for success must be sought in
the requirements for the particular claim.
Nature of the "damage"
2.142 In The Jade there was a motion to stay proceedings in rem alleging negligent
salvage. The claim itself was based on a number of the grounds set out in the Act of
1956, including "damage received by a ship". Within that claim was the:
(i) damage to a ship;
(ii) damage to cargo;
(iii)damage to personal effects of the crew;
(iv) indemnity for any pollution claim in respect of pollution caused by the
washing off the deck and into the sea of drums of insecticides and consequent damage
and interference with fishing.
2.143 It was "accepted as a general proposition" that "consequential loss in the
form of loss during repair" would come within the paragraph. Reading the paragraph as
meaning "any claim arising out of damage received" Brandon J. at first instance held
that the claim for indemnity by the shipowners fell within "damage" but that the claims
by the crew and cargo owners fell outside it. In his view the paragraph referred to
claims by owners or other persons interested in a ship receiving damage but did not
extend to others suffering in consequence of such damage. 217 The Court of Appeal
agreed.218
Link between damage and person or thing causing it
2.144 "Damage" in the context of the statutory jurisdiction based on damage
received by a ship was not, and it seems was not prior to 1840, restricted to damage
caused by a collision between ships. 219 There would be no more reason to exclude
damage than in the case of damage done by a ship ( see infra).
(b) Any claim for damage done by a ship (section 20(2)(e))220
2.145 It appears that this head of claim is equivalent in nature to the maritime lien
for damage, save (i) for doubt that th e extension of the jurisdiction may not have
extended the maritime lien and (ii) any question whether statutory and judicial
developments in admitting novel heads of loss, damage and injury may not have brought
these heads within Admiralty claims. The mari time lien for damage was considered
earlier.
Link between damage and person or thing causing it
2.146 The damage must be the direct result of something done in the course of
navigation of the ship and the ship must be the "actual instrument" by which the d amage
was done. However there is no requirement of physical contact.
"The commonest case is that of collision, which is specifically mentioned in the
convention: but physical contact between the ship and whatever object sustains the
damage is not essential—a ship may negligently cause a wash by which some other
vessel or some property on shore is damaged." 221
Loss of life
2.147 It should be recalled that the reasoning which excluded claims for loss of
life from jurisdiction in rem was the view that while damage suffered by the claimant
was damage arising out of damage done by a ship it was not damage done by it. 222 If this
view is still followed a claim for loss of life will not fall under this head. In The
Jade223 two members of the Court of Appeal seemed to read "damage received by" and
"damage done by" as including "damage arising out of" so as to include consequential
loss. The line distinguishing a claim for loss of life from a claim for consequential loss
is thin and should be erased.
Economic loss
2.148 In The Jade the ability to recover for consequential loss was based on the
inclusion of pecuniary loss through liability to a third party. If this be right there is no
reason why economic loss should not be a ground of claim within the provision. 224
Pollution claims225
(i) Oil pollution
2.149 Whether or not a pollution claim attracts a maritime lien the jurisdiction
based on "damage done by a ship" extends to such claims 226 in respect of liability under
the Merchant Shipping Act 1995 for oil pollution claims 227 in accordance with (i) the
International Convention on Civil Liability for Oil Pollution Damage 1992 ("the
Liability Convention") and (ii) the International Conven tion on the Establishment of an
International Fund for Compensation for Oil Pollution Damage 1992 (the "Fund
Convention") as enacted into English law. 228 There is therefore jurisdiction both in
personam and in rem.
"THE LIABILITY CONVENTION"
2.150 The Liability Convention of 1969 was implemented in English law initially
through the Merchant Shipping (Oil Pollution) Act 1971. The Convention was amended
by the 1992 Protocol and once the Protocol came into force and was enacted, became
the "1992" rather than the "1969" Convention. The Merchant Shipping (Salvage and
Pollution) Act 1994 made provision for the amendment of the 1971 Act and the
consolidation in the Merchant Shipping Act 1995 contained transitory provisions
pending the entry into force and enactment of the amendment. 229 The Protocol came into
force on 30 May 1996 but the transitory provisions (as amended) were continued in
force for a transitional period while the 1969 and 1992 Conventions both operated. 230
That ceased for the United Kingdom when it ceased to be a party to the 1969 Liability
Convention. The transitional provisions were revoked on 16 May 1998. 231
2.151 The statutory scheme of the Act is to provide for exclusive and, subject to
certain narrow exceptions, strict liability of the shipowner for damage or cost caused by
discharge or escape of oil from a ship constructed or adapted for carrying oil in bulk.
Liability under the Act extends to damage or cost occurring in the territory of the United
Kingdom and if such damage or cost occurs, also in the territory of a Convention
country. Relevant damage is that caused by contamination, 232 flowing from measures
reasonably taken after the discharge or escape to prevent or minimise the damage, or
flowing from preventative or minimising measures taken where there is a grave and
imminent threat of such contamination. Relevant cost is that incurred by the taking of
preventative or minimising measures. 233
2.152 The shipowner must obtain insurance or other securi ty to cover liability. An
action will lie directly against the insurer or person providing the security. The
shipowner and insurer may limit liability. 234 Where liability is limited the distribution
of a limitation fund is not affected by any "lien or other right in respect of any ship or
property".235 This is a like consequence to that following from or establishing a fund for
global limitation. Together with the provision that liability under the Act cann ot be
enforced save through an action under the Act it means that the establishment of a fund
not only leads to the release of any security but removes any arguable "lien" interests. 236
"THE FUND CONVENTION"
2.153 The Fund Convention was implemented in English law initially through the
Merchant Shipping Act 1974. The Convention was amended by the Protocol of 1992
and once the Protocol came into force and was enacted the Convention became the
1992, rather than the 1971, Convention. The process of enactment was identical to that
of the Liability Convention (see supra), the transitional provisions being continued to
11 May 1998, and then revoked. 237
2.154 Under the Convention a Fund is established through contributions of oil
importers and receivers. In accordance with the Convention the Act creates a right
against the Fund of further compensation by a claimant under the 1971 Act who has
failed for a reason specified in the 1974 Act to recover full compensation for damage or
cost.238 The headquarters of the Fund is presently in London and because of that the Act
provides for liability under it in respect not only of damage in the United Kingdom but
also in a Fund Convention country wher e proceedings under the Liability Convention
have been brought in a non-Fund Convention country.
2.155 The Fund incurs no liability if it proves that the damage was caused by the
escape of oil from a government ship not being used commercially or the claim ant
cannot prove the damage resulted from an occurrence involving a ship identified by
him.239 Save where the damage consists of the cost of or damage caused by preventative
measures the Fund is exonerated from liability if it proves that the damage result ed from
the intentional or negligent act of the person suffering it. The Fund is subject to overall
limit and to allow an opportunity for that reduction any judgment against it may only be
enforced with leave of the court. 240
A third tier of compensation
2.156 Contracting states may elect to become parties to the 2003 Protocol to the
1992 Convention. This came into force on 3 March 2005, 241 a Supplementary Fund for
compensation is established. Compensation is to be paid from a fund made up of
contributions from parties if the total damage exceeds or there is a risk that it will
exceed the limit of the Convention in respect of one incident up to a specified limit.
(ii) Pollution damage other than by oil
The Convention on Liability and Compensation for Damage in Connection with
the Carriage of Hazardous and Noxious Substances by Sea (the HNS Convention)
2.157 The substantive text of the Convention is set out in Schedule 5A of the
Merchant Shipping Act 1995 inserted by the Merchant Shipping and Maritime Security
Act 1997. Effect may be given to its provisions whether or not in force in United
Kingdom laws by Order in Council. 242
2.158 The Convention was agreed on 9 May 1996 and will come into force 18
months after (i) at least 12 states have expressed their consent with at least four with not
less than 2 million units of gross tonnage and (ii) persons in such states liable to
contribute to the HNS fund have received during the preceding calendar year a total
quantity of at least 40 million tonnes of contributing cargo. 243
2.159 The Convention applies to damage caused by any of listed types of
substances, but does not apply to damage within the scope of the Oil Pollution Liability
Convention,244 to specified radioactive material or to claims arising out of the carriage
of goods or passengers. Geographically the Convention applies to any damage within its
scope:
(a) on the territory of a State Party;
(b) by contamination in the exclusive economic zone o r an equivalent of a State
Party;
(c) outside the territory of any State if caused by a substance carried on a ship
registered in a State Party or an unregistered ship flying the flag of a State Party.
A State Party may declare that the Convention does not apply to ships exceeding '
gross tonnage which carry substances within the Convention only in package form, or
while engaged within a State. 245 There are provisions for jurisdiction and recognition
and enforcement of judgments 246 (see Chapter 3).
2.160 The statutory scheme follows a similar pattern to the Oil Pollution Liability
and Fund Conventions. With narrow exceptions there is exclusive strict liability on the
owner.247 There is an entitlement to limit liability unless it is proved that the damage
resulted from the owner’s personal act or omission with intention to cause the damage
or recklessly with knowledge that it would probably result. To benefit from the
limitation the owner must constitute a limitation fund in a State Party. Save for a priority
for death and personal injury the fund is to be distributed proportionately to the
claim. 248 As applied to global and oil pollution limitation funds, the fund is the only
asset of the owner which is to meet the claim and any ship arrested or other security
provided in a State Party is to be released. 249 Any claim must be brought within three
years of the date of knowledge of the damage and identity of the owner or in any event
within ten years of the incident. 250 The owner must maintain compulsory insurance and
the certificate must be carried on board the ship. A State Party must not permit a ship to
trade without holding one. 251
The HNS Fund 252
2.161 As with the Oil Pollution Fund the purpose is to provide compensation for
Convention damage following the inability of a person suffering damage to obtain full
and adequate compensation against the owner or any other person liable because of lack
of liability or funds. Liability is limited to specific amounts. 253 A claim against the fund
must be brought or notified within three years of knowledge of the damage or in any
event with ten years.254
2.162 The fund is to be made up of a number of accounts to be available either
generally or for damage caused by specified substances. Contributions are payable on
the basis of "contributing cargo", i.e. receipt of a specified amount of cargo in respect of
the particular amounts. 255 A State Party may optionally assume responsibility to pay
contributions.256
NUCLEAR DAMAGE
2.163 A legislative framework establishing rights and duties in respect of use of
nuclear material in the United Kingdom and carriage of such materials within and
outside the United Kingdom and compensation for damage or injury is established by the
Nuclear Installations Act 1965. There are provisions for the imposition of an exclusive
liability regime, channelling of liability, compulsory insurance and limitation of
liability. However, nothing in that Act is to affect the operation of specified statutes
enacting Conventions relating to carriage by air, road and sea. Any payments made
under the Carriage Conventions by a person other than the person liable under the 1965
Act may be a basis of claim under that Act.
2.164 In contrast to oil pollution damage, the separate category of damage caused
by nuclear matters is defined by the cause of the injury or damage. It may be argued that
injury by radiation is novel, but it is physical injury. Any physical injury or damage
caused, for example, by an explosion is precisely the type of damage that falls within
the ambit of that which, if caused by a ship, may be the basis of Admiralty jurisdiction.
2.165 There are no provisions excluding liability under the 1965 Act from
Admiralty jurisdiction as such but such action cannot be brought by an action in rem.257
No breach of duty under the 1965 Act can give rise to a lien on any ship or aircraft.
(c) Any claim for loss of life or personal injury, etc. (section 20(2)(f))
2.166 "(f) any claim for loss of life or personal injury sustained in consequence of
any defect in a ship or in her apparel or equipment, or in consequence of the wrongful
act, neglect or default of—
(i) the owners, charterers or persons in possession or control of a ship; or
(ii) the master or crew of a ship, or any other person for w hose wrongful acts,
neglects or defaults the owners, charterers or persons in possession or control of a ship
are responsible,
being an act, neglect or default in the navigation or management of the ship, in the
loading, carriage or discharge of goods on, in or from the ship, or in the embarkation,
carriage or disembarkation of persons on, in or from the ship;. . .".
2.167 This head of claim reflects and elaborates on Article 1(b) of the Convention
Relating to the Arrest of Sea Going Ships 1952. Prior to th e Act of 1956 such claims
were not the subject of separate provision but were statutorily dealt with by providing
that for the purposes of Admiralty jurisdiction "damage" included loss of life and
personal injury. 258 The removing of the claim from the gene ral provision regarding
"damage" means that the restriction necessarily imposed through requirements that the
ship is the instrument of mischief does not apply. So the provision covers claims for
injuries suffered on board the relevant ship. 259
2.168 Despite its separation the provision does not create a substantive right 260 any
more than do any of the grounds of jurisdiction, but simply provides that any claim for
loss of life or personal injury will lie in Admiralty. 261 An action relating to loss of life
lies only within the terms of the Fatal Accidents Act 1976 262 or the Law Reform
(Miscellaneous Provisions) Act 1934.
2.169 The provision as it appears in the Supreme Court Act 1981 is identical in
substance with that of the Act of 1956 but differs from the comparable Convention
provision. The Arrest Convention 1952 provides simply for "loss of life or personal
injury caused by any ship or occurring in the operation of any ship". The equivalent
provision in the Arrest Convention 1999 is "loss of life or personal injury occurring,
whether on land or on water, in direct connection with the operation of this ship",
thereby perhaps emphasising the causal link. The more elaborate statutory provision
requires the loss of life or personal injury to be linked to a defect in a ship, neglect or
default263 in navigation, management of the ship, loading, carriage or discharge of
goods, embarkation, carriage or disembarkation of passengers.
2.170 Neither Convention nor Act is limited to loss of life and injury occurring
outside the ship at which the action is aimed. Apart from this the contrast between the
provisions relating to claims generally based on damage done by or received by a ship
and to those for loss of life and personal injury is striking. Their statutory relationship is
far from clear. First, as has been seen, "damage" includes personal injury and, it has
been argued, should include "loss of life", secondly, the loss of life and injury provision
quite specifically links the claims to individual liability and responsibility of the owner,
charterer, a person in possession or control or any person for whose acts those persons
are responsible or the master 264 or crew. Thirdly, the loss of life and injury provision
specifies the context of the act—so that, for example, the act in Currie v. M’Knight265
(cutting of the mooring rope) would not fall within the provision. As the provision is
jurisdictional and does not create a substantive right it may be wondered whether the
spelling out of the criteria is necessary, and whether the more succinct phraseology of
the Convention might not have been clearer. Claims for injury or loss of life not within
this statutory category may be construed to fall within "damage done by a ship".
(d) Any claim for loss of or damage to goods carried in a ship (section 20(2)
(g))
The nature of the claim
2.171 The provision is not limited to any particular legal basis of claim and there
seems no reason to restrict it. 266 In The Tesaba267 salvors strove to squeeze into the
provision a claim based on Lloyd’s Open Form alleging failure of shipowners to use
their best endeavours to ensure that cargo owners provide security before release of
cargo. Sheen J. held that, giving the words of section 20(2)(g) "their ordinary and
natural meaning", they did not describe the claim before him. The basis of the claim
appears to have been loss to the salvors of the chance to enforce their maritime lien o n
the goods, but as Sheen J. said, the lien remained in being. 268 Even if, as would appear
strongly arguable, the statutory provision includes loss of the right to the goods and
should not be restricted to physical des truction of the goods, the lessening of the
opportunity to enforce the lien can hardly amount to "loss of goods".
“The ship”
2.172 There is a tendency to confuse the nature of the claim with the ability to
bring an action in rem to enforce it. As a result it is not always clear whether an action
in personam lies in Admiralty. In The Jade269 in the Court of Appeal, Sir Gordon
Willmer thought that, looking at the statutory words "in their natural and ordinary sense",
"the ship referred to in para. (g) must be the carrying ship". That is surely correct but it
does not follow from the provision that the claim must be against that ship or any
person connected with it.
2.173 In The Jade both the House of Lords and Court of Appeal held that a claim
under paragraph (g) could be enforced by an action in rem only if the action was against
the carrying ship. The basis for this reasoning lies not in the wording of paragraph (g)
but in that of the statutory provisions governing the bringing of the action in rem (i.e.
section 2 1(4) of the Act of 198 1). 270 Based on the requirement (in section 21(4)(a)) that
the claim must arise "in connection with a ship" it is said that an action in rem will lie
under section 20(2) only against the ship in connection with which the claim arose or a
sister ship. If this is right in any event in most cases cargo owners will be able to use
paragraph (e)—damage done by a ship—as a basis for a claim in rem unconnected with
a carrying ship, and should be able to use whichever paragraph is approp riate as a
foundation for a claim in personam.
Effect of “sweeping up ” provision on the definition of “the ship”
2.174 As has been said, a jurisdictional ground in the Supreme Court Act 1981 is
"any jurisdiction vested in the High Court immediately prior to the Act". It follows that
the Act of 1956 and any other extant statute conferring jurisdiction must be taken into
account. If this ground brings in statutory provisions now repealed 271 it becomes even
more important to distinguish between the nature of the claim and any restriction
imposed in its enforceability through an action in rem. The jurisdiction relevant to
paragraph (g) in so far as it is exercised in relation to a non -carrying ship has its root in
the Administration of Justice Act 1920, section 5, and the Supreme Court of Judicature
(Consolidation) Act 1925, section 22(1)(a)(xii) (which replaced the provision of the
Act of 1920). Both statutes provide simply for exercise of jurisdiction in personam or
in rem, and any restriction to the carrying ship having its root in the Supreme Court Act,
section 2 1(4), has no application to jurisdiction exercised pursuant to the Acts of 1920
and 1925.
2.175 As a result, it is unclear whether an action in personam will lie within the
Admiralty jurisdiction in relation to a claim based on paragraph (g) but not brought in
relation to the carrying ship. As to the inability to bring an action in rem, unlike
paragraph (d) the inability is based simply on a construction of the statute in the context
of the Arrest Convention. The linking of the requirement in section 2 1(4) that a
prerequisite of the action in rem is a claim "in connection with a ship" to the definition
of the claims in section 20(2) (and hence to the ship against which an action is brought)
is perhaps not as clear as asserted in The Jade. It would have been a simple matter to
specify that link had it been intended.
“The goods”
2.176 It is provided by the Supreme Court Act 1981, section 21(4)(a), that goods
include "baggage". In The Jade Brandon J. held that such "baggage" was restricted to
passengers’ or travellers’ baggage only. It did not extend to the "belongings of those who
are on board ship not as passengers or travellers, but as employees of the shipowners in
order to man and operate" the ship. 272 As a consequence master and crew have no
Admiralty action for damage to their belongings in relation to the ship on which they are
employed. If this be correct it is a curious anomaly. The restrictive view is based on the
decision in 1883 in R. v. The Judge of the City of London Court 273 which relied on the
comparison as between "goods" and "luggage" to exclude "passenger luggage". While it
may be conceded that "goods" as used in the context of a carriage claim were or iginally
restricted to those carried under a contract of carriage of cargo, the statutory extension
to "baggage" is surely capable of including belongings of all those on board. 274
"Loss or damage"
2.177 The claim clearly covers a claim based on physical d amage but beyond that
its scope is unclear. In The Jade it was conceded that consequential loss was included
in relation to paragraph (e) "damage received by a ship" and the question is whether
"loss or damage to goods" restricts the claim to such loss or damage or includes any
claim based on such loss or damage. Without express restriction it seems unnecessarily
complex to draw the boundaries of Admiralty jurisdiction according to the type of
damage when more than that type can be the basis of the same action before another
Division of the High Court. It is, therefore, suggested the consequential loss should be
recoverable.275
(e) Any claim arising out of an agreement relating to the carriage of goods in a
ship or to the use or hire of a ship (section 20(2)(h))
2.178 This head of claim incorporates two heads of Convention claim, 276 is
identical with the wording of section 1(h) of the Act of 1956 and joins in one head two
subheads of section 22(1)(a)(xii) of the Supreme Court of Judicature (Consolidation)
Act 1925. Prior to 1920 the Admiralty Court’s jurisdiction extended only to claims
based on a bill of lading for damage to goods brought against the carrying ship. 277
Clearly, claims based on carriage of goods under paragraph (h) overlap with claims
based on damage to goods under paragraph (g) but the claim under paragraph (h) 278
must be based on the agreement. So, a broker, not a party to the agreement, could not
bring an action within the statutory provision for commission provided for by a clause
of the agreement. 279 However, in 1984 it was held that subcharterers claiming in
negligence against shipowners with whom they had no contract could base the claim on
the statutory provision. 280
2.179 In The Jade Brandon J. stressed that early authorities construing the statutory
provision conferring jurisdiction on county courts as to agreements relating to the use or
hire of a ship should be approached in their context. 281 Between 1869 and 1920 only
county courts had this jurisdiction and there was a tendency to interpret it restrictively.
So, for example, there was judicial disagreement as to whether claims arising out of
charterparties fell within the provision. 282 In The Jade, in the House of Lords, Lord
Diplock agreed that the provisions conferring jurisdiction on the High Court should be
given "their ordinary wide meaning". 283
Claim arising out of an agreement relating to the carriage of goods in a ship
2.180 This part of paragraph (h) can be read as inc luding claims falling within
paragraph (g), and it encompasses claims such as a claim by the shipowners which
would not fall within (g). In The Jade, in the Court of Appeal, it was said 284 that "the
ship" referred to is the carrying ship, but even if this be right (as for paragraph (g)) it
does not of itself mean that any ship proceeded against must be that ship or that the
defendants are connected with that ship. 285
2.181 "Arising out of". The head of claim simply defines the agreement out of
which the claim must arise. It would be possible, therefore, to base a claim on
paragraph (h) even though it did not relate directly to the carriage of goods. Although
the enforcement of an arbitration award contained in such a contract has therefore been
held to fall within it, the most recent decision is to the contrary on the basis that the
arbitration agreement out of which it arises is not sufficiently directly related to the
carriage.286
2.182 In 1985 in The Antonis P. Lemos 287 the House of Lords rejected the
arguments that (i) the phrase limited the claims to those based on contract or (ii) those
based on tort that were directly connected with an agreement between the parties. In
respect of the first argument Lord Brandon relie d on the context of the phrase in the
statutory structure of Admiralty jurisdiction as a whole and the relationship between that
provision and the Convention Relating to the Arrest of Sea Going Ships which it
implemented. As regards the second contention L ord Brandon thought there was no such
restriction in the wording and no reason to import one. 288
2.183 "Relating to". In The Sandrina,289 a Scottish case, the House of Lords took
the opposite view of this phrase to that later taken of "arising out of", in that the House
chose the narrow construction. The issue was whether an agreement to pay premiums on
a policy of insurance of cargo was within the head of the claim. Lord Keith (with whom
all members agreed) argued that the meaning must be wider than "for", but thought that
there must be "some reasonably direct connection" with the carriage or hire. The
contract of insurance did not provide such a connection. 290
2.184 It has to be said, with respect, that the basis of that view is not apparent,
refuge being taken in the principle that each case must be decided on its own facts. Lord
Keith thought, however, that the reasoning of the Court of Session (Lord Wylie) in The
Aifanourios291 in reaching a similar decision had "much force". Lord Wylie pointed out
that a wider reading would bring within the head of claim many agreements dealt with
as separate heads of claim—as, for example, supply of goods and materials, liability for
dock dues. Further, insurance was directed to the convenience or protection of the
owner and was not essential for the operation of the ship. 292
2.185 In 1991 in The Maersk Nimrod 293 The Sandrina and The Aifanourios were
relied on by Phillips J. in holding that neither a c.i.f. contract for the sale of fuel oil nor
the demurrage provision of it was a "contract relating to the carriage of good". The
central feature of the c.i.f. contract is not carriage and the question was whether
"relating to" was to be read brodly or narroely. Citing Lord Keith in The Sandrina on
the need for a "sufficiently direct connectn", Phillips J. thought it not of great assistance
but nevertheless confirmed his conclusion. There is unfortunately n o guidance as to why
the undoubted connection with a contract of carriage was not sufficiently direct.
2.186 Phillips J. also held first that it was possible to sever an agreement
concerned with carriage of goods and other matters so as to isolate the carr iage and
bring a claim on that aspect within Admiralty jurisdiction. However, the demurrage
claim was an agreement relating to discharge of the cargo. In any event in relation to
loading and unloading, the distinction between use of a ship and carriage of goods was,
thought the judge, a fine one and he agreed with the conclusion reached on authority. Yet,
even more than the supply of containers, it is difficult to see any purpose in a contract to
load or unload than to support a contract of carriage of good s. If, as said in The
Sandrina, "relating to" cannot mean only "for", a more direct connection is difficult to
imagine.
2.187 The approach to both phrases is simply to assess whether the connection is
sufficient for a claim "to arise out of" a contract "relating to" carriage. It seems that
Lord Wylie’s approach (matched by that of Lord Brandon in The Antonis P. Lemos), that
the provisions must be construed in context, holds the key. It seems a trifle unrealistic to
exclude insurance claims on the ground that they are for the convenience of the owner
rather than the operation of the ship when the head of claim focuses on the contract and
not the ship—but not to adopt the general restrictive approach given other provisions
which would otherwise overlap. The issue will be resolved if the Arrest Convention
1999 becomes English law—it is there specifically provided that insurance premiums
are a head of claim (paragraph 1(q)).
2.188 The approach does not necessarily undermine the view that an arbitration
award may be in the category. In that context the underlying claim is the contract of
carriage and the issue turns on whether the link between it and the arbitration agreement
is sufficiently direct (see infra).294 Further, following the approach in The Maersk
Nimrod, it may be possible to argue that an agreement to insure forming part of a
contract or part of a contract dealing with other matters might form a sufficiently close
connection. The uncertainty of Lord Keith’s approach is demonstrated by his
disapproval of an earlier decision of Sheen J. in The Sonia S.295 that a contract under
which containers were leased to shipowners for carriage of goods was a contract
relating to the carriage of goods. As Sheen J. said, the only purpose of the container
contract was the carriage of goods—and it has to be said the context argument which
may exclude insurance would, if anything, support the inclusion of the container
contract.296
2.189 In The Tesaba297 a salvor attempted to bring within the provision an action
based on an alleged failure by owners of a salved ship:
(i) not to remove the salved property without the salvor’s consent; and
(ii) (contrary to Lloyd’s Open Form) to use their best endeavours to ensure that
cargo owners provided security prior to releasing the cargo.
2.190 In rejecting the argument for inclusion in the paragraph, Sheen J. said: "if the
ordinary businessman were to be asked "Is that an agreement relating to the carriage of
goods in Tesaba?" the answer would undoubtedly be "No".298
2.191 The conclusion to be drawn is that the claim (in a wide sense) must "arise
out of" (i.e. rely on) an agreement directly relating to carriage of goods, 299 it not being
sufficient that the agreement is to further such carriage or, perh aps, has no purpose save
in so doing. The approach seems unduly and unrealistically restrictive and should be
applied only insofar as to require a less direct connection would not make sense given
the other heads of jurisdiction.
Agreement relating to the use or hire of a ship
2.192 The general principles applicable to agreements relating to carriage of
goods apply. The provision is to be given "an ordinary wide meaning". 300 So it has been
held to include (e.g.) charterparties, 301 a management agreement entitling one party to
enter into charterparties for a vessel, 302 towage contracts, 303 salvage agreements, 304
contracts represented in bills of lading, 305 and contracts for mooring services by
watermen using motor boats. 306 The agreement need not be connected with the carriage
of goods and it has been said that the provision would include "any agreement which an
ordinary businessman would regard as within it". 307
2.193 In The Aifanourios the claimants attempted to bring a contract to pay
premiums under this sub-head as well as that of carriage of goods. And, indeed, it was
perhaps in this context that they stood a greater chance. As has been said, however, the
Court of Session rejected the argument on the basis that the provision, if read widely so
as to include a contract of insurance, would mean that many of the other heads of
jurisdiction were meaningless. It may be, however, that a contract of use or hire (e.g. a
demise charterparty or an instalment sale contract) including an insurance clause
provides sufficient link for the argument to succeed. This may be particularly relevant to
arrangements for long-term financing which will undoubtedly both be "hire" contracts
and include clauses relevant to insurance.
THE NEED TO IDENTIFY "A SHIP"
2.194 In The Lloyd Pacifico 308 Clarke J. applied the reasoning of the House of
Lords in construing the head of claim of supply of goods or materials to a ship
(paragraph (m), see infra) to hold that at least for an action in rem to lie the contract
must relate to an identifiable ship. The contract in question was for the carriage of
containers containing cargoes of coffee. Matching that requirement with the approach in
The Sandrina a claim fell within paragraph (h) if "the agreement has some reasonably
direct connection" with the use or hire of a ship or carriage of goods on a ship —that
ship being that which is named in the action. The judge accepted that the identification
could be made subsequent to the contract and that part of a contract only may fall within
the provision.309
2.195 The need for identification may have been inevitable given the decision in
The River Rima (see p. 78). The contract in question co ntemplated possible carriage
both on ships owned by the defendants, the owners of the Lloyd Pacifico, and vessels
chartered by them or engaged under a conference agreement or joint service. While,
therefore, it may be that the ships actually used were not so connected with the
defendants as to be the targets of an action in rem, that is a different question. As argued
in the context of The River Rima it is difficult to appreciate the need to identify a
particular ship for an agreement clearly providing for carriage of goods by ship to be
within Admiralty jurisdiction. This would be even more so if the agreement were
limited to a fleet of an owner. The case underlines the importance, however, of precise
drafting of a contract providing for general carriage and the nomination of a particular
vessel when implementing it. It is an approach displaying perhaps more legal
technicality than those in commerce might appreciate.
Salvage agreements as to the use or hire of a ship310
2.196 In The Tesaba, as has been said, the claim was based on the breach of a
salvage agreement contained in Lloyd’s Open Form. Sheen J. said that the question was:
" . . . whether the plaintiffs’ claim arises out of any agreement relating to the
carriage of goods in Tesaba or to the use or hire of Tesaba. The plaintiffs’ claim arises
out of a breach by the defendants of the terms of the salvage agreement, which was an
agreement to salve Tesaba and her cargo. It was a term of that agreement that the
contractor may make reasonable use of the vessel’s machinery gear equipment anchors
chains stores and other appurtenances during and for the purpose of the operations free
of expense. A further relevant term was cl.5311 quoted earlier in this judgment. Mr
Howard submitted that it was envisaged that the ship would be used to hold the cargo
until security had been given. If the ordinary businessman were to be asked ‘Is that an
agreement relating to the carriage of goods in Tesaba?’, the answer would undoubtedly
be ‘No’.
The same emphatic answer would be given to the question ‘Is that an agreement for
the use or hire of Tesaba?’."312
2.197 In The Jade a salvage agreement in Lloyd’s Open Form was held to fall
within the provision on the basis that the "only possible way in which the salvors could
perform their contract" was by using a tug to salve the ship in distress. The salvage
agreement, therefore, related to the use of the tug. The claims in The Jade were by the
owners of the ship and cargo salved for negligent performance of the agreement —or as
Lord Diplock put it more precisely "that part of the agreement for which a ship was to
be used".
2.198 In The Tesaba Sheen J. distinguished The Jade on the basis that in The Jade
the claim fell within paragraph (h) on Lord Diplock’s approach because the only way
that the contract could be performed was by the use of the tug. In The Tesaba the claim
was based on (i) the obligation not to release the cargo without sec urity, and (ii)
availability of the ship for the salvor to store the cargo until security was given. With
respect, Sheen J. ’s approach seems to confuse the nature of the claim with the nature of
the agreement. If the salvage agreement is an agreement relating to the use of a ship then,
on the wording of the provision surely any claim "arising out of" the agreement is within
the provision.
2.199 In The Jade the claim was brought by an action in rem by the shipowners
and cargo owners against the tug owners, whereas in The Tesaba it was sought to
enforce the claim by an action in rem by the salvors against the shipowners. However,
in both cases the action was brought against the hired or carrying ship. In The Conoco
Britannia313 and The Queen of the South 314 Brandon J. held that an action at the suit of the
owner of the hired ship would lie, but in The Jade Sir Gordon Willmer (in the Court of
Appeal) pointed out that such an action would not be said to be "in connection with" the
ship in relation to which the claim arose.
2.200 The requirement of the Supreme Court Act 1981, section 21(4), as held in
The Jade, is that an action in rem requires the claim to arise "in connection with a ship"
and that "ship" is the ship the subject of the agreement. It follows that in The Tesaba the
salvors could bring an action in rem,315 provided the head of claim is wide enough to
encompass a claim by the salvors in relation to the salved ship. It is suggested that the
head of claim is not so restricted as to exclude such a claim. 316
Claims on arbitration awards
2.20 1 An arbitration award may be enforceable as a judgment by leave of a judge
of High Court or by an action on the award. 317 Such an action is an action in personam.
In 1935 in The Beldis,318 the Court of Appeal held that proceedings in rem claiming a
sum payable under an award made in an arbitration held pursuant to a charterparty were
brought to enforce the award and did not arise out of the charterparty. The action would
not, therefore, lie. However, in 1933 the Court of Appeal in Bremer Oeltransport
GmbH v. Drewry319 held, in the context of an application for leave to serve a writ in
personam out of the jurisdiction, that an action to enforce an award was based on the
contract to submit disputes to arbitration. In 1983 in The Saint Anna 320 Sheen J.
followed the Bremer case rather than The Beldis, stressing that in an action on an award
the plaintiffs had to prove the award and the agreement which was its basis. Therefore,
if the contract containing the submission to arbitration was within Admiralty jurisdiction
any claim on the award was also within the jurisdiction.
2.202 In The Saint Anna the claim was linked to Admiralty jurisdiction through the
"admiralty" nature of the agreement containing the arbitration award. In 1981 in The
Stella Nova321 Sheen J. held that an action in rem would lie to enforce a claim based on
an agreement to submit disputes to arbitration provided that the claim arose out of an
agreement for the hire of a ship. Further, it was no obstacle that an award had been
made and that a judgment in personam had been obtained to enforce the award. In this
case the link of Admiralty jurisdiction was through the underlying basis of the claim, the
failure to satisfy which led to the arbitration agreement and ultimately the award. The
prerequisite for Admiralty jurisdiction was, therefore, an Admiralty root from which the
claim had sprung.
2.203 In 1999 Aikens J. in the Bumbesti322 disagreed with Sheen J. holding that the
Bremer case and the Beldis were dealing with different issues and that he was bound by
The Beldis. In the view of Aikens J. an action on an arbitration award clearly "arises
out of" the arbitration agreement, but that was distinct from the substantive agreement (in
this case a charterparty) and therefore is only "indirectly in relation to the use or h ire of
a ship". The alleged breach of contract had nothing to do with the use or hire of a ship
but is the failure to fulfil an award.
Comment
2.204 The Beldis approach seems to focus on the connection (or lack) between the
contract for the hire of the ship (i.e. the charterparty) and the award. So whether the
arbitration agreement was "related to" the charterparty never became a substantive
issue. If that be so, the narrow construction of "arises out of" can hardly stand wit h the
approach of the House of Lords in The Antonis P. Lemos (see above).
2.205 An arbitration agreement in a substantive contract or the submission to
arbitration implementing such an agreement can be categorised as separate from each
other—particularly so as to permit each agreement to exist independently. But, with
respect, that has little to do with the question of whether an arbitration award "arises out
of" the substantive contract containing the arbitration agreement. Just as it makes
complete sense not to make the validity of the agreements co -extensive, so it makes little
sense to see an award between the parties to the underlying contract as not arising out of
the contract the purpose of undertaking the arbitration process. 323
2.206 On that approach the arbitration agreement itself is but a link in a chain and
its connection with use or hire of the ship not an issue. Even if, as Aikens J. held the
award is seen as arising out of the arbitration agreement, any realistic view of such an
agreement in a charterparty would seem to be that it relates to the charterparty. As for
the award it has no purpose otherwise. The approach relied on in the Bumbesti in
substance applies the principle of separability in a context where it seems to deny both
commercial and legal reality. Unlike insurance claims ( see supra) there is no reason for
any restrictive approach because of other current heads of jurisdiction. 324
(f) Salvage (section 20(2)(j))325
2.207 The content and ambit of this head of claim depends on whether the salvage
service or act out of which the claim arises started (in the case of the service) or was
done (in the case of the act) prior to 1 January 1995. On that date the Merchant Shipping
(Salvage and Pollution) Act 1994 brou ght the Salvage Convention 1989 into English
law. Admiralty jurisdiction was widened to accommodate the Convention and to rid the
scope of the head of claim of some restrictions judicially imposed. 326
1. Salvage services started or acts done before 1 Janua ry 1995 “any claim in the
nature of salvage”
2.208 It is statutorily provided 327 that such claims include claims for life and
property salvage under the Merchant Shipping Act 1894 328 and claims in respect of
cargo and wreck found on land. 329 The power to apportion salvage awards (statutorily
provided in the Merchant Shipping Act 1894, section 556) is included either within the
statutory phrase or within the sweeping up provision —being a jurisdiction that "is
conferred" by a statute created since 1875. 330 As has been seen, a salvage agreement
may fall within paragraph (h) although it may well be that claims "arising out of" such
agreement would not fall within paragraph (j) —directed as it is to the nature of th e
claim itself.
2.209 In The Jade331 both Brandon J. and the Court of Appeal took the view that a
claim for damages against a negligent salvor fell outside paragraph (j). In The Tesaba332
the claim was against the owners of the salved ship and was based on alleged breach of
Lloyd’s Open Form in failing to obtain security from the cargo owners. Sheen J. thought
that the phrase "any claim in the nature of salvage" referred to a claim for a salvage
reward and that the claim arose out of the defendant’s conduct after the completion of
salvage service.
2.210 From the authorities of The Jade and The Tesaba, and indeed from the
statutory wording, it appears that the head of claim is restricted to a claim in relation to
salvage service, but it does not follow that the jurisdiction in relation to such a claim
excludes such connected matters as apportionment or abatement or claims against the
salvor. Matters connected to a claim, it is suggested, are within paragraph (j), 333 and
exclusion of claims against the salvor seems to have little in principle to support it.
2.211 Apart from the question of life and property salvage falling within the
Merchant Shipping Act 1894, sections 544 and 546, there is no hint that any claim
would not attract a maritime lien. The extent of the "salvage" claim and the effect of
these statutory provisions have been discussed in the context of "maritime lien
claims".334
2. Salvage services or acts done on or after 1 January 1995
2.212 Section 20(1)(j) of the Supreme Court Act provides for Admiralty
jurisdiction in respect of:
"any claim—
(i) under the Salvage Convention 1989 335; or
(ii) under any contract for or in relation to salvage services 336; or
(iii) in the nature of salvage not falling within (i) or (ii) above."
2.213 It is statutorily provided that (ii) includes any claim "arising out of" such a
contract as is specified whether or not arising during the provision of services and that
"salvage services" includes services rendered in saving life from a ship. 337 The
provision now undoubtedly includes actions by a salvor and the type of claim for breach
of contract excluded from the former provision by the decision in The Tesaba. As
regards (ii), however, it brings into play issues of construction relevant to the
agreements for carriage or hire of a ship —the meaning of "arising out of" and "in
relation to" .
2.214 There is no reason to adopt a restricted approach to either phrase. The wide
meaning given to "arising out of" in The Antonis P. Lemos should be adopted while the
narrow view of "related to" expressed in The Sandrina should be confined to its own
context. So there is no reason why a contract to provide equipment for salvage s ervices
should not be seen as within the phrase —unlike the claim in respect of insurance it
would not render other heads of claim unnecessary. 338
2.2 15 The width of the head of claim makes it clear that it includes claims which
do not attract a maritime lien—as regards both the Convention and the contract for
salvage services. 339 As discussed in the context of the salvors’ maritime lien 340 the
Convention provision that nothing in the Convention "shall affec" the lien may mean tha t
there are now differences in content between a salvors’ claim and the maritime lien
attaching to it. If this be so, the jurisdiction over"‘maritime lien" in section 2 1(3) may
take on a substantive role —but there is no doubt that the statutory jurisdicti on
encompasses both.
(g) Any claim in the nature of towage in respect of a ship (section 20(2)(k))341
2.216 The Admiralty Court Act 1840 provided that the Admiralty Court should
have jurisdiction over claims "in the nature of towage" . 342 In 1849 Dr Lushington
"without attempting any definition which may be universally applied" described a
towage service as "the employment of one vessel to expedite the voyage of another
when nothing more is required than accelerating her progress". 343 In formulating the
definition he was concerned to differentiate towage from salvage. Subsequent
authorities have followed with that focus, there being few concerned with the
jurisdictional boundary in respect of a towage claim. Again, in contrasting towage and
salvage, it has been said that towage arises out of contract and it has been held that there
is no jurisdiction to award a sum in addition to the contract as remuneration for services
rendered.344 In one of the few cases concerned with the boundary of towage it was held
in The Leoborg345 in 1951 that escorting a ship from outside a port into a port is service
in the nature of towage.
(h) Any claim in the nature of pilotage in respect of a ship (section 20(2)(l))346
2.217 Pilotage (i.e. the remuneration due for pilot services) did not appear as a
statutory ground for Admiralty jurisdiction until the Administration of Justice Act 1956.
But the Admiralty Court exercised jurisdiction in rem and in personam prior to 1840.347
(i) Any claim in respect of goods or materials supplied to a ship for her
operation or maintenance (section 20(2)(m))348
2.218 This head of claim (together with (n) concerned with ship repair and dock
dues) incorporates much that was covered by the age -old claim for "necessaries". 349
Although there is clearly now no requirement of "necessity" 350 the previously wide
construction of that requirement makes the change of relatively little substance. It has
been judicially said that the claims covered "are certainly no narrower" than
necessaries and held as a consequence that the provision covers payments made by way
of advance to enable goods and materials to be supplied. 351 A claim for repayment of
money paid by an agent to suppliers of identified ships will fall w ithin the provision
unless the contract indicates some basis of the claim other than the supply. The fact that
the money had been paid on account would not exclude the claim —it remains "in
respect of" goods supplied to ships. 352 Even more broadly and despite the suggested
focus of the phrase on "purely physical items" provision of crew services is within it.
As there were "necessaries" they fall within the scope of the current terminology. 353
Such an approach is consistent with the "broad liberal construction" which should
follow because the provision is derived from the Arrest Convention.
2.219 The provision requires a causative link between the supply of goods or
materials and the operation or maintenance. 354 Clearly, the supply of material includes
fuel, but in The Queen of the South 355 Brandon J. seemed to favour the restriction of
"supply" to contracts for sale or hire in which the property or possession of the goods or
materials passes to shipowners. It would be unfortunate for this head of claim to be
bedevilled with concepts of the passing of property or possession. The essence is the
supply and through the supply the benefit conferred. It should not be accepted withou t
argument that the concepts of "property" and "possession" (somewhat artificial in the
context of supply) create limitations in this context.
2.220 In 1988 in The River Rima 356 the House of Lords construed the provision
even more restrictively, holding th at it applied only where the "supplied" ship is
identified either in the supply contract or prior to its performance. In that case it was not
enough that the contract was with a shipowner for the use of containers on a ship owned
by the shipowner, with the identity of the ship being at the discretion of the shipowner.
That view accords with an in rem approach with a particular ship as the central feature
of the "necessaries" action 357—but regrettably rather more doubtfully perhaps with
commercial practice.
2.221 Goods supplied to a shipowner for use on a ship of his are surely (as Sheen
J. held in this case) "supplied to a ship for her operation or maintenance". 358 This
phraseology appears in the Arrest Convention, but Lord Brandon disposed of argument
based on the need to reflect that Convention by construing the Convention in accordance
with English law prior to the Convention. While the claims within the Convention 359
may have been based on those within English Admiralty jurisdiction it is at least op en to
question whether those drafting the Convention intended to adopt the technical
characteristics of the action in rem.360 Basing the Convention on the broad claims in the
English Act hardly justifies imposing restrictive technicalities on their enforce ment.
Relevance of liability in personam
2.222 Authorities on the need for or relevance of the owner’s liability in personam
as a prerequisite for an action in rem for necessaries are now irrelevant in so far as the
framework for the bringing of such an action is set out in section 21(4). 361 Still relevant,
however, to the nature of the claim are:
(i) the potential liability in personam required by section 2 1(4), and in particular
the issue of liability for the acts of an agent;
(ii) the proposition that a person paying or advancing money to obtain
necessaries
has the priority in rem of the person who is paid or to whom the money is advanced 362
and
(iii) the question whether a claim where a payment is made relyi ng on the personal
security of the owner can be made in rem under this head.363
(j) Any claim in respect of the construction, repair or equipment of a ship or in
respect of dock charges or dues (section 20(2)(n))
2.223 This head of claim reflects faithfully the Arrest Convention 1952. 364 It
includes claims formerly within "necessaries" and the comments made in respect of
paragraph (m) apply. Independently of this head of claim a ship repairer may exercise a
possessory lien and public authorities have statutory rights of detention and sale in
respect of claims for ship, passenger and goods dues 365 and charges.
(k)Any claim by a master or a member of the crew of a British or non-British
ship366 for wages (including any sum allotted out of wages or adjudged by a
superintendent to be due by wages) (sections 20(2)(o), 24(2)(a))
2.224 This provision reflects Article 1(l)(m) of the Arrest Convention —"a claim
arising out of. . . wages of masters officers or crew". 367 The Supreme Court Act, section
20(1)(b) and 20(3)(a) further provide for jurisdiction in personam in respect of
applications under the Merchant Shipping Act 1995. 368 Provided "application" is
construed to include any "claim", the recovery of money or prop erty by master or crew
under the Merchant Shipping Act 1995 falls within Admiralty jurisdiction ( see infra).
Claims for wages
2.225 Jurisdiction under paragraph (o) is restricted to wage claims by the master
or member of the crew. The concept of "wages" is as it is in the context of maritime lien
(see supra)368 and the kind of claim is identical with the jurisdiction based on the
maritime liens for seamen’s and masters’ wages 369 with the exception that "members of
the crew" may be a narrower concept than "seamen". However, subject to any
restriction to in personam jurisdiction (as to which see supra), through the sweeping up
provision of the Act of 1956 maintained by the Act of 1981 any jurisdiction founded on
"seamen" as distinct from "members of the crew" survives. In 1981 in The Silia,370 a
case decided under the similar wording of the Act of 1956, Sheen J. apparently did not
accept the argument that a claim by a Greek Pension Fund in respect of unpaid
contributions was made "for the benefi t of" the master or crew. It is not clear whether
the rejection was on the facts or on the grounds that, even if it was for their benefit, it
was not by the master and crew. It seems from the Supreme Court Act 1981 that any
claim must at least be authorised by the master or crew.
2.226 Claims by a third party based on the payment of wages must presumably be
founded on a head other than paragraph (o). In so far as the basis of the claim is a
maritime lien (as it usually is) a claima nt may rely directly on section 21(3) which
provides jurisdiction without reference to the claims listed in section 20. In so far as it
may be sought to enforce the claim through an action in rem, without relying on the
maritime lien or through an action in personam, the current statutory jurisdiction rests
either on the acceptance of transferability of the claim or (possibly) on the sweeping up
provision.
Recovery of money or property under the Merchant Shipping Act 1995
"CLAIMS" AND "APPLICATIONS"
2.227 In contrast to the equivalent provisions in the Administration of Justice Act
1956371 there is no specific reference in the jurisdictional heads of section 20(2) of the
Supreme Court Act 1981 to the recovery of money or property apart f rom wages.
However, section 20(7), which declares that the provisions apply to all ships whether
British or not wherever the residence or domicile of their owners may be, specifically
provides that it shall not be construed as extending the cases in which money or
property is recoverable under the Merchant Shipping Act 1995. More substantively, the
Act provides (in section 20(3)) specifically for jurisdiction in personam in respect of
"any application" under the Merchant Shipping Act 1995. 372 As said above, a claim for
money or property under those Acts if considered an "application" will be within the
ambit of section 20(3).
2.228 Claims for money or property by seamen or masters are ba sed on the
Merchant Shipping Act 1995. Claims in respect of medical expenses, 373 relief and
maintenance in respect of being left behind or taken after shipment to a foreign
country, 374 or property of a deceased seaman or master fall within Admiralty
jurisdiction if they are "applications" within the Supreme Court Act 1981, section 20(1)
(b), or are wage claims. The change in wording from the Act of 1956 while no doubt
bringing the jurisdictional framework more in line with the provisions of the Merchant
Shipping Act (now 1995), did not dispel the jurisdictional fog.
2.229 The Merchant Shipping Act 1995 also allows claims in respect of wages by
the holder of an allotment note. 375 If proceedings brought to enforce such (or any other)
claim are not "applications" within the Supreme Court Act 1981, section 20(1)(b) and
20(3)(a), jurisdiction may be based (through the sweeping up clause) on section 1(1)(o)
of the Act of 1956. But this requires provision under the Merchant Shipping Acts fo r
recovery either as wages "or in the court or in the manner in which wages may be
recovered". Save in respect of the holder of an allotment note, unlike predecessors, the
Merchant Shipping Act 1970 or 1995 rarely so provides.
2.230 Any uncertainty would now seem resolved through a change in terminology
in the Civil Procedure Rules. It is now provided that any claim "under the Merchant
Shipping Act 1995" is to be started in the Admiralty Court. 376 Hence all such claims
being directed to Admiralty by rules o f court are within Admiralty jurisdiction by virtue
of s.20(1)(d) of the Supreme Court Act 1981. 377
(l) Any claim by a master, shipper, charterer or agent in respect of
disbursements made on account of a ship (section 20(2)(p))
2.231 This paragraph reflects Article 1(1)(n) of the Arrest Convention 1952 which
reads:
"(n) Masters’ disbursements, including disbursements made by shippers charterers
or agents on behalf of a ship or her owner." 378
2.232 The provision first appeared in the Ac t of 1956 replacing in part that
focusing on "necessaries" in the Supreme Court of Judicature (Consolidation) Act 1925.
The concept of masters’ disbursements is well established, being the basis of a maritime
lien; but the provision relating to disbursemen ts of a charterer, shipper or agent
appeared only in the Act of 1956 following the terms of the Convention. Under the
statutory provision expenditure must be "on account of a ship" and further in an action in
rem on account of the ship in relation to which the action is brought. So it does not
include disbursements by an insurance broker —that being seen, as is the payment of
insurance premiums, as in the financial interest of the shipowners 379—or when made in
respect of a contract not identifying a ship. 380
Masters’ disbursements
2.233 Such a claim carries a maritime lien and the meaning of "disbursement" has
been discussed in that context. There is no distinction between the type of claim which
would attract a maritime lien and the claim which is within Admiralty jurisdiction in
personam or in rem.
Charterer ’s, shipper’s or agent’s disbursements
2.234 It seems clear that the meaning of "disbursement" should remain constant
whether it be by the master or other person and, therefore, include any liability incurred.
It has been held that it includes any fee for services (as, for example, agent’s fees). 381
(m) Any claim arising out of an act which is or is claimed to be a general
average act (section 20(2)(q))
2.235 The equivalent provision of the Arrest Convention refers simply to "a claim
arising out of . .. general average". 382 The provision appeared in the English statutory
jurisdictional framework for the first time in the Act of 1956. General average has been
defined many times. It is based on the principle that the cost of a sacrifice of property in
time of danger for the rescue of other property must be borne and shared by all those
interested in the whole. A general average is statutorily defined for insurance purposes
in the Marine Insurance Act 1906 as:
"where any extraordinary sacrifice or expenditure is voluntarily and reasonably
made or incurred in time of peril for the purpose of preservin g the property imperilled
in the common adventure." 383
2.236 This definition has been accepted as a statutory codification of the concept
and an international framework for the application of the principle has been achieved in
large measure through the York-Antwerp Rules.384 The broad wording of the provision
encompasses claims consequential on a general average claim. So, for example, it may
be argued that it applies to a claim that a shipowner had not fulfilled his obligation to
obtain security for owners of cargo lost before releasing surviving cargo or perhaps
actions against insurers because of the occurrence of the act. 385
2.237 It should be noted that a shipowner has a possessory lien on cargo for
general average contributions and the duty to exercise that lien for the benefit of ship
and cargo. Subject to statutory extension, the lien is possessory and, apart from any
proceedings taken to enforce it against wrongful interference, is not affected or aided by
paragraph (q).
2.238 Cargo owners, except in the unlikely event of being in possession of the
cargo, cannot have a possessory lien. Any security available, therefore, stems directly
from any action in rem available under section 20(2)(q) and section 2 1(4).
(n) Any claim arising out of bottomry (section 20(2)(r))
2.239 The substance of this head is identical with that which attracts a maritime
lien and has been discussed in that context. In fitting this claim into the framework it
must be recalled that the concept is based on l ack of personal liability of the borrower.
The availability of an action in personam or of an action in rem in the context of section
21(4) is, therefore, limited. 386 Claims Enforceable by Action “In Personam”
Availability of action “in personam”
2.240 The Supreme Court Act 1981 provides that "an action in personam may be
brought in the High Court in all cases within the Admiralty jurisdiction of that court." 387
The provision is subject to the limitation on the availability of collision actions arising
from a collision out of inland or port waters. In these circumstances an action in
personam may be brought in England only if the defendant has submitted or agreed to
submit to the jurisdiction has his habitual residence or place of business in England or
the action arises out of the same incident in relation to which proceedings are or have
been taken in the High Court. 388 Such limitations reflect restrictions in the Convention
on Civil Jurisdiction in Matters of Collision 1952 ( see Chapter 3). Jurisdiction
conferred with no reference to “in rem” claims
2.241 Admiralty jurisdiction is conferred by the Supreme Court in section 20 in
five categories which of themselves do not appear in section 21 as being grounds for " in
rem" claims. These are (i) section 20(2)(d) damage received by a ship; (ii) (arguably)
the confining of the sweeping up clause (section 20(1)(e)) to actions in personam; (iii)
three categories of "proceedings" in section 20(3): (a) applications under the Merc hant
Shipping Act 1995; (b) "any action to enforce a claim for damage, loss of life or
personal injury" arising out of a collision between ships, the manoeuvre (or lack of) or
noncompliance with collision regulations by one or more of two or more ships; (c ) any
limitation action. (i) Any claim for damage received by a ship
2.242 This is omitted from the list in section 21 of claims in section 20(2)
enforceable by action in rem. It has earlier been contended (see pp. 21) that such a
claim may arguably be enforced by an action in rem through the sweeping up clause, and
the question of the nature of "damage" required has been considered along with claims
in relation to which an action in rem will lie. (ii) The sweeping up clause (sectio n
20(1 )(c))
2.243 The jurisdiction is arguably both in personam and in rem but by reason of
the wording of section 21 may extend to jurisdiction in personam only (see 2.13, 2.14).
(iii) Proceedings listed in section 20(1)(b), 20(3)
(a) Any application in the High Court under the Merchant Shipping Act 1995 389
(section 20(3)(a))
2.244 There may well be an overlap with the claims specified in the Supreme
Court Act 1981 as within "in rem" jurisdiction and this rather vague category (as, for
example, wage claims). The category as such did not appear in the Administration of
Justice Act 1956 and such applications would have found their way to the Admiralty
Court through rules of court or spe cific assignment of appropriate business to the
court.390 It was a small but welcome step in the direction of codification to find the
category specifically listed as part of the basic statutory Admiralty framework, but
regrettable that its wording still left its scope unclear. 391 By the current Civil Procedure
Rules all "claims" under the 1995 Act must be started in the Admiralty Court 392 and are
therefore within Admiralty jurisdiction ( see 2.225)
(b) "Collision" actions (section 20(3)(b))
2.245 As such actions are to enforce a claim for damage, loss of life or personal
injury they are enforceable as such by an action in personam or an action in rem. The
category reflects the Collision (Civil Jurisdicti on) Convention 1952 393 but whether any
jurisdiction is conferred in addition to section 20(2)(f) seems dubious. By the Rules of
the Supreme Court 1965 every such action was to be assigned to the Admiralty Court 394
and under the Civil Procedure Rules this i s underlined by the provision that any claim
within s.20(3)(b) "must be started in the Admiralty Court". 395 So there is at the least a
procedural reason for the provision.
(c) Limitation actions (section 20(1)(b) and 20(3)(c))
2.246 Any "actions by shipowners or other persons under the Merchant Shipping
Act 1995 for the limitation of the amount of their liability in connection with a ship or
other property" (as to which see Chapter 24) is declared to be within Admiralty
jurisdiction. Prior to statutory enactment such jurisdiction was based on rules of court.
2.247 Unlike the collision action there is no other statutory jurisdictional provision
relating to such an action. By the Civil Procedure Rules 396 a limitation claim must be
started in the Admiralty Court.
1. Admiralty jurisdiction includes some claims in relation to aircraft (see Supreme
Court Act 1981, s.20(1)(d), 20(2)(j) salvage, (k) towage and (l) pilotage) and is
extended to hovercraft as if they were ships (Hovercraft Act 19 68, s.1(1)(h), 2 (as
amended by Supreme Court Act 1981, Sch. 5; Hovercraft (Application of Enactments)
Order 1972 (SI 1972/97 1)). As to Scotland, see fn. 285.
2. I.e., now known as the Civil Procedure Rules (Civil Procedure Act 1997, s.1).
3. [1984] 1 Lloyd’s Rep. 464, at p. 468. The case went to the House of Lords
[1985] 1 Lloyd’s Rep. 283 on a different point ( see infra). For application of s.20(1)(c)
to an action in rem see The Despina G.K. [1982] 2 Lloyd’s Rep. 555 (enforcement of a
foreign judgment).
4. [1976] 2 Lloyd’s Rep. 1.
5. [1968] P. 449.
6. [1893] A.C. 468.
7. [1924] P. 78.
8. [1982] 2 Lloyd’s Rep. 555.
9. (1879) 5 P.D. 28; (1881) 6 P.D. 106 (reversing on the facts).
10. As to which, see Chapter 10.
11. See e.g. The Cargo ex Sultan (1859) Swab. 504. As to doubts about the
inclusion in the sweeping up clause of in rem jurisdiction, see supra.
12. See e.g. The Polo II [1977] 2 Lloyd’s Rep. 115. See also the power to award
interest on late payments of money due ( see Introduction, supra).
13. For current civil procedure rules concerned with mandatory starting of claims
in the Admiralty Court see CPR 61.2. Such claims are claims in rem, damage done by a
ship, concerning the ownership of a ship, under the Merchant Shipping Act 1995, loss of
life, a personal injury specified in the Supreme Court Act 1981, s.20(2)(f), wages,
towage, pilotage. Any other claim may be started in that court, and any claims may b e
transferred to an appropriate court ( ibid.). There is now no mandatory direction that
specifies matters to be "dealt with" by the Admiralty Court. Under former rules matters
(such as arrest) connected with a claim in rem, ownership or mortgage of a ship,
limitation claims, proceedings against the Oil Pollution Compensation Fund were the
subject of such direction (see 49F PD1.13).
14. For e.g. of a claim rather than an application see Merchant Shipping Act 1995,
ss. 137, 138, 13 8A (the latter added by Merchant Shipping and Maritime Security Act
1997, s.3).
15. The claims within s.20 are directly extended by statute to include oil pollution
claims (see s.20(5)) and indirectly by widening the definition of "damage".
16. As e.g. claims for compensation for an unjustified direction to an operator or a
manager of an off shore installation in respect of pollution under the Offshore
Installations (Emergency Pollution Control) Regulations 2002 (SI 2002/186 1) regs 3, 4
or (arguably) civil claims for breach of subordinate legislation under the 1995 Act. See
and compare Ziemniak v. ETPM Deep Sea Ltd [2003] EWCA Civ 636 with The
Margarethe Mana [2002] EWCA Civ 509.
17. Any claim in rem must be started in the Admiralty Court (CPR 61.2).
18. Supreme Court Act 1981, s.21(3). The words "or other charge" apparently add
nothing of English substance and little of foreign substance —see infra p. 46.
19. Though statutes (as judicially construed) have extended the scope of most
claims. The maritime liens for masters’ wages and disbursements are statutory in origin.
There have been three international Conventions seeking to achieve uniformity in a list
of maritime liens—1926, 1967 and 1993. The United Kingdom has not ratified any (for
parties see Chapter 3 and discussion see Chapter 18).
20. (1851) 7 Moo. P.C. 267.
21. See The Halcyon Isle [1981] A.C. 221; The Acrux [1965] P. 391. See Chapter
18. But a contractual indemnity may refer to a maritime lien of any law (The Barenbels
[1984] 2 Lloyd’s Rep. 388).
22. As regards, for example, maritime liens in relation to claims in respect of life
and property salvage, personal injury and loss of life and claims under the International
Convention on Salvage 1989 as enacted in the Merchant Shipping Act 1995, see infra.
As to the question of extension to claims distinct in nature from those attracting maritime
liens, see infra.
23. [1976] 1 All E.R. 856. Brandon J. referred to The Heinrich Bjorn (1886) 11
App. Cas. 270 and The Sara (1889) 14 App. Cas. 209 as authorities establishing that
novel claims did not carry a maritime lien, and to The Veritas [1901] P. 304 as an
illustration of the lien accompanying jurisdictional extension.
24. But not to drilling units on location engaged in the exploration, exploitation or
production of sea-bed resources (Art. 3). "Navigation" has been construed in English
courts as "planned or ordered movement from one place to another" ( Steedman v.
Schofield [1992] 2 Lloyd’s Rep. 163) and excluding activities on water used solely by
people "messing about in boats” ( Curtis v. Wild [1991] 4 All E.R. 172) but see for a
view that exclusion of non-commercial craft is unwarranted The Von Rocks [1998] 2
Lloyd’s Rep. 198 (Irish Supreme Court). See generally Chapter 12.
25. Lloyd’s Open Forms 1990, 1995 and 2000 include many of the Convention
provisions (see Gaskell [1991] LMCLQ 104) and a declaration of a maritime lien but
such a lien cannot be created by contract (see Chapter 18).
26. See as to salvage generally e.g. Kennedy and Rose on Law of Salvage (Sweet
& Maxwell, 2001); Brice, Maritime Law of Salvage (3rd edn. 1999, Supp. 2000,
Sweet & Maxwell). As to the international Convention on Salvage 1989, see Watkins
[1989] LMCLQ 416; Brice [1990] LMCLQ 32; Gaskell [1990] LMCLQ 352.
27. In The Neptune (1824) 1 Hag.Adm. 227, at p. 236. Salvage must be
distinguished from towage. For a mode rn examination of that distinction, the need for
"voluntary services”, and the question of whether a crew could be volunteers if their
employer would not, see The Texaco Southampton [1983] 1 Lloyd’s Rep. 94 (C.A. of
N.S.W.).
28. The Crown is entitled to unclaimed wreck and to derelict on the sea (which
will become droits of Admiralty if no ownership is claimed). As to the limitation of
salvage to ships, see Wells v. Owners of Gas Float Whitton (No. 2) [1897] A.C. 337. If
things afloat on the water become droits, salvage is probably payable by the Crown ( see
infra). As to droits, see infra.
29. Acts done for the benefit of those providing the services do not qualify for
salvage (see e.g. Simon v. Taylor [1975] 2 Lloyd’s Rep. 338).
30. As to the definition of a ship, see Wells v. Owners of Gas Float Whitton (No.
2) [1897] A.C. 337; Steedman v. Schofield [1992] 2 Lloyd’s Rep. 163 (jet ski not a
boat or ship); The Von Rocks [1998] 2 Lloyd’s Rep. 198; Clark v. Perks [2000] S.T.C.
428; Chelsea Yacht and Boat Club v. Pope [2001] 2 All E.R. 409 (C.A.) (moored
houseboat not part of land); Cyber Sea Technologies Inc. v. Triton [2003] 1 F.C. 569
(Canada) and 18.30 infra. As to shipping provisions applied to other things on the
water, see 3.8.
31. Hovercraft (Application of Enactments) Order 1972, Art. 8.
32. For the purposes of Part IX "Salvage and Wreck" in the Merchant Shipping Act
1995, wreck is "found in or on the shores of the sea or any tidal water" (s.255(1)).
Governmental control may be exercised for the protection of wrecks. See Protection of
Wrecks Act 1973; Merchant Shipping and Maritime Security Act 1997, s.24. For a
comprehensive study of wreck see Dromgoole and Gaskell "Title to Wreck" (1997) Art,
Antiquity and Law, pp. 103, 207. Maritime cultural property may be excluded from the
1989 Convention (Art. 30(1)(d)). The UK has not domestically implemented its
reservation (see further Dromgoole, p. 223).
33. As to hovercraft, see the Hovercraft Act 1968, s.2(2).
34. See e.g. Admiralty Commissioners v. Valverda (Owners) [1938] A.C. 173.
Such agreements will be enforced only so far as they are consistent with equitable
principles applicable to salvage (The Crusader [1907] P. 15).
35. See e.g. The Melanie (Owners) v. The San Onofre (Owners) [1925] A.C. 246.
Salvors who negligently cause harm are liable for that harm ( The Tojo Maru [1972]
A.C. 242).
36. See The Unique Mariner (No. 2) [1979] 1 Lloyd’s Rep. 37.
37. See also The Eleanora Charlotta (1823) 1 Hag.Adm. 156; The Veritas [1901]
P. 304, at pp. 311, 312; Currie v. M’Knight [1897] A.C. 97, at pp. 105–106; The Lyrma
(No. 2) [1978] 2 Lloyd’s Rep. 30.
38. See The Schiller (Cargo ex) (1877) L.R. 2 P.D. 145, per Brett L.J. (dissenting
—but on this point reviewing the development of the Admiralty jurisdiction in relation
to life salvage). See also Brandon J. in The Halcyon Skies [1977] Q.B. 14, at p. 30.
39. See e.g. The Westminster (1841) 1 W. Rob 229; The Fusilier (1865) 3 Moo.
P.C. N.S. 51, at p. 73.
40. See e.g. The Hestia [1895] P. 193; The Unique Mariner (No. 2) [1979] 1
Lloyd’s Rep. 37, at pp. 49–50. But as an agreement may extinguish or prevent a
maritime lien (particularly where it provides security) and as a salvage contract will
determine the rights between parties it may be as well to include a clause indicating that
the agreement is not overriding the lien (as e.g. until contractual security is provided by
Lloyd’s Open Form 2000, Clause 4.7). A seaman’s right in the nature of salva ge cannot
be renounced by agreement save by an agreement for remuneration made in connection
with a ship rendering salvage services (Merchant Shipping Act 1995, s.39 replacing
Merchant Shipping Act 1970, s.16).
41. Admiralty jurisdiction was extended in respect of salvage claims by the
Admiralty Court Act 1840, s.6. As to the general approach to this extension in respect of
established maritime liens, see supra. See also The Veritas [1901] P. 304, The Lyrma
(No. 2) [1978] 2 Lloyd’s Rep. 30.
42. [1988] A.C. 831; [1988] 1 Lloyd’s Rep. 397.
43. Schedule 5, para. 3.
44. Through making a permitted reservation to the Convention in excluding it from
"inland waters" where all the vessels involved are of inland navigation o r there is no
navigation involved (1995 Act, Sch. 11, Part II para. 2) see infra.
45. As to the applicable law, see Chapter 26.
46. As did the majority of the Privy Council in respect of "maritime liens" in The
Halcyon Isle [1981] A.C. 221; [1980] 2 Lloyd’s Rep. 325.
47. The provision is specifically brought into the Supreme Court Act 1981
(s.20(6)).
48. (1865) 3 Moo. P.C., N.S. 51.
49. Merchant Shipping Act 1854, s.458.
50. At p. 71 (meeting the point that there should b e contribution without benefit to
the property salved). See also The Schiller (Cargo ex) (1877) L.R. 2 P.D. 145 where it
was held that for a claim to lie, property need only survive —it need not be salved—and
that the liability of the owners of the ship or cargo is limited to the value of the property
saved.
51. No reference is made to freight. As to proceedings in rem, see p. 74.
52. Particularly is this so as the practice of making an enhanced award to reflect
the degree of danger to human life where there are salvage services to ship and cargo
rather than distinct awards seems to have survived the statute. (See The Bosworth (No.
3) [1962] 1 Lloyd’s Rep. 483.)
53. SI 1994/2971. The Supreme Court Act, s.20(2)(6), was amended to include
jurisdiction as to claims based on the Convention ( see infra).
54. 1995 Act, s.1; Sch. 1, Pt. II, para. 5.
55. Article 20.
56. A conclusion supported by the provision in the Supreme Court Act 1981,
s.20(6), as amended that "salvage services" in the Act includes "services rendered in
saving life from a ship".
57. Brought into the Supreme Court Act 1981 specifically (see s.20(6)).
58. This provision removed a restriction to ships or sea going vessels imposed by
the Admiralty Court Act 1840, s.6, on the extended salvage jurisdiction from the high
seas to a body of a county conferred by that Act.
59. The outer geographical limits of the statutory jurisdiction are unclear. A place
20 miles off the coast has been held not to be within its scope ( The Fulham [1898] P.
206; affirmed C.A. [1899] P. 251).
60. [1988] A.C. 831; [1988] 1 Lloyd’s Rep. 397.
61. [1989] 1 Lloyd’s Rep. 58.
62. 1994 Act, s.1(6), Sch. 2, para. 1; SI 1994/2926 —as from 1 January 1996:
1995 Act, Sch. 11, para. 1.
63. 1994 Act, Sch. 1, Pt. II, para. 2—as from 1 January 1996: 1995 Act, Sch. 11,
Pt. II, para. 2.
64. As to assets subject to the maritime lien, see infra Chapter 18. The law relating
to maritime liens applies to hovercraft (Hovercraft Act 1968, s.2(2) and (3)). No lien
attaches to a claim for injury, loss or damage for occurrences involving nuclear matter.
See Nuclear Installations Act 1965, s.14. As to liens and limitation of liability, see
supra. See further infra and Chapter 6.
65. (1851) 7 Moo. P.C. 267.
66. [1897] A.C. 97.
67. Per Lord Watson (at p. 106).
68. The lien will reflect liability for fault and the value reflect statutory limitation
of liability and any contributory negligence. As to e nforceability, see Chapter 18.
69. See e.g. The Veritas [1901] P. 304; The Tolten [1946] P. 135 (a foreign pier).
For an example of a claim in relation to goods being treated as attracting a maritime
lien, see The Stream Fisher [1927] P. 73.
70. Currie v. M’Knight [1897] A.C. 97. It suffices for the exercise of "in rem"
jurisdiction that the damage is caused by part of a ship (see The Minerva [1933] P.
224). In that case, the court noted the distinction between in rem jurisdiction and a
maritime lien, but there seems little reason to draw it in this context. It does not suffice
if the injury occurs in the ship (The Theta [1894] P. 280)—but this fact situation would
fall within the Supreme Court Act 1981, s.20(2)(f) and thereby any claim would attract
a statutory lien (see infra).
71. The Chr Knudsen [1932] P. 153; The Port Victoria [1902] P. 25; The
Dagmara and Ama Antxine [1988] 1 Lloyd’s Rep. 431 (allegation of dangerously
approaching another vessel to drive her away from fishing grounds).
72. See e.g. The Jade [1976] 2 Lloyd’s Rep. 1, at p. 8.
73. The Rama [1996] 2 Lloyd’s Rep. 281. In 1999 in the New Zealand High Court
Fisher J. agreed that there was no distinction between persons and property and held
there was no requirement that the damage had to be external to the ship ( Fournier v. The
Ship "Margaret 2" (1999) LMLN 514).
74. Presumably without geographical restriction —although the Supreme Court of
Judicature (Consolidation) Act 1925 continued to express jurisdiction in respect of
damage received as "whether received within the body of a county or the high seas" and
damage by a ship without qualification (see s.22(1)(a)( iii) and (iv)).
75. See The Sara (1889) 14 App. Cas. 209; The Two Ellens (1872) L.R. 4 P.C.
161, at p. 167; The Heinrich Bjorn (1886) 11 App.Cas. 270, at p. 282.
76. [1901] P. 304.
77. At p. 311.
78. [1979] 2 Lloyd’s Rep. 364.
79. See The Zeta [1893] A.C. 468; The Sylph (1867) L.R. 2 A. & E. 24.
80. (1867) L.R. 2 A. & E. 24.
81. (1869) L.R. 2 P.C. 447.
82. Law of Maritime Liens, at p. 42.
83. Maritime Liens (Stevens), para. 220. See also Mansfield (1888) 4 L.Q.R., at
pp. 388–389.
84. [1946] P. 135.
85. The Supreme Court Act 1981 includes a heading of claim "loss of life or
personal injury" in addition to damage by a ship —this being a repetition of the Act of
1956 and a change from the Act of 1925. It presumably is intended to reflect the Arrest
Convention (see Chapter 15) and should not be taken to indicate that personal injury
cannot still be incorporated into "damage" for the principle of a maritime lien.
86. In The Mary Ann (1865) L.R. 1 A. & E. 8 in which Dr Lushington advanced the
approach to the statutes which was later affirmed in The Sara (1889) 14 App. Cas. 209
(although his application of the principles was overruled)) the judge gave "damage
caused by a ship" as an example of extension of a maritime lien.
87. (1884) 10 App. Cas. 59, at p. 67.
88. Maritime Liens, op. cit., at para. 220.
89. Supreme Court Act 1981, s.20(5)(a), as from 1 January 1996 amended to refer
to the Merchant Shipping Act 1995 (see Sch. 13, para. 59) that Act repealing and re-
enacting the 1971 Act and amendments made and to be made. As to such claims, see
infra.
90. Supreme Court Act 1981, s.20(5)(b), as from 1 January 1996 amended to refer
to the Merchant Shipping Act 1995 (see Sch. 13, para. 59) that Act repealing and re -
enacting the applicable provisions of the 1974 Act and amendments made and to be
made (see p. 60). As to such claims, see infra. It is in any event unlikely that the Fund
would be the owner of the property to which any lien would attach.
91. For statutory provisions governing wages, see the Merchant Shipping Act
1995, ss.30–41 as from 1 January 1996 repealing and re -enacting the Merchant
Shipping Act 1970, ss.7–18 as amended by the Merchant Shipping Acts 1979, s.37(1),
and 1988, s.46, and SI 1993/785. As to restrictions on justification to hear claims in
respect of foreign ships, see Chapter 12.
92. The Sydney Cove (1815) 2 Dods. 11.
93. The Prince George (1837) 3 Hag.Adm. 376, at p. 380.
94. As to the jurisdiction prior to 1840, see Marsden (1886) 2 L.Q.R. 357, at p.
365, and as to the probable early assumption that it amounted to a maritime lien, see p.
367.
95. [1924] P. 104.
96. A special contract was one which, because of an unusual or special term, could
not be said to be the sailor’s ordinary contract of employment with the master. (See e.g.
The British Trade [1924] P. 104, at pp. 110–111.)
97. [1977] Q.B. 14; [1976] 1 Lloyd’s Rep. 461.
98. See The Ever Success [1999] 1 Lloyd’s Rep. 824. It matters not that the
contract provides for allotment of part of the wages nor that the method of allotment
involves a third party—the critical element is the contract of employment by the o wner
(see e.g. The Turiddu [1999] 2 All E.R. (Comm.) 161 (C.A.).
99. The Merchant Shipping Act 1894, s.742, re -enacted in the 1995 Act, s.313(1),
provides simply that "Wages includes emoluments" —This applies to the lien for
masters’ wages (Merchant Shipping Act 1970, s.18, 1995, s.41) and is a strong hint to
the scope of a seaman’s wages both because of the link between the master and the
seaman’s lien and the specific provision protecting the seaman’s lien in the Merchant
Shipping Act 1970, s.16, 1995, s. 39. The definition has been treated as generally
applicable (see e.g. The Acrux [1965] 1 Lloyd’s Rep. 565) and certainly the judicial
treatment of wages has been consistent with it. For current statutory provisions
concerning wages, see fn. 91. The right to interest on late payment (1970 Act, s.12;
1995 Act, s.35) no doubt attracts a maritime lien.
100. The Arosa Star [1959] 2 Lloyd’s Rep. 396, at p. 403 —a phrase taken from
The British Trade [1924] P. 104. Medical expenses or for relief and maintenance f or
being left behind or shipwrecked (see Merchant Shipping Act 1995, ss.45 and 73) may
perhaps be equated with "sick leave" bonuses.
101. [1968] 2 Lloyd’s Rep. 559.
102. See also The Immacolata Concezione (1884) 9 P.D. 37.
103. [1977] Q.B. 14.
104. A number of authorities were cited in which insurance and pension
contributions had been declared recoverable as wages (see p. 26) but Brandon J.
approached the matter afresh to discover the rationale underlying the conclusion. As to
the authorities, see The Arosa Star [1959] 2 Lloyd’s Rep. 396 (in which it was
emphasised that the claim attracted a maritime lien); The Arosa Kulm (No. 2) [1960] 1
Lloyd’s Rep. 97; The Fairport [1965] 2 Lloyd’s Rep. 183; The Fairport (No. 3) [1966]
2 Lloyd’s Rep. 253; The Westport (No. 4) [1968] 2 Lloyd’s Rep. 559.
105. In The British Trade [1924] P. 104 the authorities were said to lead to the
conclusion that a maritime lien extended to claims for damages for dismissal, i.e.
beyond wages earned on board (pp. 109 –110).
106. Supreme Court Act 1981, s.20(2)(o).
107. [1965] 1 Lloyd’s Rep. 565.
108. [1965] 2 Lloyd’s Rep. 183.
109. [1968] 2 Lloyd’s Rep. 559.
110. The case concerned a claim by the master for disbursements for payments
made which the judge held turned on whether the payment in respect ( inter alia) of the
contributions were emoluments.
111. [1981] LMLN 36.
112. The issue was whether a caveat could b e lodged in respect of the claim.
113. [1991] 1 Lloyd’s Rep. 330.
114. Merchant Shipping Act 1995, s.30(1) re -enacting as from 1 January 1996
Merchant Shipping Act 1970, s.7 as amended by Merchant Shipping Act 1988, s.46.
115. If the ship is one of a fleet there may be an action in rem against a "sister
ship" (see infra)—and further the maritime lien may continue to be exercisable for a
number of years (see Chapter 18).
116. Section 313(1).
117. Merchant Shipping Act 1854, s.2. Compare the equivalent statutory
provisions relating to the Admiralty jurisdiction of the county courts (see R. v. Judge of
City of London Court and Owners of S.S. Michigan (1890) 25 Q.B.D. 339) (now
removed, see p. 9).
118. See Merchant Shipping Act 1970, s.43; 1995, s.47; The Prince George
(1837) 3 Hag.Adm. 376.
119. The Prince George (1837) 3 Hag.Adm. 376.
120. Thompson v. H. and W. Nelson [1913] 2 K.B. 523. In R. v. Judge of City of
London Court and Owners of S.S. Michigan (1890) 25 Q.B.D. 339 Lord Coleridge in a
dictum said that the definition "would undoubtedly include such a person as a
stevedore".
121. I.e. s.1(1) proviso. If not "conferred" by the Supreme Court of Judicature
(Consolidation) Act 1925, s.22(1)(vii) it was part of the law prior to 1875 (see
Administration of Justice Act 1956, s.1) —(as to ambit of the sweeping up provision,
see supra).
122. By the Merchant Shipping Act 1995, s.313(1), "master" includes every pers on
(except a pilot) having command or charge of any ship and in relation to a "fishing
vessel" means the skipper. As to current statutory provisions governing wages, see the
Merchant Shipping Act 1995, ss.30–41.
123. Merchant Seamen Act 1844, s.16.
124.Merchant Shipping Acts 1854, s.191, and 1894, s.167(1).
125.Merchant Shipping Act 1970, s.18; 1995, s.41. There is no definition of
"remuneration" which, if anything, seems wider than "wages". As to the scope of
masters’ wages, see The Arina (1886) 12 P.D. 119. The wage of masters and seamen
rank pari passu (The Royal Wells [1984] 2 Lloyd’s Rep. 255). The prohibition on
renouncing of a seaman’s lien does not apply to a master (see the positive exclusion of
master from the definition of seaman introduced by Merchant Shipping Act 1970,
s.100(3); Sch. 3, para. 4 and now in the 1995 Act, s.313(1), and The Wilhelm Tell
[1892] P. 337). As to renouncing of liens, see Chapter 17.
126.[1893] A.C. 38. The judgments rely partly on general principles of maritime
law and partly on the construction placed on the former statutory provision (in the
Admiralty Court Act 1861)—"disbursement made. . .on account of the ship." As to the
need for personal liability of the owner, compare The Ripon City [1897] P. 226. As to
this requirement, see further Chapter 17.
127.The maritime lien exists whether the owner is full or part owner. ( The
Feronia (1868) L.R. 2 A. & E. 65.)
128.See also Thomas, op. cit., para. 358. In The Ever Success (fn. 98) Clarke J.
hinted that the omission may have some positive consequences.
129. The Orienta [1895] P. 39, at p. 55 per Lord Esher M.R. So a master who, at
the shipowner’s request, drew a bill of exchange on the shipowner in payment for coal
could not recover—his liability was not as master but drawer of the bill. See also The
Elmville (No. 2) [1904] P. 422. Compare The Ripon City [1897] P. 226 (bill drawn in
pursuance of coaling contract). See also The Fairport (1882) 8 P.D. 48.
130.See e.g. The Chieftain (1863) B. & L. 104. But not strictly followed. See e.g.
The Elmville (No. 2) [1904] P. 422, at p. 425; The Fairport (1882) 8 P.D. 48; The
Feronia (1868) L.R. 2 A. & E. 65.
131.See The Ripon City [1897] P. 226, at pp. 233–234. The defence costs of a
master defending himself against a false charge acting from the exercise of disciplinary
duty is within the principle. The James Seddon (1866) 1 A. & E. 62.
132.See The Castlegate [1893] A.C. 38 and Chapter 3.
133. Ibid.
134.See The Tagus [1903] P. 44, at p. 54.
135.See The Petone [1917] P. 198.
136.As to which, see supra. For more recent cases in which bottomry transactions
were relevant, see The Comet [1965] 1 Lloyd’s Rep. 195; Paschalis v. The Ship Tona
Maria [1975] 1 Cyp.L.R. 162.
137. The Royal Arch (1857) Swab. 269, at p. 275 (Dr Lushington). It was there
said a bond given at a home port would not be given in necessity (see p. 277). It is the
inability to rely on the owner’s personal credit that supports a bottomry bond (The
Nelson (1823) 1 Hag.Adm. 169, at p. 175); and it is evidence to show the ship’s need to
prosecute the voyage (see The St George [1926] P. 217, at p. 226). See also The
Karnak (1869) L.R. 2 P.C. 505.
138.Resort must be had to ship and freight prior to cargo where all these are made
the subject of security—ship and freight being liable pro rata (see The Dowthorpe
(1843) 2 W. Rob. 73, at p. 85; The Bonaparte (1859) 7 Not.Cas.Supp. 55. As to arrest
available in relation to maritime liens, see Chapter 15.
139. See further Chapter 18.
140. But a bottomry bond may be collateral security for bills of exchange drawn on
owners. If honoured, the bottomry is discharged. See Stainbank v. Shepard (1853) 13
C.B. 418, at p. 444.
141. Stainbank v. Fenning (1851) 11 C.B. 51, at pp. 87 –88 (Jervis L.C.);
Stainbank v. Shepard (1853) 13 C.B. 418—cases dealing with similar issues; The
Haabet [1899] P. 295; The James W. Elwell [1921] P. 351.
142. See e.g. The Dante (1846) 2 W. Rob. 427. Prevention from sailing because of
unseaworthiness is also a ground (ibid.).
143. See The Royal Arch (1857) Swab. 269, at pp. 275–276 (Dr Lushington); The
St George [1926] P. 217.
144. In The Tobago (1804) 5 C. Rob. 218 it was said not to create a property right
recognisable by the Prize Court. As to the view that a lien is a proprietary interest, see
Chapters 17 and 18.
145. The Ripon City [1897] P. 226, at p. 242.
146. See e.g. The Aline (1839) 1 W. Rob. 111 (where reference is made to claims
in salvage, wages, damage and bottomry); The Janet Wilson (1857) Swab. 261—both
cases of priority. The Dowthorpe (1843) 2 W. Rob. 73, at p. 79.
147. See The Atlas (1827) 2 Hag.Adm. 48; The Sultan (Cargo ex) (1850) Swab.
504. It is not referred to in the Supreme Court Act 1981 but is clearly within the
sweeping up provision if that provision extends to in rem jurisdiction (and may perhaps
be implied from "bottomry").
148. See The Sultan (Cargo ex) (1859) Swab. 504.
149. Merchant Shipping Act 1894, s.567(2); Merchant Shipping Act 1995,
s.249(3).
150. It was suggested by Price (op. cit. Law of Maritime Liens, p. 2) that under the
Diseases of Animals Act 1950, s.75(2) a local authority had a maritime li en in respect
of expenses incurred in buying or destroying animal carcasses washed ashore. The
provision ceased to have effect on the enactment of the Administration of Justice Act
1956 (see s.7(1)).
151. Merchant Shipping Act 1894, s.568(1); Merchant Shipping Act 1995,
s.250(2).
152. Thomas, Maritime Liens, op. cit., para. 21.
153. Merchant Shipping Act 1894, s.513(1).
154. Ibid., s.513(2).
155. 1894 Act, s.513(2); 1995 Act, s.234(6).
156. Thomas, Maritime Liens, op. cit., para. 22. See also Price, Law of Maritime
Liens, op. cit., p. 2.
157. Thomas finds support in a dictum of Hewson J. in The St Merriel [1963] P.
247, 254 to the effect that the provision gives to the owners "the same rights as the
holder of a lien"—referring to maritime lien.
158.See The Heinrich Bjorn (1886) 11 App. Cas. 270.
159.(1889) 43 Ch.D. 241.
160.(1885) 10 P.D. 44; on appeal (1886) 11 App. Cas. 270.
161.In The Ambatielos and The Cephalonia [1923] P. 68.
162.(1919) 46 D.L.R. 506. See also The Santa Maria (1917) 36 D.L.R. 619.
163.[1923] P. 68.
164.Citing The Nelson (1805) 7 C. Rob. 227 and The Bee (1822) 2 Dods. 498 as
early cases in which pilotage claims were heard and The Clan Grant (1887) 6 Asp.
M.L.C. 144 as a more recent case.
165.As to the authorities, see The Adah (1830) 2 Hag.Adm. 326; La Constancia
(1846) 2 W. Rob. 404; The St Lawrence (1880) L.R. 5 P.D. 250; The Servia and the
Carinthia [1898] P. 36. As to the uncertainty, see e.g. Thomas, Maritime Liens, p. 17,
where towage and pilotage are said to have "a certain parallel".
166.(1874) 2 Asp. M.L.C. 402.
167.See, as to English law, The St Merriel [1963] P. 247 and infra; as to foreign
law, The Acrux [1965] P. 391.
168.Supreme Court of Judicature (Consolidation) Act 1925, s.22(1)(a)(i).
169.All proceedings concerning the ownership of a ship are to be started in the
Admiralty Court (CPR 61.2(iii)). See for an example of exercise of the statutory
jurisdiction The Bineta [1967] 1 W.L.R. 121 where a declaration of ownership was
made in favour of a purchaser from a vendor who had exercised the right of resale
following failure of another purchaser to pay the price. The declaration was ne cessary
to allow the claimant to obtain registration in place of the first "purchaser" who had not
paid the sale price. As to mortgage, see 2.127.
170. Brond v. Broomhall [1906] 1 K.B. 571. The register may be rectified by court
order to delete an entry made as a result of a fraudulent sale; The Ocean Enterprise
[1997] 1 Lloyd’s Rep. 449. See further Chapter 23.
171.See The Frances (1820) 2 Dods. 420; The St Olaf (1877) 2 P.D. 113. There
is also clearly jurisdiction to decide a property issue in an action under another head of
claim. See e.g. The Saetta [1993] 2 Lloyd’s Rep. 268.
172.Merchant Shipping Act 1995, Sch. 1, para. 6, re -enacting Merchant Shipping
(Registration etc.) Act 1993, Sch. 1, para. 6, replacing Merchant Shipp ing Act 1894,
s.30. The power falls within Admiralty jurisdiction by virtue of s.20(3)(1), see infra.
173. The Mikado [1992] 1 Lloyd’s Rep. 163. Under the 1894 Act power was not
restricted to the control of unqualified persons acquiring title to British s hips except by
transfer even though it appears in conjunction with those powers ( ibid. following and
adopting Beneficial Finance Corpn Ltd v. Price [1965] 1 Lloyd’s Rep. 556). Although
the power is now specifically restricted to registered ships there is no reason to restrict
it to any particular type of dealing.
174.See The Siben [1994] 2 Lloyd’s Rep. 420 (C.A. of Jersey) —plaintiff seeking
to rescind contract of sale within provision.
175. The Mikado (supra); The Siben (supra).
176. A court may order a sale (although reluctantly) even on the application of a
minority: see The Hereward [1895] P. 284.
177. The provision also included "ownership" —this now being unnecessary
because of the generalising of the jurisdiction to include ownership claims. As to bail in
possession cases, see Chapter 15.
178. [1985] 1 Lloyd’s Rep. 549. Accounts were also ordered.
179. Together with undertakings to procure a registered mortgage. As to mortgages
of unregistered ships see Chapter 23.
180. Co-owners in the majority could bring an action for possession while those in
the minority (as arguably in The Vanessa Ann) have to arrest and obtain security for
their interest (an action of "restraint" ).
181. See generally Chapter 26. It may be that the court would decline to decide a
question of title where there is little connection with England (see The Jupiter (No. 2)
[1925] P. 69; The Courageous Colocotronis [1979] W.A.R. 19); The Lakhta [1992] 2
Lloyd’s Rep. 269.
182. Supreme Court of Judicature (Consolidation) Act 1925, s.22(1)(a)(ix), itself
extending s.3 of the Act of 1840 and incorporating s.11 of the Act of 1861.
183. Until the replacement of the CPR provisions on 26 March 2001 all
proceedings concerning the ownership or mortgage of a vessel registered under the
Merchant Shipping Act 1995 had to be started in the Admiralty Court, 49F P.D. 1 –13.
Under the current provisions mortgage is omitted although any action in rem must be
started there, CPR 61.2(i)(iii). As to the inherent jurisdiction to rectify the register in
respect of such a claim, see Brond v. Broomhall [1906] 1 K.B. 571.
184. [1963] P. 247.
185. [1965] P. 391.
186. See the approach of Hewson J. in The Acrux (supra) in considering whether a
right granted under Italian law amounted to a "maritime lien" under the Act of 1956. See
further Chapters 18 and 26.
187. See Chapter 26.
188. As to piracy see n. 206.
189. There are restrictions on the forfeiture of ships over 250 tons register (s.142).
See Sch. 3. See also the Immigration Act 1971 providing under certain conditions for
forfeiture of a ship used to carry illegal entrants (s.25).
190. For an example of intervention in rem by the Commissioners of Customs and
Excise, see The Skylark [1965] 2 Lloyd’s Rep. 250.
191. As to the procedure to be adopted, see ibid., s.76. Forfeiture may be of the
ship, tackle or furniture. It is probable that a bona fide purchaser of a ship subject to
forfeiture will be protected (see The Annandale (1877) 2 P.D. 218). Such a limitation is
hardly consistent with the right stemming from the action in rem (see Chapters 10 and
19).
192. Merchant Shipping Act 1995, s.3(4), (5); Sch. 3, para. 5(4), (5). As to British
ship see ibid., para. 1. Illegal colours hoisted on board a British ship may be seized by
an authorised officer and if seized are forfeited ( ibid., s.4(3), (4)).
193. Ibid., Sch. 3, para. 5(1). The exceptions go to escaping capture in war and the
continued display of registration marks for 14 days after ending of registration ( ibid.,
s.3(2), (3)).
194. Ibid., Sch. 1, para. 4(4). As to the obligation to register a British ship and
exemption from that obligation, see ss.2 and 3.
195. Customs and Excise Management Act 1979, s.88.
196. Ibid., s.68(5).
197. Ibid., s.74.
198. Ibid., s.89.
199. Ibid., s.90.
200. Ibid., s.141. The liability to forfeiture is absolute (subject to the restriction as
to ships in s.142): Customs and Excise Commissioners v. Air Canada [1991] 2 Q.B.
446 (C.A.).
201. Merchant Shipping Act 1995, s.87(1) re -enacting 1894 Act, s.449(1); 1993
Act, Sch. 4, para. 11(2)(a). The power may be exercised without the owner being
present at or having knowledge of the proceedings (1995 Act, s.87(3)).
202. See Customs and Excise Management Act 1979, ss.28(2), 49, 53, 66(2), 67
and 78(4).
203. See R. v. Forty Nine Casks of Brandy (1836) Hag.Adm. 257, at pp. 280–281.
They are to be distinguished from droits of the Crown which are enemy vessels or
goods seized at sea, the proceeds of w hich are paid to the Naval Prize Fund (see e.g.
The Anichab [1921] P. 218—a decision of the Naval Prize Tribunal).
204. "Derelict" is a ship abandoned by master and crew without any intention to
return and no hope of recovery —it includes a floating and sunken ship and its cargo:
The Lusitania [1986] Q.B. 384; [1986] 1 Lloyd’s Rep. 132.
205. R. v. Property Derelict (1825) 1 Hag.Adm. 383. Due time appears to be
within a year and a day (see MacLlachan, Merchant Shipping Law, p. 522). For an
interesting view as to the rights of those finding droits on the sea to be paid as salvors,
see Marsden (1899) 15 L.Q.R. 353. It is there contended that it was wrongly decided in
Wells v. Owners of Gas Float Whitton (No. 2) [1897] A.C. 337 that salvage was
payable only in respect of ships and their cargo.
206. The Panda (1842) 1 W. Rob. 423; Piracy Act 1850, s.5. One eighth of value
can be claimed for restoration under this section which relates to taking by Her
Majesty’s Ships (ibid.). As to the definition of piracy in the UN Convention on the Law
of Sea declared to be part of the Law of Nations, see Merchant Shipping and Maritime
Security Act 1997, s.26(1), Sch. 5.
207. Lord Warden of Cinque Ports v. R. (1831) 2 Hag.Adm. 438, at p. 441. The
whale was arrested and the case was on the issue whether the droit had been conveyed
to the Lord Warden or was rightly claimed by the Crown. It was admitted that salvage
would be paid to fishermen who towed the whale ashore.
208. Part IX re-enacting Merchant Shipping Act 1894, Part IX as amended by
Merchant Shipping (Registration etc.) Act 1993, Sch. 4, Part IX, Chapter 2. Areas in
United Kingdom waters in which there are wrecks of importance or potential danger
may be protected by order (Protection of Wrecks Act 1973). See e.g. Protection of
Wrecks (Designation) (England) Order 2004 (SI 2004/2395), in relation to the
implementation of international agreements relating to protection of wrecks outside
United Kingdom waters see Merchant Shipping and Maritime Security Act 1997, s.24.
See e.g. Protection of Wrecks (R.M.S. Titanic) Order 2003 (SI 2003/2496), 3243,
3249. See generally Dromgoole and Gaskell, op. cit. , fn. 28.
209. Merchant Shipping Act 1995, ss.236, 255(1) re -enacting 1906 Act, s.72.
210. Merchant Shipping Act 1995, s.241 re -enacting s.523 of the 1894 Act but
replacing "in any part of Her Majesty’s dominions" with the text cited.
211. [1986] Q.B. 384; [1986] 1 Lloyd’s Rep. 132. For discussion see Dromgoole
and Gaskell, op. cit. at p. 210.
212. [1976] 2 Lloyd’s Rep. 1. In the Court of Appeal the exclusion of an action in
rem in any circumstance was the expressed view of Scarman L.J. who based his view
on the general principle that the Arrest Convention envisaged arrest of the wrongdoing
ship ([1976] 1 Lloyd’s Rep. 81, at p. 91 and of Sir Gordon Willmer (at p. 94)). Cairns
L.J. seemed to think that the ship referred to might be a ship not belonging to the plaintiff
but having some connection with the damage (p. 88).
213. Ibid., at p. 9.
214. As to the requirement see s.21(4) and Chapter 10. In earlier cases Brandon J.
held that claims in rem by owners of boats assisting a ship by towage ( The Conoco
Britannia [1972] 2 Q.B. 543) and provision of services ( The Queen of the South
[1968] P. 449) fell within para. (h) as being in each case an agreement for the hire of a
ship. No mention was made of the fact that it was the plaintiff’s ships that were the ships
in connection with which the claim arose (see comment by Sir Gordon Willmer in The
Jade (C.A.) [1976] 1 Lloyd’s Rep. 81, at p. 96). See also The Daien Maru No. 18
[1986] 1 Lloyd’s Rep. 387, The Span Terza [1982] 1 Lloyd’s Rep. 225; The Tychy
[1999] 2 Lloyd’s Rep. 11 (the latter two being arrests of ships owned by the defendants
in claims in relation to plaintiff’s ship chartered to defendants). See further infra (d)
and (e).
215. The head of claim does not appear in the Arrest Conventions 1952 or 1999.
216. As e.g. (requiring proof of negligence) damage caused through collision with
another ship (The Utopia [1893] A.C. 492) or damage received through use of a dock
(see e.g. The Devon (1923) 16 Asp. M.L.C. 268; The Hoegh Silvercrest [1962] 1
Lloyd’s Rep. 9).
217. [1974] 2 Lloyd’s Rep. 188, at p. 194.
218. [1976] 1 Lloyd’s Rep. 81, at pp. 88, 97. Sir Gordon Willmer thought that if
liability for pollution was strict it was arguable that the root would be the statute
imposing it (ibid. at p. 97). The House of Lords did not construe "damage" in the context
of damage received by a ship (because of the holding that no action in rem lay) but
clearly admitted consequential loss in the context of "damage by a ship" (see [1976] 2
Lloyd’s Rep. 1, at p. 8).
219. See The Zeta [1893] A.C. 468 disapproving The Robert Pow (1863) B. & L.
99.
220. In the Arrest Convention 1952 being "damage caused by any ship either in
collision or otherwise" and in the Arrest Convention 1999 "loss or damage caused by
the operation of the ship" .
221. The Jade [1976] 2 Lloyd’s Rep. 1, at p. 8 (H.L.). For an example of
grounding to avoid a collision, see The Miraflores and the Abadesa [1976] 1 A.C. 826;
of running a vessel into a wall because of the negligence of another ship, The Industrie
(1871) L.R. 3 A. & E. 303.
222. It may now be argued that such claims fall within para. (f) ( infra)—a factor
weighing against inclusion under this head.
223. [1976] 1 Lloyd’s Rep. 81 at pp. 88, 97.
224. Whether or not it is recoverable will depend on general principles of
liability. See e.g. in the context of manufacturers’ liability The Rebecca Elaine [1999] 2
Lloyd’s Rep. 1. As to oil pollution claims see fn. 228. In Caltex Oil (Australia) Pty. Ltd
v. The Dredge "Willemstad" (1975–76) 136 C.L.R. 529 damages were allowed for
economic loss in an action in rem.
225. The Arrest Convention 1999 includes (para. 1(d)) as a head of claim damage
or threatened damage to the environment, coastline or related interests and the costs of
minimising, preventing, reinstatement and loss incurred or likely to be incurred by third
parties.
226. Supreme Court Act 1981, s.20(5) as amended by Merchant Shipping Act
1995, Sch. 13, para. 59.
227. See generally Oil Pollution from Ships (Ed. Abecassis, Stevens 1985).
228. As the Convention structures are incorporated into the Merchant Shipping Act
1995 (see 2.150, 2.153) all claims in respect of them must be started in the Admiralty
Court (CPR 61.2(1)(iv)).
229. See Part VII, Chapter III. The transitory provisions were set out in Sch. 4.
230. By Merchant Shipping (Liability and Compensation for Oil Pollution
Damage) (Transitional Provisions) Order 1996 (SI 1996/1143).
231. See Merchant Shipping (Liability and Compensation for Oil Pollution
Damage) (Transitional Provisions) (Revocation) Order 1997 (SI 1997/2566).
232. Scottish courts held that while pure economic loss may be the ground of an
action, the damage must not be too remote from the causal factor. Landcatch Ltd v.
International Oil Pollution Compensation Fund [1999] 2 Lloyd’s Rep. 316; P and O
Scottish Ferries Ltd v. The Braer Corporation and others [1999] 2 Lloyd’s Rep. 535;
reasoning in the Landcatch case being followed by the English C.A. Algrete Shipping v.
IOPC Fund [2003] 1 Lloyd’s Rep. 237.
233. Sections 153, 154.
234. Sections 157, 165, the limits specified in s.157 being raised as from 1
November 2003 by amendment of the statutory provisions ( Merchant Shipping (Oil
Pollution) Compensation Limits) Order 2003 (SI 2003/25 59).
235. Section 158(8).
236. As to limitation of liability generally see Chapter 24; as to liens see Chapters
18–23.
99.
237. See MSA 1995 ss. 175–183; the 1996 and 1997 Orders set out in fns 230,
231.
238. Section 175. Including expenses reasonably incurred and sacrifices
reasonably made (s.175 (4), (6)).
239. Section 175(7), (8).
240. Section 177(5). As to limitation of liability see Chapter 24.
241. This being three months after the requirements of the number of states (8) and
receipt of contributing cargo were met. As at commencement date the parties are
Denmark, Finland, France, Germany, Ireland, Japan, Norway and Spain.
242. Section 182B of the 1995 Act (inserted by s.14 of the 1997 Act). Any draft
Order must be approved by a resolution of each House of Parliament. Section 14 and
Sch. 3 (inserting Sch. 5A into the 1995 Act) came into force on 17 July 1997.
243. Article 46(1)—once in force, it will come into force for any new State Party
three months after the expression (Art. 46(2)). As to "contributing cargo" see infra. By
31 January 2005 the Convention had been ratified by Angola, Cyprus, Morocco,
Russian Federation and Tonga. By Decision of 18 November 2002 (OJ L337/55) by an
EU Council Decision Member States are directed to become parties if possible before
30 June 2008. As to the need for such a Decision see 3.17, 5.12.
244. See Arts 3, 4.
245. A r t i c l e 5 .
246. Articles 38, 39, 40.
247. Article 7. Other persons may be liable if acting intentionally or recklessly in
respect of the damage (see Art. 7(5)). Rights of recourse against third parties are not
affected (Art. 7(6)).
248. Articles 9, 11.
249. A rt ic le 1 0 .
250. Article 37(1)(3)(4).
251. A rt ic le 1 2 .
252. Articles 13 –36.
253. Articles 13, 14.
254. Article 37(2)(3)(4).
255. Articles 16 –22.
256. A rt ic le 2 3 .
257. Reference is made only to Administration of Justice Act 1956 when excluding
claims, but if no lien can arise it must follow that no action in rem can be brought.
258. Supreme Court of Judicature (Consolidation) Act 1925, s.22, repealing and
replacing the Maritime Conventions Act 1911, s.5. It would follow that the loss (e.g.)
flowing from damages done by a ship would be recoverable even if such a claim could
not fall within s.20(2)(f).
259. A ship is "equipment" for the purpose of deeming defects in it to be deemed
attributable to the "negligence" of the shipowner by virtue of the Employers’ Liability
(Defective Equipment) Act 1969. So where a seaman who suffers injury or loss of life
due to the unseaworthiness of the ship the owner is liable in negligence (The
Derbyshire [1988] A.C. 276; [1988] 1 Lloyd’s Rep. 109 (H.L.)).
260. See e.g. The Kwasind (1915) 84 L.J.P. 102—commenting on the Maritime
Conventions Act 1911, s.5 (repealed and replaced in similar language by the Supreme
Court of Judicature (Consolidation) Act 1925, s.22).
261. It was held in 1925 in The Moliere [1925] P. 27 that a claim for indemnity for
compensation paid under statutory obligation in respect of loss of life was not within
Admiralty jurisdiction.
262. As amended by the Administration of Justice Act 1982. The Act applies to
foreign vessels on the high seas whether the deceased is British or foreign ( The Esso
Malaysia [1974] 2 Lloyd’s Rep. 143).
263. The phrase being adopted from the Fatal Accidents Act 1976 and including
breach of contractual liability under the Occupiers’ Liability Act 1957 (see e.g. The
Eagle [1977] 2 Lloyd’s Rep. 70).
264. As in the Merchant Shipping Acts 1894 and 1995 "master" includes every
person (except a pilot) having command or charge of a ship (1995 Act, s.313(1)).
265. [1897] A.C. 97.
266. See (in support) the construction of "any claim" in para. (h) in The St
Elefterio [1957] P. 179.
267. [1982] 1 Lloyd’s Rep. 397. Since the Salvage and Pollution Act 1994 there is
no need to attempt to apply non-salvage bases to a clearly salvage claim —the claim in
the Tesaba is within the statutory definition (now contained in the Merchant Shipping
Act 1995—see 2.208).
268. It may just be arguable that waiver of the lien because of the defendant’s acts
could amount to loss—but it does not appear that this was the case in The Tesaba
[1982] 1 Lloyd’s Rep. 397.
269. [1976] 2 Lloyd’s Rep. 1.
270. It was conceded before Brandon J. that the cargo owners’ claim fell within
para. (g) but the concession was withdrawn before the Court of Appeal. As to the
meaning of "in connection with a ship", see further 10.25.
271. As to which, see supra .
272. [1974] 2 Lloyd’s Rep. 188, at p. 194. No appeal was brought from this part of
the decision.
273. (1883) 12 Q.B.D. 115.
274. The term used in the Arrest Convention 1952 (para. 1(f)) is "baggage" —in the
1999 Convention it changed to "luggage" (para. 2(h)).
275. This leaves open the question of cause and consequence. So while damages
for delay or loss of profit may be recoverable , indemnity for pollution liability may not.
(See The Jade [1976] 1 Lloyd’s Rep. 81, at p. 85.) Such liability, it may be argued, is
hardly the result of damage to goods unless caused by the goods. To say that the
provision does not include a claim for ind emnity (Thomas, Maritime Liens, para. 183)
seems too wide when basing that assertion on the exclusion of the pollution indemnity in
The Jade.
276. Convention Relating to the Arrest of Sea Going Ships 1952, Art. 1(d) and (e)
which read "ww(d) agreement relating to the use or hire of any ship whether by
charterparty or otherwise; (e) agreement relating to the carriage of goods in any ship
whether by charterparty or otherwise." (Convention 1999, paras 1(f)(g) —para. (f) also
including carriage of passengers.) For full text see Appendix 3.
277. Admiralty Court Act 1861, s.6. It was confined also to carriage into England
or Wales and cases where the owners were not domiciled in England or Wales. The
Administration of Justice Act 1920 enacted the provisions later appearing as s.22(1)(a)
(xii) of the Supreme Court of Judicature (Consolidation) Act 1925. The County Courts
Admiralty Jurisdiction Amendment Act 1869, s.2, conferred jurisdiction on a county
court with Admiralty jurisdiction in relation to "any claim arising out of any agreement
made in relation to the use or hire of any ship" and the early authorities on the scope of
para. (g) are those construing this clause. County court Admiralty jurisdiction was
removed in respect of proceedings commenced or transferred on or after 26 April 1999
(Civil Courts (Amendment (No. 2) Order 1999 (SI 1999/10 11)). For prior jurisdiction
see Chapters 9, 10.
278. Which includes claims based on contract or tort ( The St Elefterio [1957] P.
179, at p. 183).
279. The Nuova Raffealina (1871) L.R. 3 A. & E. 483.
280. The Antonis P. Lemos [1985] A.C. 711; [1985] 1 Lloyd’s Rep. 283 (H.L.).
281. [1974] 2 Lloyd’s Rep. 188, at p. 195.
282. The Alina (1880) L.R. 5 Ex.D. 227 settles the question —in favour of
inclusion of the claim. In The Jade, Brandon J. rejected a contention that the provision
was limited to agreements similar to charterparties (see [1974] 2 Lloyd’s Rep. 188, at
p. 196).
283. [1976] 2 Lloyd’s Rep. 1, at p. 8. See also in Court of Appeal [1976] 1
Lloyd’s Rep. 81, at p. 86 (Cairns L.J.). Compare the restrictive approach in The
Bumbesti [1999] 2 Lloyd’s Rep. 481 relating to arbitration awards applying The Beldis,
a C.A. decision concerned with county court jurisdiction ( see infra "Claims on
arbitration awards").
284. Per Sir Gordon Willmer [1976] 1 Lloyd’s Rep. 81, at p. 93.
285. Or that the claimant must be the user of the ship. See Kuzma Gridash 2001
HKEC 929 (Hong Kong).
286. See infra "Claims on arbitration awards".
287. [1985] A.C. 711; [1985] 1 Lloyd’s Rep. 283.
288. Applied in actions by cargo owners against shipowners where there is no
contractual relationship: The Hamburg Star [1994] 1 Lloyd’s Rep. 399.
289. [1985] A.C. 255; [1985] 1 Lloyd’s Rep. 181.
290. Lord Wilberforce placed emphasis on the travaux preparatoire of the Arrest
Convention. In The Antonis P. Lemos Lord Brandon distinguished The Sandrina
primarily on the ground that in the Convention "arising out of" applied to all claims and
the wide reading only would make sense of the phrase in that context. The reasoning
remains relevant to the 1999 Convention.
291. [1980] 2 Lloyd’s Rep. 403. The jurisdiction provisions applicable to
Scotland are set out in the Administration of Justice Act 1956, s.47 ( see Appendix 1)
and are based more closely on the Arrest Convention than those applicable to England
and Wales. The provisions equivalent to para. (h) applicable to England are s.47(2)(d )
and (e) each worded identically to the Arrest Convention (as to which, see Appendix
3).
292. They also fell outside the concept of necessaries in Scotland —they also were
excluded in England (The Andre Theodore (1904) 10 Asp. M.L.C. 94).
293. [1992] 1 Q.B. 571; [1991] 1 Lloyd’s Rep. 169.
294. Unlike a claim for demurrage in a charterparty where the demurrage
provisions are in a c.i.f. contract: The Maersk Nimrod. In holding that a demurrage
claim was not a carriage claim or one based on the use of a shi p, Phillips J. held
himself bound by The Zeus (1888) 13 P.D. 188, approved in The Sandrina.
295. [1983] 1 Lloyd’s Rep. 63.
296. Containers supplied to a shipowner for use on his ships without naming the
ships and so used are not goods supplied for the operation of a ship—a perhaps even
more commercially unrealistic decision ( see (i) infra).
297. [1982] 1 Lloyd’s Rep. 397.
298. At p . 4 0 1 .
299. So a claim for wrongful detention of goods carried is within the phrase: The
Gina [1980] 1 Lloyd’s Rep. 398. See also The Samarkand (1996) LMLN 444 (C.A. of
New Zealand) (negligent misrepresentation to subcharterers of cargo capacity).
300. See The Jade [1976] 2 Lloyd’s Rep. 1, at p. 8 (H.L.) and supra fn. 250. In
The Zeus (1886) 6 Asp. M.L.C. 312 an agreement to deliver coal entered into pursuant
to a charterparty between the charterers and a coal merchant was held not to be an
agreement relating to the use of a ship —and there can be little argument with the
conclusion.
301.The Alina (1880) L.R. 5 Ex.D. 227. Including a part of a ship (a slot
charterer) (The Tychy [1999] 2 Lloyd’s Rep. 11) but as regards all charterers only in
respect of liabilities incurred during the period of the charter ( see Supreme Court Act,
s.21(4); The "Faial" [2000] 1 Lloyd’s Rep. 473). See generally Chapter 10.
302.The Stella Nova [1981] Comm.L.R. 200.
303.The Conoco Britannia [1972] 2 Q.B. 543; The Isca (1886) 12 P.D. 34.
304.The Jade [1976] 2 Lloyd’s Rep. 1. But see The Tesaba (infra).
305.Pugsley & Co. v. Ropkins & Co. [1892] 2 Q.B. 184—although it is not clear
which branch of the provision (carriage or hire) was thought to apply.
306.The Queen of the South [1968] P. 449.
307.The Jade [1976] 1 Lloyd’s Rep. 81, at p. 86 (Cairns L.J.).
308. [1995] 1 Lloyd’s Rep. 54.
309. As will a contract for part of a ship (e.g. a slot charterer). See The Tychy
[1999] 2 Lloyd’s Rep. 11, at p. 14 (C.A.) and 10.38 to 10.40.
310. As to salvage claims as a separate category, see infra.
311. I.e. owners to use their best endeavours to ensure that cargo owners provide
security (see Clause 4(d) of LOF 1995 —in LOF 2000 the obligation is generally not to
release any of the property salved until security is provided (Clause 4.6)).
312. [1982] 1 Lloyd’s Rep. 397, at p. 401.
313. [1972] 2 Q.B. 543. See also The Isca (1886) 12 P.D. 34 (decided under
the provisions of the County Courts Admiralty Jurisdiction Amendment Act 1869, s.2).
314. [1968] P. 449.
315. In The Tesaba [1982] 1 Lloyd’s Rep. 397 the purpose of issuing the
writ in rem appeared to obtain security as the dispute had already been submitted to
arbitration —as to which see Chapters 13 and 15.
316. The matter may be rendered less relevant by the extension in 1994 of
the "salvage" head of jurisdiction (see (f) supra).
317. See further Chapter 13 and generally Mustill and Boyd Commercial
Arbitration (3rd edn), Butterworth 1999, Chapter 28.
318. [1936] P. 51.
319. [1933] 1 K.B. 753.
320. [1983] 1 Lloyd’s Rep. 637.
321. [1981] Com. L.R. 200.
322. [1999] 2 Lloyd’s Rep. 481.
323. This is in effect the converse view to that expressed in The Beldis—
that it would be wrong to assert jurisdiction "merely because the arbitration was held
pursuant to an arbitration clause in a charterparty . . . "—but surely that is to
subordinate the substantive contract to the arbitration agreement, whereas the
agreement can only be seen in the context of the substantive contract.
324. Insurance claims are included as maritime claims in the Ar rest
Convention 1999 (see supra and Chapter 15).
325. The substance of a salvage claim is considered in relation to claims
attracting a maritime lien. See supra.
326. Section 1(6), Sch. 2, para. 6, substituting new text in the Supreme Court
Act 1981, ss.20(2)(j), (6). Scottish and county court jurisdiction was similarly
amended (Sch. 2, paras 4, 7) but as to county courts, see 9.99. The 1994 Act was
repealed and consolidated with other Merchant Shipping Acts into the Merchant
Shipping Act 1995 (in force on 1 January 1996).
327. Supreme Court Act 1981, s.20(6). It is also extended to aircraft
(ibid., ss.20(2)(j) and 20(6)).
329. Supreme Court Act 1981, s.20(7)(b). Salvage jurisdiction is extended
to hovercraft (Hovercraft Act 1968, ss.1 and 2 (as amended by the Supreme Court Act
1981, s.152(i), Sch. 5); the Hovercraft (Application of Enactments) Order 1972, Art. 8).
331. See [1974] 2 Lloyd’s Rep. 188, at p. 196; [1976] 1 Lloyd’s Rep. 81,
at pp. 85, 93. In the House of Lords the plaintiffs appear not to have relied on this
paragraph.
332. [1982] 1 Lloyd’s Rep. 397.
333. For a suggestion that the provision is "confined to a salvage award
arising from beneficial service" see Thomas Maritime Liens, op. cit., paras 251, 252.
But this
seems to ignore the link between the legislation and the Arrest Convention (simply
""salvag"’) and to be unnecessarily restricted. As to the Arrest Convention 1999, see
infra.
334. See supra, pp. 27–32.
335. As to which see supra"‘maritime lien claim"’. Apportionment between
salvors is provided for in Art. 15.
336. Or a corresponding claim in connection with an aircraft under the Civil
Aviation Act 1982, s.87 (providing for salvage services by or to aircraft in or over the
sea) (s.20(3) as substituted by the 1994 Act, Sch. 2, pa ra. 6(3)). The Arrest Convention
provides (in para. 1(c)) "salvage operations, or any salvage agreement including, if
applicable, special compensation relating to salvage operations in respect of a ship
which by itself or its cargo threatened damage to the environment" (the inclusion
referring directly to Art. 14 of the Salvage Convention 1989). The difference in wording
does not seem to reflect any difference in substance.
337. Supreme Court Act, s.20(6), as substituted by the M erchant Shipping (Salvage
and Pollution) Act 1994, Sch. 2, para. 6(3). The provisions of the Merchant Shipping
Act 1894 relating to life salvage and coastal salvage (ss.544, 545, 546) ceased to have
effect (ibid., Sch. 2, para. 1(2)). As from 1 January 199 6 the reference to the 1994 Act,
s.1, in the Supreme Court Act 1981, s.20(6)(a) became a reference to the Merchant
Shipping Act 1995, s.224 (1995 Act, Sch. 13, para. 59(2)).
338. See the definition of a salvage claim in the Civil Procedure Rules (n. 333b) .
339. By the Civil Procedure Rules a salvage claim must be started in the Admiralty
Court. Such a claim is defined as one in the nature of salvage, for special compensation
because of environmental factors (as to which see fn. 336), or for apportionment or
"arising out of or connected with" any contract for salvage services (CPR 61.1, 2).
340. S e e 2 . 4 5 .
341. Or aircraft while water-borne (ibid., s.24(1)). The equivalent reference in the
Arrest Convention 1952 (para. 1(1)(i)) and 1999 (para. 1(1)(j)) is simply to "towage" .
342. It is uncertain whether the Admiralty Court had jurisdiction in towage prior to
the Admiralty Court Act 1840, but accepting that there is no maritime lien, nothing turns
on this. For an award for towage prior to 1840, see The Isabella (1838) 3 Hag.Adm.
427. As to possibility of such a claim attracting a maritime lien, see supra, 2.112.
343. The Princess Alice (1849) 3 W. Rob. 138, at p. 140.
344. The Hjemmet (1880) 5 P.D. 227.
345. [1962] 2 Lloyd’s Rep. 146. In The Conoco Britannia [1972] 2 Q.B. 543 it
was argued that the provision covered a claim for indemnity under a towage contract for
loss flowing from a collision between a tug supplied by the plaintiffs and the ship to
which it was rendering towage service. Brandon J. decided that the claim fell within the
provision concerning hire of a ship and made no finding on this point.
346. Or aircraft while water-borne (ibid., s.24(1)). The Arrest Conventions 1952,
1999 provide simply for "pilotage"—paras 1(1)(j), 1(k).
347. See The Nelson (1805) 7 C. Rob. 227; The Bee (1822) 2 Dods. 498; The
Eliza (1833) 3 Hag.Adm. 87; The General Palmer (1828) 2 Hag.Adm. 176. As to
uncertainty of a pilotage claim attracting a maritime lien, see supra. Harbour authorities
may recover pilotage charges for provision of pilotage services "as a civil debt or in
any other manner by which ship passengers and goods dues are recoverable by th e
authority": Pilotage Act 1987, s.10(9).
348. The equivalent Arrest Convention 1952 provision is "goods or materials
wherever supplied to a ship for her operation or maintenance" (Art. 1(k)). The
Australian legislation adds "services" to "goods and materials". In The Bass Reefer
[1992] LMLN 335 the Federal Court thought there was a strong argument that a purely
berthing agreement was within the meaning of "services". The Arrest Convention 1999
(para. 1(1)) is more elaborate—"goods, materials, provisions, bunkers, equipment
(including containers) supplied or services rendered to the ship for its operation,
management, preservation or maintenance".
349. Jurisdiction over necessaries was, with restric tions, conferred on the
Admiralty Court by the Admiralty Court Act 1840, s.6, and extended by the Act of 1861,
s.5. Jurisdiction over claims for ship repair, building and equipping was conferred in
addition by the Act of 1861, s.4, where a ship or proceeds were under arrest. The
Supreme Court of Judicature (Consolidation) Act 1925, s.22(1)(2)(i), (vii) and (x)
reflected the jurisdiction as extended. In The Queen of the South [1968] 1 Lloyd’s Rep.
182 Brandon J. suggested that the jurisdiction regarding nece ssaries under the latter Act
was preserved through the "sweeping up" provision of the Administration of Justice Act
1956. As to this argument, see supra. Necessaries are connected with masters’
disbursements which operated on similar principles. As to disb ursements, see s.20(2)
(p) of the Supreme Court Act 1981 and infra. As to the need for liability in personam of
the owner for an action in rem to lie, see Chapter 10 and infra.
350. Old habits sometimes continue. See the claims for necessaries in The
Carmania II [1963] 2 Lloyd’s Rep. 152; The Queen of the South [1968] 1 Lloyd’s Rep.
182.
351. The Fairport (No. 5) [1967] 2 Lloyd’s Rep. 162—applying the reasoning
applied to necessaries in The Mogileff[1921] P. 236.
352. The Kommunar [1997] 1 Lloyd’s Rep. 1. Clarke J. referred to a number of
authorities on necessaries. Although he thought none conclusive, he also thought none
indicated that under the previous law such a claim would not be within the concept.
353. The Edinburgh Castle [1999] 2 Lloyd’s Rep. 362; The "Nore Challenger"
and "Nore Commander" [2001] 2 Lloyd’s Rep. 103.
354. Cf. Halsbury’s Laws, 4th edn, para. 337.
355. [1968] 1 Lloyd’s Rep. 182, at p. 189—where it was argued that the rendering
of mooring services through the provision of motor boats was a supply of materials.
Brandon J. limited his comment to the context of the case before him.
356. [1988] 2 Lloyd’s Rep. 193 (H.L.), applied in construing para. (i) in The
Lloyd Pacifico [1995] 1 Lloyd’s Rep. 54 (see supra).
357. For a similar approach in the United States see Itel Containers Corpn v.
Atlantrafik Express Service Ltd, USCA 2nd Circuit [1992] LMLN 345. For a wholly
different approach based on "equitable" maritime jurisdiction in Ca nada, see The
Nikolay Golanov [1994] LMLN 391. For a critique of the US approach see [1994]
Tulane Journal of Maritime Law 33 (Borchens).
358. It is to be hoped that the change in the 1999 Convention to "the" ship (a
change made in respect of many of the heads of claim) does not herald the need for
particularisation of one (or each) of a fleet of ships.
359. See The Sandrina [1985] 1 Lloyd’s Rep. 181 per Lord Wilberforce (at p.
183). The criticism of focusing on domestic precedents rather than the Convention ( see
[2004] LMCLQ at p. 155) with respect ignores the origin of the Convention.
360. There must be at least an argument that the identity of a particular ship goes
more to the action in rem (i.e. s.21) than Admiralty jurisdiction—although whether an
action in personam is within or outside that jurisdiction in a contract case may not be of
the greatest importance. The argument in the text is against the need for identification of
a particular ship for the supply prior to the supply itself.
361. As to the present connection of liability in personam and action in rem, see
Chapter 10.
364. Article 1(l). Port dues attract a maritime lien un der the Conventions on
Mortgages and Liens 1926, 1967 and 1993 ( see Chapter 17). In the 1999 Arrest
Convention the heading is divided—"construction, reconstruction, repair, converting or
equipping of the ship" (para. 1(m)); "port, canal, dock, harbour and other waterway
dues and charges" (para. 1(n)).
365. The general statutory power of distraint for such dues (Harbour, Docks and
Piers Clauses Act 1847, s.44) is under the Harbour Act 1964, ss.26, 57(1) for charges "
. . . for entering, using or leaving the harbour". That does not extend to charges for
additional or optional services, such as mooring The Winnie Rigg [1998] 2 Lloyd’s
Rep. 675.
366. See, for treaty requirements of notice to the appropriate consul of arres t of a
foreign ship, CPR 61.5(5), (6) (considered in Chapter 15). The Supreme Court Act
provides only that ss.21–23 do not limit jurisdiction not to hear claims by masters or
crew of a non-British ship (see s.24(2)(a)).
367. Offices made expressly wider in the 1999 Convention, para. 1(1)(o)—"wages
and other sums due to the master, officers and other members of ship’s complement in
respect of their employment on the ship, costs of repatriation and social insurance
contributions payable on their behalf"—it is hopefully not arguable that this phraseology
introduces a limitation to sums earned on board the ship (as to which see "maritime
liens" supra).
368. Supreme Court Act 1981, s.20(1)(b). See infra. Section 20(7) retains any
limitation on the recovery of "money or property" specified in the Merchant Shipping
Act 1995. Compare the wording of the equivalent provision of the Administration of
Justice Act 1956, s.1(1)(o) of which reads: "( o) any claim by a master or member of the
crew of a ship for wages and any claim by or in respect of a master or member of the
crew of a ship for any money or property which, under any of the provisions of the
Merchant Shipping Acts, 1894 to 1954, is recoverable as wages or in the court and in
the manner in which wages may be recovered."
369. Defined in the Supreme Court Act (s.24(1)) as under the Merchant Shipping
Act 1995.
370. The Silia [1981] LMLN 36.
371. See fn. 359. Any argument as to possible restriction of jurisdiction by the Act
of 1981 is met by the sweeping up provision —as to which, see supra.
372. Supreme Court Act 1981, s.20(1)(b) and (3)(a).
373. S e e s . 4 5 .
374. See ibid., ss.73–75.
375. Ibid., s.37. By this provision the person to whom the wag es are allotted has
the right to recover in his or her own name and "the same remedies as the seaman has
for the recovery of his wages" .
376. CPR 61.2(1)(iv) replacing (as, in the 1981 Act) "any application under the
Merchant Shipping Act 1995" (49F P.D. 1.5(d)).
377. See para. 2.8.
378. Simplified in the 1999 Convention to read "disbursements incurred on behalf
of the ship or its owners".
379. Bain Clarkson v. Owners of the Ship "Sea Friends" [1991] 2 Lloyd’s Rep.
322 (C.A.) disagreeing with a Hong Kong decision ( Clifford Chance v. Owners of the
Vessel "Atlantic Trader") that legal fees came within this provision.
380. The Lloyd Pacifico [1995] 1 Lloyd’s Rep. 54 (as to which see supra). See
also Doris v. The Ship Ferdinand (Can. Fed. Court) LMLN 498 (not including
disbursements as director for the general administration of a holding company, with 12
subsidiary companies each owning a floating home). But a head of claim under the 1999
Arrest Convention (para. 1(v)) is "any commission, brokerages or agency fees payable
in respect of the ship by or on behalf of the shipowner or demise charterer".
381. The Westport (No. 3) [1966] 1 Lloyd’s Rep. 342. Agent probably includes
"managing agent"—not being restricted to ship’s agent (The Cocona Energy 1977 folio
No. 174, cited in Bain Clarkson v. Owners of the Ship "Sea Friends" (supra)).
382. Article 1(1)(g) (and also in the 1999 Convention (Art. 1(i)). This type of
claim attracts a maritime lien under the Convention on Mortgages and Liens 1926 and
1967 (as to which, see Chapter 18).
383. Marine Insurance Act 1906, s.66(2).
384. Cf. General Average and York-Antwerp Rules, Lowndes and Rudolph, 12th
edn, 1997.
385. Marine insurance claims for premiums are not of themselves within Admiralty
jurisdiction nor within the Arrest Convention 1952 but may fall within it if brought
under any of the heads of the Supreme Court Act 1981, s.20. Cf. supra. The Arrest
Convention (1999) includes such claims ( para. 1(q)). See Chapter 15.
386. Presumably an action might lie against a bondholder or, possibly, against a
borrower on some matter arising from the bond other than the liability to repay.
387. As to possible confusion between in rem jurisdiction and Admiralty
jurisdiction see supra.
388. See the Supreme Court Act 1981, s.22(2) –(7); CPR 61.4(7). A claim form
may be served out of England only in such actions and with the permission of the court
(CPR 61.4(7)). For comment see Chapter 9.
389. For examples, see applications in connection with transfers of ships —a
person with a proprietary interest in a ship may apply for an order prohibiting for a
specified time any dealing in a ship (Merchant Shipping Act 1995, Sch. 1, paras 2, 6).
This is a substantive right not limited to the jurisdiction of the court (such as to
transmission transfer and sale of ships) to which the preceding paragraphs of the
Schedule apply: The Mikado [1992] 1 Lloyd’s Rep. 163 (construing s.30 of the
Merchant Shipping Act 1894) (see supra). Section 55 of the Merchant Shipping Act
1894 applications under which were excluded from s.20(3)(a) was repealed by the
Merchant Shipping Act 1988, Sch. 1, para. 32.
390. See RSC Ord. 75, r. 1, CPR 49 F PD 1.5, 1.6. The plaintiff selects the
appropriate Division for his claims but the proceedings may be transferred (Supreme
Court Act 1981, ss.64, 65, 49 F PD 1.7, 1.8).
391. See 2.222, 2.224 for discussion of its application to claims for recovery of
money, wages or property.
392. 6 1.2(i), (iv).
393. See further Chapters 9, 10.
394. RSC Ord. 75, r. 2(1).
395. 6 1 . 2 (1 )( b ).
396. 61.2(1)(c). As to restriction on service of the claim form out of England see
Chapters 9, 24.
Part II
Jurisdiction of English Courts and Arbitral Tribunals

Chapter 3
Jurisdiction Bases for Enforcement of Maritime Claims 1. Jurisdiction to

Decide Substantive Jurisdiction
3.1 Such jurisdiction is inherent in the High Court, it being stressed that it is a court
of unlimited jurisdiction. 1 But that is neither accurate nor the underlying reason —for if
it were so there would never be any issue to decide. It is precisely because there are
limits that the power to decide whether the limits are applicable becomes relevant. In
practice despite dicta in the Court of Appeal 2 most courts and tribunals have the power
to decide their own jurisdiction—with whatever appeal or review provided by the legal
process. Subject to express exclusion the power is inherent in the legal process. The
power to grant interlocutory orders exists in relation to both the exercise of substantive
jurisdiction and in proceedin gs to decide if such jurisdiction exists or should be
exercised. 3 2. The Substantive “Jurisdiction Base” Service of Process and
Jurisdiction Bases
3.2 Unlike many countries the English approach equated the procedure of
commencement of the action with the substantive power to adjudicate on it.
Traditionally, apart from submission of a defendant, the general foundation for
jurisdiction in English courts was service of a writ, now by the Civil Procedure Rules
1998 a "claim for" (see Part 7). An in personam claim form now entitled "Admiralty
clai" form must be served on the defendant or by other permitted method and an in rem
claim form "Admiralty claim in re") on the maritime property in respect of which the
action is brought or as otherwise provided for in Part 61 of the the Civil Procedure
Rules and the Admiralty Practice Direction. If the claim form is properly served in
England, save as expressly provided ( see infra), no further connection between the
dispute and England is normally required. There are rules permitting service of an
Admiralty or other claim form out of England in certain categories of case having some
substantive connection with England, and a power (perhaps uncertain in extent) to serve
an ancillary order on a person outside England in respect of a pending action in England
(see Chapter 9).
3.3 This process still remains the basic "national" English law approach but it is
now much modified by the increasing application of "jurisdiction bases" (i.e. a
substantive connection between England and the dispute) —largely as the result of the
enactment of Conventions into English law. Where a base is required, jurisdiction
depends on the existence of a specified substantive connection between the case and
England. The service of the claim form then has a purely procedural role of
commencement of the proceedings. The process (both uninfluenced and influenced by a
jurisdiction base) is discussed in Chapters 9 and 10. The Development of Jurisdiction
Bases Limitations on “claim form” jurisdiction
3.4 The assertion of jurisdiction through service of a writ (now a claim form) has
never been without limit. 4 First, limitations inherent in the process are the inability to
serve an in rem claim form abroad, and the limitation to specified categories with
substantive connections with England of the ability to serve any other claim form
abroad.5 Secondly, there are restrictions even if a claim form may be served abroad or
even in England. So, for example, an English court will not e ntertain an action in respect
of the title to foreign land not situate in a contracting state to the Brussels Convention, 6
and there are limits to the power to order a foreigner within England to comply with its
rules where compliance would be by acts outside England. 7 Thirdly, the assertion of
jurisdiction has become progressively balanced by the opportunity of a defendant to
seek a stay of proceedings (i.e. that jurisdiction should not be exercised) on the basis
that they would more appropriately be heard elsewhere. 8 Convention jurisdiction
requirements
3.5 Apart from the necessity of substantive connection introduced through
limitations on service, positive jurisdiction bases have been introduced into English
law largely through the enactment of Conventions. 9 Those relevant to maritime claims
are by no means each self -contained and there is, therefore, a risk of conflict of
Conventions. First, there is the problem of the developing line of Conventions —as in
the rules governing carriage of goods by sea. The Hague Rules 1924 were for some
state parties superseded by the Hague-Visby Rules 1968 and in turn later rules for some
by the Hamburg Rules 1978.
3.6 Secondly, there is potential overlap because of subject -matter. So the Hague
Rules and their successors will impinge on Conventions relating to limitation of
liability in respect of all claims based on a single incident. Conventions concerned with
jurisdiction in general may, without express provision, clash with Conventions
concerning jurisdiction on particular matters (such as collision) or substantive law
Conventions having jurisdiction provisions. There is, therefore, a need to consider
whether any particular Convention is expressly or impliedly subject to another.
3.7 The scope of the jurisdiction base depends on the Convention provision as
enacted, but in no case does it differ domestically as between an action in personam
and in action in rem.10 All Convention bases apply to each although the mode and extent
of the application will depend on the base imposed. The first jurisdictional issue in any
case is therefore whether any base applies or whether jurisdiction still depends solely
on the process based essentially on service of the claim form or submission. As has
been said, where a base is applicable the service of the claim form remains relevant but
only as the procedural commencement of the action. In this work consideration will first
be given to the particular and general jurisdiction bases and subsequently to the rules
relating to service of a claim form. Enactment or incorporation of Conventions into
English law
3.8 A Convention ratified by the United Kingdom will have positive effect in
domestic law only insofar as it is enacted either directly or indirectly by statute. 11 That
enactment may be by direct adoption of the Convention text, by enacting provisions
reflecting the Convention, arguably, by incorporation through enactment of a Conv ention
applying provisions of one not directly enacted, or provision in primary legislation for
implementation of particular Conventions or particular categories of Conventions. So by
the Merchant Shipping Act 1995 authority is conferred subject to specifi ed powers of
approval or annulment by Parliament to make provision for giving effect to
Conventions:
(i) by Order in Council Conventions relating to the prevention and reduction or
control of pollution from ships, drilling rigs and other platforms on wat er and generally
in regard to such Conventions (see ss.128, 129) 12 or by order to amend limits of
liability to reflect Convention amendments 13;
(ii) by safety regulations, Conventions relating to the safety of ships and the health
and safety of persons on them to ships in United Kingdom waters otherwise exempt from
such regulations (ss.85, 86) 14;
(iii) by Order in Council to give effect to the HNS Convention (the text being
contained in Schedule 5A) (s.182B) 15;
(iv) by Order in Council to amend Schedule 7 (setting out the text of the
Convention relating to Limitation of Liability 1976 and related provisions) to reflect the
1996 Protocol or further amendments agreed to by the United Kingdom (s.185(2A,
2B))16 or prescribing the rate of interest to be included in a limitation fund 17;
(v) by Order of the Secretary of State to amend Schedule 5A and Schedule 7 to
reflect any change in the limits of liability (ss.182C, 185(2C)) 18;
(vi) by statutory instrument to give effect to any international agreement relating to
the protection of wrecks outside United Kingdom waters (Merchant Shipping and
Maritime Security Act 1997, s.24). 19
There are in addition wide powers to amend the Merchant Shipping Act by
regulation in connection with safety regulations (section 86). 20 Types of Convention
with jurisdiction provision
3.9 Conventions enacted into English law with private law jurisdiction provisions
are of three types—those concerned primarily with:
(i) substantive law on a particular topic (as, for example, the Athens Convention
relating to the Carriage of Passengers and their Luggage by Sea 1974);
(ii) procedure or jurisdiction on a particular topic (as, for example, the Convention
relating to the Arrest of Sea-Going Ships 1952 and the Collision (Civil Jurisdiction)
Convention 1952);
(iii) general jurisdiction structures relating to all or most commercial claims (as
the European Union Convention on Jurisdiction and the Recognition and Enforcement of
Judgments in Civil and Commercial Matters 1968 (as amended) (i.e. the Brussels
Convention) and the treaty between the then states of the European Union and the
European Free Trade Association in 1988 of the same title (the Lugano Convention 21)) —
in each case the Convention not only applying its own provisions but in some
instances giving priority to others (see Chapter 8). Types of Conventions with possible
impact on jurisdiction
3.10 Some Conventions impose duties directly on State Parties. So th e United
Nations Law of the Sea Convention 1982 sets out a framework for the use of the oceans.
It contains provisions in respect of civil and criminal State jurisdiction in respect of
foreign ships (see Chapters 9, 10, 15). Many other Conventions are whol ly or primarily
concerned with obligations of a public or an administrative nature to be imposed on
owners, operators or masters with criminal sanctions (as, for example, the International
Convention relating to Safety of Life at Sea (SOLAS), the Internati onal Convention on
Load Lines 1966 22 or the International Labour Conventions). 23 When legislatively
applied in English law such Conventions may affect duties in private law and they will
ordinarily contain powers of detention of ships. The latter may affec t the enforcement of
liens or generally the availability of remedies ( see Chapters 15, 23, 25). The statutory
arbitral process applicable to the assertion that a ship is unsafe is extended to the
obligation of survey and certification. The law of the European Union (“European
law”)
3.11 European law may provide a direct source of law affecting maritime claims
including jurisdiction. So the Treaty of Rome and the Treaty of European Union as
amended by subsequent treaties, Regulations and directly applicable Directives may
affect jurisdiction, governing law, recognition and enforcement of judgments or
substantive elements of claims. Many Directives concerning transport made under Title
V of the amended Treaty are implemented in English law by regulations made under the
European Communities Act 1972 (as amended) 24 and other legislation. National laws of
Member States are subject to European law and inconsistency may lead to invalidity.
3.12 Several titles of the Treaty are relevant to maritime matters—e.g. Transport
(Title V), Employment (Title VIII) and Social Policy (Title XI) and (Title IV) —directly
relevant to jurisdiction and enforceability of judgments. Further, as is to be expected, a
number of national regulations implement Council Regulations and Directives
concerning e.g. the definition of vessel, statistical returns in relation to the carriage of
passengers, health and safety of workers on board ship, and maritime safety. 25 General
principles such as freedom of movement of workers and services and prohibition of
discrimination may affect the power to control maritime (as other) activities 26 and lead
to rights of compensation. 27
3.13 Particularly relevant to jurisdiction and procedure is that, through Title IV of
the Treaty of Rome as amended by the Treaty of Amsterdam, judicial co -operation in
specified matters becomes for all member States save Denmark, Ireland and the United
Kingdom part of substantive European law. 28 The three states for which this is not so
may opt into any aspect in regard to which they are not bound. The United Kingdom and
Ireland indicated their intention so to do in respect of judicial co -operation in civil
matters and have implemented that intention.
3.14 The matters specified by the Treaty are cross -border services of documents,
taking of evidence, recognition and enforcement of decisions in civil and commercial
cases and compatibility of rules of member States concerning (a) conflict of laws and
jurisdiction and (b) civil procedure. Pursuant to these provisions for all member States
save Denmark as from 1 March 2002 Regulation 44/2001 (as amended) 29 replaced the
Brussels Convention on Jurisdiction and Judgments 1968 and as from 31 May 2001
Regulation 1348/2000 replaced the Hague Convention on the Service Abroad of
Judicial Documents in Civil and Commercial Matters 1965. 30 These will be discussed
in Chapters 4 to 6.
3.15 Under the Brussels Convention parties were able to enter or rely on
Conventions past or future "on particular matters" having jurisdiction and judgment
rules inconsistent with the Convention and with non -member States in relation to
judgment given in cases based on "exorbitant" jurisdiction. However, by the Regulation
only such Conventions entered into prior to the Regulation are given precedence
(Article 71).
3.16 Insofar as the Community has exclusive competence members bound by it
cannot act save so as to implement it. Matters within the Regulation on jurisdiction and
judgments (Reg 44/200 1) are exclusive to the Community. As a consequence as from 7
March 2001 member States were prohibited from becoming parties to Conventions on
substantive law but including jurisdiction or judgment provisions inconsistent with the
Regulation (see Chapter 5).
3.17 A number of Conventions dealing with important substantive issues of
international law and policy in maritime matters include such provisions and EU
member States could not therefore become parties simply because of these provisions.
To resolve this problem a practice has developed of Council decisions authorising (and
encouraging) member States to become parties. 31 Without this approach a uniform
approach to maritime matters on critical matters would not be possible.
3.18 A further development as regards maritime Conventions is to permit the
Community, as a Regional Economic Integration Organisation to become a party. So
where competence within the Union is mixed as between the Community and member
States the Convention can be applied to the Union. Such is the Protocol 2002 to the
Athens Convention. 32 The Commission has proposed a Council Decision (a) approving
the Community becoming a party to the Protocol and (b) obligating member states to
become parties by 31 December 2005. 33 To achieve uniform practice throughout the
Community it is added by the Commission that the Protocol "needs to be complemented"
by a Regulation incorporating the Convention into EU law, and such a regulation is to be
proposed.34 3. Particular Jurisdiction Bases 1. Convention Texts Directly Enacted
3.19 Express jurisdiction bases relevant to maritime claims are enacted through
statutory adoption of the text of (i) the Convention relating to the Carriage of Passengers
and their Luggage by Sea 1974 (the Athens Convention) and (ii) the Convention relating
to International Carriage of Goods by Road 1956 (the CMR Convention). It is a rguable
that the Hague-Visby Rules 1968 contain an implied jurisdiction provision. The text of
the Convention on Liability and Compensation for Damage in Connection with the
Carriage of Hazardous and Noxious Substances by Sea 1996, including jurisdiction
provisions in respect of actions against the shipowner and the HNS fund, is set out in
Schedule 5A of the Merchant Shipping Act 1995 added by the Merchant Shipping and
Maritime Security Act 1997. Provisions of the Convention may be brought into force by
Order in Council (section 182B). (i) The Athens Convention 1974 (Merchant Shipping
Act 1995, Schedule 6)
3.20 The Convention 35 provides a liability regime for the carriage of passengers
and their luggage. 36 By Article 2(1) it applies to any international carr iage if:
(a) the ship is flying the flag of or is registered in a State party to this Convention,
or
(b) the contract of carriage has been made in a State party to this Convention, or
(c) the place of departure or destination, according to the contract of carriage, is in
a State party to this Convention.
3.21 Potential conflict of Conventions is dealt with by Article 2(2):
"Notwithstanding paragraph 1 of this Article, this Convention shall not apply when
the carriage is subject, under any other international convention concerning the carriage
of passengers or luggage by another mode of transport, to a civil liability regime under
the provisions of such convention, in so far as those provisio ns have mandatory
application to carriage by sea." 37
The Convention is extended to journeys under the contract of carriage within the
area of the United Kingdom, the Channel Islands and the Isle of Man if there is no
intermediate port of call outside the area. 38
3.22 Article 17 of the Convention provides:
"Competent jurisdiction
1. An action arising under this Convention shall, at the option of the claimant, be
brought before one of the courts listed below, provided that the court is located in a
State Party to this Convention:
(a) the court of the place of permanent residence or principal place of business of
the defendant, or
(b) the court of the place of departure or that of the destination according to the
contract of carriage, or
(c) a court of the State of the domicile or permanent residence of the claimant, if
the defendant has a place of business and is subject to jurisdiction in that State.
(d) A court of the State where the contract of carriage was made, if the defendant
has a place of business and is subject to jurisdiction in that State.
2. After the occurrence of the incident which has caused the damage, the parties
may agree that the claim for damages shall be submitted to any jurisdiction or to
arbitration."
3.23 An action under the Convention may be brought in the United Kingdom,
therefore, only if one of the connections there specified exists between the case and the
United Kingdom. The 2002 Protocol (not yet in force) 39
3.24 The objectives of the Protocol are to provide for "enhanced compensation, to
introduce strict liability, to establish a simplified procedure for updating limitation
comments and to ensure compulsory insurance for the ben efit of passengers". There is
no change to the provisions for conflict of Conventions, 40 excluding carriage by another
mode of transport applied to carriage by sea ( see n. 40) or the non affecting of global
limitation (see n. 36) but the provision for competent jurisdiction (Article 17) is
amended to take account of (a) multiple possible forums in a State and (b) claims for
compensation against an insurer or person providing financial security. As to (a) the list
of courts before which an action may be brought (Article 17(1) is qualified by being
made "subject to the domestic law of each State Party governing proper venue within
those States with multiple possible forums". As to (b) such insurance or security must
be maintained by ships registered in a State party licensed to carry more than twelve
passengers.41 The jurisdictions in which such a claim may be brought are added to —
" . . . at the option of the claimant . . . before one of the courts where action could
be brought against the carrier or performing carrier." 42 (ii) The CMR 1956 (Carriage of
Goods by Road Act 1965, Sch.)
3.25 The Convention provides a carriage and liability regime for contracts of
international carriage by road. Subject t o specific exceptions relating to post, funerals
and furniture removal the Convention applies to every contract for the carriage of goods
by road in vehicles for reward where the place of taking over a delivery specified in the
contract is in different countries one of which is a contracting State. 43 It applies to
carriage by sea where part of the journey is by sea and the vehicle is not unloaded.
However, where it is proved that loss, damage or delay was not caused by the road
carrier but by an event which could only have occurred during the sea transport, the
carrier liability is to be determined as if the contract was for carriage of goods by sea. 44
3.26 The courts within which an action may be brought are limited. It is provided
by Article 31(1):
"1. In legal proceedings arising out of carriage under this Convention, the plaintiff
may bring an action in any court or tribunal of a contracting country designated by
agreement between the parties and, in addition, in the courts or tribuna ls of a country
within whose territory
(a) the defendant is ordinarily resident, or has his principal place of business, or
the branch or agency through which the contract of carriage was made, or
(b) the place where the goods were taken over by the carrier or the place
designated for delivery is situated,
and in no other courts or tribunals." 45 (iii) The Hague- Visby Rules 1968
3.27 While there is no express jurisdiction provision it was held by the House of
Lords in The Morviken46 that the parties may not avoid the rules through agreeing on a
non-Hague-Visby Rules state in which the carrier may be subject to a lower limitation
of liability than provided by the Rules. So in an action brought in England the rules will
be applied—this does not so much found jurisdiction as removes a limit normally
applicable on jurisdiction by service of a claim form. 47 2. Conventions Reflected in
English Law48
3.28 Relevant to maritime claims are:
(i) the Convention Relating to the Arrest of Sea Going Ships 1952 (the Arrest
Convention) enacted at least in part through (now) the Supreme Court Act 1981, s.20 49
(ii) the International Convention on Certain Rules Concerning Civil Jurisdiction in
Matters of Collision 1952 (the Collision Jurisdiction Convention) —(the basis of
Supreme Court Act 1981, s.22)
(iii) the International Convention on Civil Liability for Oil Pol lution Damage 1992
(the Oil Pollution Convention) (the Merchant Shipping Act 1995, Part VI)
(iv)the International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage 1992 (the Fund Convention) (the Merchant
Shipping Act 1995, Part VI)
(v) the Rhine Navigation Convention 1868 (preserved by the Supreme Court Act
1981, s.23)
(vi)the Paris Convention on Third Party Liability in the Field of Nuclear Energy
1963. (See Nuclear Installations Act 1965.)
(vii) the United Nations Convention on Law of the Sea 1982. (See Merchant
Shipping Act 1995, s.129; Merchant Shipping (Prevention of Pollution) (Law of the Sea
Convention) Order 1996—see n. 11) (i) The Arrest Convention 1952
3.29 There is set out in the Convention a list of maritime claims for which a ship
may be arrested and the provision that arrest may be for no other claim. With an
exception for "domestic" arrest and possible national reservations the Convention
applies to any ship flying the flag of a Convention State. In addition it is provided that a
ship flying the flag of a non-contracting State may be arrested in the jurisdiction of a
contracting State, 50 and that "the court of the country in which the arrest is made has
jurisdiction to determine the case on its merits if the domestic law of the country in
which the arrest is made gives jurisdiction to such court" or in six specified
circumstances.51
3.30 The Convention provisions are not directly enacted into English law but the
basis of arrest is the jurisdiction in actions in rem set out in the Supreme Court Act
1981. The Arrest Convention as such does not therefore provide jurisdiction bases —
those remain provisions of the domestic law founded essentially on servic e of a claim
form or submission. 52 Although by the international obligation under the Arrest
Convention national law should be brought in line, on the one hand the 1981 Act does
not fully implement the Convention and, on the other, does not limit such implementation
as there is to the ambit of the Convention. There is no difference in English law whether
the parties are connected with contracting States. (ii) The Collision (Civil Jurisdiction)
Convention 1952
3.31 Articles 1, 2 and 3 provide:
"Article 1
(1) An action for collision occurring between seagoing vessels, or between
seagoing vessels and inland navigation craft, can only be introduced:
(a) either before the Court where the defendant has his habitual residence or a
place of business;
(b) or before the Court of the place where arrest has been effected of the defendant
ship or of any other ship belonging to the defendant which can be lawfully arrested, or
where arrest could have been effected and bail or other security has been furnished;
(c) or before the Court of the place of collision when the collision has occurred
within the limits of a port or in inland waters.
(2) It shall be for the plaintiff to d ecide in which of the Courts referred to in
paragraph 1 of this article the action shall be instituted.
(3) A claimant shall not be allowed to bring a further action against the same
defendant on the same facts in another jurisdiction, without discontinuing an action
already instituted.
Article 2
The provisions of Article 1 shall not in any way prejudice the right of the parties to
bring an action in respect of a collision before a Cou rt they have chosen by agreement
or to refer it to arbitration.
Article 3
(1) Counterclaims arising out of the same collision can be brought before the Court
having jurisdiction over the principal action in accordance with the provisions of
Article 1.
(2) In the event of there being several claimants, any claimant may bring his action
before the Court previously seized of an action against the same party arising out of the
same collision.
(3) In the case of a collision or collisions in which two or more vessels are
involved nothing in this Convention shall prevent any Court seized of an action by
reason of the provisions of this Convention, from exercising jurisdiction under its
national laws in further actions arising out of the same incident."
The Convention is not directly enacted but section 22 of the Supreme Court Act
1981 reflects the restrictive provisions of Article 1 in respect of actions in personam.53
There is no specific enactment of the arrest jurisdict ion of Article 1(1)(b). As with such
jurisdiction under the Arrest Convention that is left to the effect of the action in rem.
Neither the in personam nor the in rem jurisdiction is restricted to parties to the
Convention.
3.32 The jurisdiction base is therefore a matter of English law. 54 The Convention
jurisdiction base of arrest or security is changed in English law by the in rem process to
service of the in rem claim form. There is no difference in the application of the
jurisdiction base as between actions connected and actions not connected to contracting
States. The provisions of section 22 are not restricted to parties to the Convention. (iii)
The Oil Pollution Convention 1992
3.33 The Convention (as amended) applies to pollution damage caused in the
territory, territorial sea of a contracting State and the exclusive economic zone (or
equivalent area) of such a State and to preventative measures wherever taken to
minimise such damage.
3.34 Article IX(1) provides:
"Where an incident has caused pollution damage in the territory . . . of one or more
Contracting States55 or preventative measures have been taken to prevent or minimise
pollution damage in such a territory . . . actions for compensation may only be brought in
Courts of any such Contracting Sta te or States. Reasonable notice of any such action
shall be given to the defendant."
The Convention is not directly enacted into English law. 56 However, the restriction
on jurisdiction was reflected initially in relation to the 1969 Convention in section
13(4) of the Merchant Shipping (Oil Pollution) Act 1971 and is now reflected in the
Merchant Shipping Act 1995. 57 By those provisions an action may be brought under the
Act only if damage or preventative measures occur in "the territory of the United
Kingdom" (including the territorial sea and the area within fishery limits). If such
damage or measure has occurred a court may hear a claim not only in respect of that
damage or cost but any also occurring in the territory of another contracting State. 58 (iv)
The Fund Convention 1992
3.35 By the Convention actions against the Fund for compensation may be brought
only in a court competent under Article IX of the Liability Convention ( see 3.34) unless
that court is in a State not a party to the Fund Convention. In that event action may be
brought either in a State where the Fund has its headquarters or in a State party to the
Fund Convention and competent under the Liability Convention. There is no jurisdiction
base as such. The Fund Convention is not directly enac ted into English law but is
reflected in the Merchant Shipping Act 1995, Part VI. 59 There is no prerequisite for
jurisdiction as such in the Act but, save for jurisdiction depending on the Fund
Headquarters being in the United Kingdom, an action will lie only in respect of damage
(including preventative measures) in the United Kingdom. 60 The Fund Headquarters are
in London and while this is so an action may be brought in England against the Fund in
accordance with the Convention provisions. 61 The 2003 Protocol
3.36 As with the Fund Convention 1992 jurisdiction in respect of actions for
compensation is exclusively linked to that of the Liability Convention save where action
is brought before a court in a State not a party to the Protocol. In that event if such a
State is a party to either the Liability Convention or the Fund Convention but not the
Protocol, the claimants option is analogous to the 1992 Convention —either where the
Supplementary Fund has its headquarters or in a State party to the Protocol and
competent under the Liability Convention or Fund Convention as applicable. 62 (v) The
Rhine Navigation Convention 1868 (as amended)
3.37 The Convention is concerned, as its title implies, with navigation of the
Rhine. It contains some provisions conferring jurisdiction on the Tribunal for Rhine
Navigation. It is provided by section 23 of the Supreme Court Act 1981 that the High
Court has no jurisdiction in such matters ( see Chapter 12). The Convention was
denounced by the United Kingdom on 31 December 1993. (vi) The Paris Convention on
Third Party Liability in the Field of Nuclear Energy 1963
3.38 Jurisdiction is restricted to the place of the installation of the operator liable,
or where materials were being carried, the country in which they were at the time of the
nuclear incident or if either there is no such court or two such courts, that most closely
related to the case in question. 63 By section 17 of the Nuclear Installation Act 1965 the
jurisdiction of the courts is limited by the power of the relevant Minister to declare that
under an applicable international agreement jurisdiction lies with a court of another
State Party. (vii) The United Nations Convention on Law of the Sea 1982
3.39 There are provisions in a number of regulations reflecting the Convention. So,
for example, criminal proceedings for offences allegedly committed outside Unite d
Kingdom by a ship other than a United Kingdom ship are to be suspended on
proceedings being instituted in the Flag State. 64 3. Conventions in Force to Which the
United Kingdom Is Not Party
3.40 Such Conventions including jurisdiction provisions are the H amburg Rules
1978, the Vienna Convention on Third Party Liability in the Field of Nuclear Energy
1963, and, as yet, the Fund Protocol 2003. Care must be taken, therefore, in respect of
cases within the ambit of such Conventions if litigation is contemplated in State parties
thereto, or, even if litigating within the United Kingdom, if the law applicable to the
dispute is arguably that of a State party to the Convention. If the Convention is applied
as part of the applicable law it will dictate jurisdiction. 4. Generally Applicable
Jurisdiction Bases The European Jurisdiction Conventions and Regulation
3.41 These were initially contained in the Conventions on Jurisdiction and the
Recognition and Enforcement of Judgments in Civil and Commercial Matters 1968 of
the European Union (the "Brussels Convention") and 1988 of the European Community
and European Free Trade Association (the "Lugano Convention"). The 1968 Conventio n
is amended by accession treaties following the accession of each additional member
State. The Brussels Convention was given "the force of law" by the Civil Jurisdiction
and Judgments Act 1982 and the Lugano Convention by the Civil Jurisdiction and
Judgments Act 1991 amending the 1982 Act. The texts of the Conventions are set out in
Schedules to the Acts.
3.42 On 1 March 2002 Council Regulation 44/200 1 ("on jurisdiction and the
recognition of judgments in civil and commercial matters") came into force. 65 As
between the then member States save Denmark, this replaced the Brussels Convention.
The Regulation applies to and is binding on the ten States acceding to the Community on
1 May 2004 (see n. 66). The jurisdiction base of the Convention is, therefore, l argely
replaced by one dependent on European law. Legislative provision is made in English
law to reflect the Regulation and the continuing force of the Brussels Convention
through adaption of the Civil Jurisdiction and Judgments Act 1982. The substantive
provisions of the Regulation largely reflect the Convention with some amendments
introducing new Community concepts (as domicile of legal persons and the date on
which an action is "pending" ), extension of protection for consumers, and the
introduction of a more speedy and effective enforcement procedure.
3.43 The Brussels Convention continues in force as between Denmark and the
States members prior to 1 March 2004 and the relationship with the Lugano
Convention. 66 The ten States then acceding to the Union are under an obligation to
accede to conventions in the field of justice and home affairs drawn up by the Council
as "inseparable from the attainment of the objectives of the EU Treaty 67 Matters listed
as such do not appear to include the Brussels Convent ion,68 no doubt as it continues to
apply only as Denmark has opted out of aspects of Community law. The present parties
to the Brussels Convention do not include any of the newly acceded States. But, it may
be argued, that given the power to opt out and th e relevance of the Lugano Convention
(see n. 68) the Convention still reflects fundamental aspects of judicial co -operation.
3.44 The draft Regulation was proposed by the Commission in July 1999. 69 This
followed the report of an ad hoc working group and a proposal by the Commission in
1997 for a Council Act to approve an amended Convention and recommend member
States to adopt it. The transposition from a Convention to a Community instrument is
based on judicial co-operation in civil matters by the Treaty of Amsterdam forming part
of the substantive Treaty (Title IV, Act 62) and the recognition and enforcement of
decisions in civil and commercial cases specifically forming part of that co -operation
(see Article 65). As the jurisdiction of the European Court i n respect of the Regulation
now stems from the Treaty itself the Protocol regarding interpretation remains relevant
only insofar as there are derogations applicable to any member States. As Denmark,
Ireland and the United Kingdom are not bound by Title IV under the provisions of which
the Regulation was made, the Regulation depended on positive action indicating that
recognition.70
3.45 On 12 March 1999 Ireland and the United Kingdom announced to the Council
their intention of being "fully associated" with Community activities in relation to
judicial cooperation in civil matters. Following that declaration both are parties to the
Regulation.
3.46 Subject to specified judgments given after entry into force the Regulation
applies only to legal proceedings instituted and documents formally drawn up or
registered as authentic instruments (as to which see Chapter 28) after 1 March 2002.
Judgments given after that date in proceedings instituted prior to it are to be recognized
and enforced if jurisdiction was founded on rules according to the Regulation or the
Brussels Convention or a convention between the relevant adjudicating and enforcement
State in force at the institution of proceedings. The Lugano Convention
3.47 The Convention came into force in the United Kingdom on 1 May 1992. It
remains in force, the parties being the member States prior to 1 March 2004, Iceland,
Norway, Poland and Switzerland. 71 It is a Convention which the States acceding to the
Community on that date are obligated as against other member states to become parties.
Apart from minor differences the Brussels and Lugano Conventions differ only insofar
as the European Court of Justice has jurisdiction only as regards the Brussels
Convention—there being provisions in the Lugano Convention concerning uniform
interpretation and also the relationship of the two Conventions ( see Chapter 8). The
influence of Regulation 44/200 1 and the Brussels and Lugano Conventions
3.48 These instruments provide jurisdictional bases. As a consequence, as for a
"particular" jurisdiction base, in relation to matters within them the function of service
of a claim form is procedural only. Whereas, in respect of matters outside the
instruments, English law largely continues to see jurisdiction in such procedural terms,
within them the service simply implements procedurally the jurisdiction under them.
The service itself cannot create jurisdiction, but within the general structures fulfils the
procedural role left to the national laws.
3.49 The instruments have a wide scope. Subject to any restriction in relation to
non-contracting States, they will apply to all proceedings in a contracting State.
Depending on the nature of the proceedings, the issue and the connection (or lack of
connection) between the territories of the State parties and the defendant, the application
is one of three differing legal regimes:
(i) national law of the forum;
(ii) the Convention jurisdiction rules;
(iii)the rules of another Convention.
3.50 Because of the wide scope, parties and their advisers may no longer treat the
substantive jurisdictional base as an exception in English law but in each case the effect
of the Regulation and Conventions should be considered. The response may be simply
that the process focused on service of the claim form applies —but, apart from the
relatively few matters excluded from their scope it will do so only under t he terms of
the relevant instrument. The inclusion of proceedings connected with contracting States
emphasises that, while a principal jurisdictional base is domicile of the defendant it is
by no means exclusive.
3.51 Consideration will first be given to R egulation 44/200 1 and the Brussels
Convention (in Chapters 4 to 7). The Lugano Convention will be considered in Chapter
8 only as regards jurisdiction differences between that and the earlier Convention.
1. See The Canada Trust Co. v. Stolzenberg [1998] I.L.Pr. 30; [1997] EWCA Civ
1545 (C.A.).
2. Ibid.
3. Ibid. The court has power to order discovery in "jurisdiction" proceedings
(Bank of Credit and Commerce International SA v. Al Kaylani [1999] I.L.Pr. 278.
4. For restrictions on jurisdiction where it otherwise would be established or
exercised in relation to a defendant see generally Chapter 12.
5. See CPR Part 6(iii) 61.4.11. As to jurisdiction through service and the inclusion
within "England and Wales" of the Territorial Sea, Continental Shelf and other areas of
the sea see Chapters 9, 10.
6. But only if title is at issue. See Civil Jurisdiction and Judgments Act 1982, s.30.
The rule even as limited is inconsistent with the Brusse ls Convention, Pearce v. Ove
Arup Partnership Ltd [1999] 1 All E.R. 769 (C.A.)—a case considering the extent to
which the non-justiciability principle applies to intellectual property. For discussion
see [1999] LMCLQ 360 (Harris).
7. Mackinnon v. Donaldson Lufkin and Jenrette Securities Ltd [1986] 1 All E.R.
653 (order under Bankers’ Books Evidence Act 1879 against a bank not a party to
proceedings). Rome v. Punjab National Bank, The Times , 14 July 1988 (power to
order discovery where jurisdiction challenged). As to the power (and its exercise) to
order a party not to commence or continue foreign proceedings or in respect of foreign
arbitrations, see Chapters 12, 25.
8. See Chapter 12.
9. For a list of current parties to maritime Conventions see The Ratification of
Maritime Conventions, Institute of Maritime Law, University of Southampton (Lloyd’s
of London Press) (looseleaf).
10. Although it was argued that an action in rem fell outside the Brussels
Convention 1968 (see Chapter 4).
11. There may be an obligation not to act inconsistently with it unless there is a
contrary domestic policy or law. See Ahmed and Patel v. Secretary of State for the
Home Dept. [1998] INLR 570. Conventions may simply be reflected in legislation. See
e.g. the Merchant Shipping (Tonnage) Regulations 1997 (SI 1997/1570) made under the
general authority of the 1995 Act, s.19.
12. As extended by the Merchant Shipping (Prevention of Pollution) (Drilling Rigs
and Other Platforms) Order 2005 (SI 2005/74) made under power to apply shipping
provisions to things used on water (Railway and Transport Safety Act 2003, s.112). As
e.g. (i) International Convention on Pollution Preparedness Res ponse and Cooperation
1990—given effect to by Order (SI 1997/2567). Such an Order may authorise the
making of regulations and other instruments and may provide for the delegation of
functions exercisable by virtue of the Order (s.128(4)(6) of the 1995 Act) . For
regulations made under SI 1997/2567 see SI 1998/1056. (ii) International Convention
for the Safety of Life At Sea 1974 (SOLAS) (as it relates to control of pollution) MS
(Control of Pollution) (SOLAS) Order 1998 (SI 1998/1500), A rt. 2. For regulations see
MS (High Speed Craft) Regs 2004 (SI 2004/3 02). (iii) UN Convention on the Law of
the Sea 1982 as regards protection against pollution —given effect to by Order (SI
1996/282). For regulations made under the Order see e.g. MS (Prev ention of Pollution)
Regulations (SI 1996/2154 as amended by SIs 2004/303, 2110). As to the current (and
increasing) practice of the use of Merchant Shipping Notices to set out information and
obligations by such delegated legislation see Gaskell notes to Merchant Shipping and
Maritime Security Act 1997 (c. 28) 1997 Current Law Statutes (28 -7–9).
13. Sections 157(2), 176(5), SI 2003/259.
14. As amended by the Merchant Shipping and Maritime Security Act 1997. See
e.g. (i) many statutory instruments implementing SOLAS Protocols and amendments —as
e.g. MS (Life Saving Appliances, etc.) Regulations 1999 (SI 1999/2721); MS
(Additional Safety Measures for Bulk Carriers) Regulations 1999 (SI 1999/1644); MS
(Cargo Ship Construction) Regulations 1997; MS (Survey and Certification)
Regulations 1995 (SI 1995/1200) (as amended); MS (Carriage of Cargoes) Regulations
1999 (SI 1999/336); MS (Minimum Standards of Safety Communications) Regulations
1997 (SI 1997/529 amended by SI 19 99/1704, 2004/1266); and (ii) applying the
International Convention on Load Lines 1966 (SI 1998/2241).
15. The 1995 Act being amended concerning the Convention by the Merchant
Shipping and Maritime Security Act 1997, s.14, Sch. 3.
16. MS (Convention on Limitation of Liability for Maritime Claims) (Amendment)
Order 1998 (SI 1998/1258 amended by SI 2004/1273 (n. 146)).
17. 1995 Act, Sch. 7, Pt. II, para. 8(1). MS (Liability of Shipowner and Others)
(Rate of Interest) Order 1999 (SI 1999/ 1922) amended by SI 2004/931.
18. The MS (Convention on Limitation of Liability for Maritime Claims)
(Amendment) Order 2004 (SI 2004/1273) Art. 2.
19. As e.g. Protection of Wrecks (RMS Titanic) Order 2003 (SI 2003/2496).
20. As e.g. MS (Distress Message) Regulations 1998 (SI 1998/1691) replacing
some provisions of s.93 of the 1995 Act (duty to assist ships in distress); MS (Load
Line) Regulations 1998 (SI 1998/2241) replacing s.89, Sch. 3 of the 1995 Act.
21. Since the coming into force of the Conventio n the extension of the EU means
that the only non-EU members are Iceland, Norway and Switzerland.
22. See SI 1998/224.
23. See e.g. Merchant Shipping (Minimum Standards) Convention (No. 147) (SI
1997/2962; 1999/2205); Conventions No. 92, 133 (SI 1997/508).
24. By European Economic Area Act 1993 to include implementation of
obligations of the UK under the European Economic Area Agreement (as to which see
below).
25. See e.g. characteristics of fishing boats Reg. 2930/86 (SI 1998/1915; 1916),
(health and safety on vessels) Directive 93/103 (SI 1998/927), 89/656, (SI 1999/2205),
90/269 (SI 1998/2857), 89/391, 91/383, 92/85 (SI 1997/2862) (stability of ro –ro
passenger ships) Directive 2003/25 (SI 200 4/2884) (amending Directives on maritime
safety and prevention of pollution from ships) Directive 2002/84 (SI 2004/1266). As to
Insurance Directives and their implementation particularly as to governing law see
Chapter 26.
26. As e.g. nationality conditions for operators or owners for the registration of
ships (see R. v. Secretary of State for Transport, ex p. Factortame C221/89 [1991] 3
All E.R. 769 (ECJ) Commission v. Netherlands, C-299/02 14 October 2004; cargo
Commission v. France C334/94 ECJ 7 March 1996; arrangements between Member
States Commission v. Belgium and Luxembourg ECJ 11 June 1998; Commission v.
Ireland C191/96 12 June 1997; Ciola v. Land Vorarlberg C224/97 29 April 1999. See
also Reg. 405 5/86 applying freedom to provi de services to maritime transport (as to the
scope of which see Corsica Ferries SA v. Gruppo Antichi Ormeggiatori del Porto
Geneva C266/96 ECJ 18 June 1998.
27. See e.g. Francovich v. Italian State C6 and 9/90 [1991] 3 CMLR 66 (ECJ); R.
v. Secretary of State, ex p. Factortame C48/93 [1996] All E.R. (EC 301) (ECJ) [1999]
4 All E.R. 907 (H.L.). National law may provide for reasonable time limits for loss or
recovery of charges paid contrary to a directly applicable instrument which do not
render the exercise of Community rights excessively difficult. See Palmisani v. INPS
Case 261/95, [1997] ECR 1-4025 (ECJ); Aprile SRL v. Ammistrazione Delle Finanze
Dello Stato (No. 2) Case 228/96 [2000] 1 W.L.R. 126 (ECJ).
28. Articles 61c, 65. The “opt out” and methods of involvement in matters within
Title IV are set out in Protocols.
29. As from 1 May 2004 the regulation applies with adaptations to the ten States
acceding to the Union on that date. (See Treaty of Accession, Art. 2, Act of Accession,
Art. 2, Annex 2, para. 3 (OJ L236/1). The EU is considering a new Lugano Convention
(see 3.9) to match the Regulation (see Chapter 8).
30. Other regulations provide for insolvency proceedings (excluded from Reg.
44/200 1), including provisions relating to juri sdiction and applicable law (Reg.
1346/2000) and cooperation in the taking of evidence in civil and commercial matters
(Reg. 1206/2001).
31. Decisions of (i) 19 September 2002 (2002/762) authorising and urging member
States to ratify Convention on Civil Liability for Bunker Oil Damage (OJ L256/7) and
of 18 November 2002 (SI 2002/97 1) the HNS Convention (OJ L337/55); (ii) 2 March
2004 (SI 2004/246) obligating Member States to ratify Protocol of 2003 to the Oil
Pollution Fund Convention (OJ L 78/22). As to the Athens Convention see 3 -14B. For
discussion of these Conventions see 5.12.
32. I.e. The Athens Convention Relating to the Carriage of Passengers and Their
Luggage by Sea 1974 (Art 19). This is the first IMO Conven tion to include such a
clause. As to the Convention and Protocol and its jurisdictional effect see 3.19. A
proposal that such a clause be added to the Bunker Pollution Convention 2001 was
rejected because it was submitted late. See Tzimplis [2005] LMCLQ at p. 98.
33. See COM (203) 375 transmitted to the European Parliament and Council on 24
June 2003.
34. Ibid. Other proposals as to dispute resolution by the Commission are for a
Regulation creating a European enforcement order for judgments on uncontested claims
((2002) 159) see now Reg 815/2004 and a Directive for the promotion of mediation in
the settling of disputes (2004/0251/COD).
35. It was amended in 1976 to make the unit of account the special drawing right. A
protocol of 1990 to provide for greater compensation and to establish a simplified
procedure for updating limitation amounts. The 1990 Protocol has never come into force
and is superseded by the 2002 Protocol ( see 3.24).
36. The Convention does not modify the rights and duties under Conventions
relating to limitation of liability of shipowners (i.e. global limitation) (Art. 19). As to
limitation of the liability see Chapter 24. For current limitation amounts see also SI
1998/29 17. As to the parties see The Ratification of Maritime Conventions (fn. 6).
37. Art. 2.
38. Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order
1987 (SI 1987/670). As to the power to extend see Merchant Shipping Act 1995, s.184.
39. Entry into force 12 months after 10 States become parties. As to the position of
the EU and its member States particularly given the jurisdiction provisions, see 3.1 4B.
40. Article 2(2)—see 3.21.
41. Article 4bis. As to defences and the right of the defendant to require the carrier
and performing carrier to be joined in the proceedings see Arts 4. bis 10.
42. Article 17(2). The former 17(2) ( see 3.19) becomes 17.3.
43. Carriage of Goods by Road Act 1965, Sch., Art. 1. There is a prohibition
against parties entering inconsistent Con ventions between them save in respect of
frontier traffic or transport operation entirely confined to the territory of the states (Art.
1(5)). As to the CMR see Clarke, International Carriage of Goods by Road (3rd edn),
Sweet & Maxwell, 1997.
44. Article 2. This applies if the carrier by road is also the carrier by sea, liability
being determined as if the carrier were two separate persons (Art. 10(2)).
45. A judgment in proceedings within Art. 3 1(1) when enforceable in the
contracting State in which it is given is also enforceable in other contracting States —
subject only to formalities required by that state. The case may not be reopened (Art.
3 1(3)). As to recognition of foreign judgments see Chapters 27, 28.
46. [1983] A.C. 565; [1983] 1 Lloyd’s Rep . 1.
48. The text of the Convention relating to the Carriage of Hazardous and Noxious
Substances by Sea 1996 (the HNS Convention 1996) is contained in Sch. 5A of the
Merchant Shipping Act 1995 (as amended) and the provisions may be brought into force
by Order in Council. As to Conventions limiting the jurisdiction to determine wage
claims in relation to foreign ships see Chapter 12.
49. Replacing the Administration of Justice Act 1956, ss.1–8. As to jurisdiction in
rem generally and the role of arrest in English law, see Chapters 10, 15. As to the
possible incorporation of substantive jurisdiction based on arrest (Art. 7) through the
Brussels Convention, see Chapters 10, 12. As to the International Convention on the
Arrest of Ships 1999, see Chapter 15.
50. Articles 1, 8(1)(2). A contracting State may exclude from the benefits of the
Convention any government of a non -contracting State or any person whose habitual
residence or principal place of business is not in a contracting State (Art. 8(3)). Nothing
in the Convention affects the domestic law of a state relating to the arrest of an y ship
within her flag State by a person whose habitual place of residence or principal place
of business is in that state (Art. 8(4)).
51. Article 7(1).
52. As to the effect of “ submission” in an action in rem, see Chapters 9, 10. As to
the possible incorporation of Art. 7 into United Kingdom laws through the Brussels
Convention see Chapters 10, 12.
53. See Appendix 1. The provision for arbitration is reflected in the Arbitration
Act 1996—relating generally to stay of proceedings on the basis of an arbitration clause
(see Chapter 13). As to the claims within s.22 as defined in that provision see Chapters
9, 12.
54. It would seem that, given the Convention provisions, permission to serve out of
England is not required. See the analysis of RSC Ord. 11, r. 1 (2)(b) (in much the same
terms as CPR 6.19(2)) in Re Harrods (No. 2) [1991] 4 All E.R. 348 and Chapter 9.
55. The “ territory” includes the territorial sea or other area connected to the
state to which the Convention applies.
56. There is power to apply the provisions of Conventions relating to oil pollution
from ships to drilling rigs and other platforms used on water part of English law once
ratified by the United Kingdom, Merchant Shipping Act 1995, s.128, Railway and
Transport Safety Act 2003, s.112, MS (Prevention of Pollution) (Drilling Rigs and
Other Platforms) Order 2005 (SI 2005/74). Such powers in relation to ships were
initially provided in Merchant Shipping Act 1979, ss.20, 20A). As to orders made
under the powers see e.g. MS (Prevention of Oil Pollution) Order 1983 (SI 1983/1106)
amended by SI 1985/2002, SI 1991/2885, SI 1993/1580.
57. See ss.166(2), 170.
58. Ibid. A similar but not so restricted territorial limitation applies to liability for
damage caused through nuclear matter, see the Nuclear Installations Act 1965, s.13 ( see
infra). The HNS Convention (see Sch. 5A of the Merchant Shipping Act 1995) contains
a similar provision with the addition of jurisdiction in relation to damage outside the
territory of a State dependent on registration, habitual residence of the owner or the
State in which a limitation fund has been constituted (Art. 36). As to the Convention and
its status see Chapter 6.
59. Applying with adaptation amendments of the 1 974 Act set out in Merchant
Shipping Act 1988, Sch. 4, Pt. II (see s.5 of the 1994 Act). Under the HNS Convention
(see fn. 41) jurisdiction in respect of claims against the HNS fund is in the court having
jurisdiction in respect of claims against the owner (Art. 39(1)(2)). As to the Convention
and its status see Chapter 6.
60. Section 175(1)(2). Or save where either has occurred in both the UK and
another Fund Convention country and liability proceedings brought in a non -Fund
Convention country or in the UK (s.175(2)(b)).
61. Section 175(2)(a).
62. See Article 7. As to status see Chapter 6.
63. Article 13, the latter to be determined by a Tribunal under the Convention. As
to nuclear damage see Chapter 2.
64. See e.g. MS (Dangerous or Noxious Liquid Substances in Bulk) Regulations
1996 (SI 1996/3010), Art. 17; MS (Prevention of Oil Pollution) Regulations 1996, (SI
1996/2 154) and, see the Fund Protocol 2003, Art. 38.
65. Corrected by adding Conventions overrid den (OJ L 307/28 of 12 January
2001; amended as to rules and courts of national jurisdictions by Commission
Regulations 1496/2002, 1937/2004, 2245/2004.
66. See 1.33. The Convention also applies to territories of member States excluded
from Community legislation under Art. 299 of the Treaty of Rome ( see Regulation
Preamble, para. 23).
67. Act of Accession Art. 4.
68. See Commission Document 10637/0 1, unlike the Rome Convention on the law
applicable to contractual matters ( see Chapter 26) and the Lugano Convention.
Regulation 44/200 1 is listed as an instrument adopted under the Treaty of the Economic
Community.
69. COM (1999) 348 final 14.07.99.
70. See Protocols on the Position of (i) the United Kingdom and Ireland and (ii)
Denmark. On 12 March 1999 the UK and Ireland announced to the Council their
intention of being "fully associated" with Community activities in relation to judicial
co-operation in civil matters.
71. Apart from Poland all were original parties. The accessi on of Poland is
implemented in UK laws by amendment of s.1(3) of the 1982 Act as amended by the
1991 Act (SI 2000/1824).
Chapter 4
The Jurisdiction and Judgment Regulation and Convention—Boundaries and

Structure 1. The General Pattern The Regulation and Convention on Jurisdiction
and Judgments
4.1 Regulation 44/200 1 came into force on 1 March 2002. It does not apply to
Denmark nor to territories of the Member States within the territorial scope of the
Convention but excluded from the Treaty of Rome. So although narrow in its field of
operation the Brussels Convention remains relevant. It also remains relevant first, as the
Regulation only applies to proceedings instituted since 1 March 2002 and secondly , in
interpretation where the provisions are identical with or similar to the Convention. Also
relevant to interpretation are decisions of national courts on the Lugano Convention, for
that Convention is in most aspects identical with the Brussels Conventi on. From
Convention to Regulation
4.2 The judgments structure of the Regulation mirrors that of the Convention, being
built on its jurisdictional foundation. The basic principle is that jurisdictional enquiry is
a matter for the adjudicating court, the jud gment of which, with few exceptions, should
be recognised and enforced without further enquiry. In this respect the Convention
differs from the pattern of bilateral judgment conventions which make recognition or
enforcement dependent on the enforcement court being satisfied that the adjudicating
court had jurisdiction.
4.3 Further, the duty to recognise and enforce judgments is not limited to judgments
based on Convention jurisdiction. It encompasses both judgments in proc eedings outside
and within the jurisdiction provisions and to an extent those within those provisions but
resulting from proceedings not complying with them. The Convention necessarily
imposes duties on contracting States not to exercise jurisdiction in an y suit save in
accordance with the Convention framework. However, the grounds of refusal to
recognise or enforce judgments are specific, thereby necessarily implying that, apart
from these grounds, the Convention requires recognition and enforcement of a j udgment
even if that judgment is obtained in proceedings brought contrary to the jurisdiction
provisions. The judgment provisions are considered in Chapter 28.
4.4 The proposal by the Commission that following the Treaty of Amsterdam the
Brussels Convention be replaced by a Regulation potentially created problems of
structure because that part of the amended Treaty of Rome (Title IV) is not binding on
and does not affect Denmark, Ireland and the United Kingdom ( see Chapter 3).
However, the latter two states indicated their intention generally to participate in the
adoption and application of measures of judicial co -operation in civil and commercial
matters and have consistently done so. 1 They have adopted and are bound by the
Regulation (see Chapter 3). Connections with the Community
4.5 The preamble to the Convention makes clear it is concerned to "strengthen the
legal protection" of persons established in the Community and for this purpose "to
determine the international jurisdiction" of the courts of Membe r States, "to facilitate,
recognise and introduce an expeditious procedure for the enforcement of judgments,
authentic instruments and settlements".
4.6 So a mandatory factor for the applicability of the Convention and the
Regulation is the link between the Community and the relevant issue. 2 It follows that
neither has any application to any dispute wholly connected solely to one contracting
State but on the other hand is not restricted to matters between parties wholly connected
to contracting States. In t he context of jurisdiction a primary connection is the
"domicile" of the defendant in a contracting State. Care must be taken, however, that
such domicile is not seen as the exclusive connecting factor either for the Convention or
Regulation to apply or, when applicable, for jurisdiction to be allocated to the state of
that domicile.
4.7 However, unless specified otherwise the domicile of the defendant forms the
connecting link. On a somewhat surprising reference from the Cour d’Appel Versailles,
the European Court affirmed that generally the Convention jurisdiction framework can
be relied on against a plaintiff not domiciled in the Community. 3
4.8 Being a Community legislative act the Regulation is authoritative in all of the
20 Official languages of the Community. Its interpretation is for the European Court of
Justice. Interpretation of the Regulation and Convention
4.9 By virtue of the Protocol of 1971 (as amended) the primary authority for the
interpretation of the Convention is the European Court of Justice. Preliminary rulings
may be requested by any court specified in Article 2 of the Protocol. 4 In the United
Kingdom it is by the House of Lords, any court sitting in an appellate capacity or save in
the question of maintenance in the case of an appeal against a decision against
enforcement of a judgment by the High Court. 5
4.10 By section 3 of the Act (as amended) the Convention must be interpreted in
the light of decisions and expressions of the Euro pean Court6 and specific reference is
made in the Act to Council Reports on the Convention and Protocol. These Reports may
be taken into account by United Kingdom courts in ascertaining the meaning or effect of
the Convention or Protocol (section 3). 7
4.11 By Article 2348 of the amended Treaty of Rome the European Court of Justice
has power to give preliminary rulings as to ( inter alia) "the validity and interpretation
of acts of the institutions of the Community". Such a matter may be referred under that
article by any court or tribunal of a Member State if raised before it and a decision is
necessary to enable it to give a judgment. 9 Where there is no further judicial remedy the
court "shall" bring the matter before the Court (i.e. save for any restricted jurisdiction in
the House of Lords)
4.12 However, by Article 68 of the amended Treaty the power to refer by a court
under Article 234 is limited to the mandatory provision and the court in respect of and
in regard to which there is no further remedy. As a consequence reference will require
even more persistence particularly in the context of the doctrine of precedent in English
law. 10 The Role of National Laws
4.13 Save for specified categories of case, the issue of jurisdiction in all
proceedings within the ambit of the Regulation or Convention where the defendant is not
domiciled in a contracting State are referred to the law of the forum. On the other hand
where the Convention jurisdiction regime applies, the European Court consistently held
that the Convention is based primarily on Community concepts (as, for example, the
meaning of "lis pendens" in respect of Articles 21, 22, in Article 5 the meaning of the
"place where the harmful event occurs", in Article 20 service of a document instituting
proceedings in sufficient time to arrange for a defence and the bases of exclusive
jurisdiction in Article 16). That approach is accentuated under the Regulation.
4.14 However, in the context of the Convention regime national law plays a part,
with questions of domicile of a natural person or seat of a legal person being referred to
national law (Articles 52 and 53). 11 Further the court declared that some matters are for
national law (for example, whether a court is "seised" of a cause of action within
Article 21 and the "place of performance of a Contract" within Article 5(1)). The issues
are discussed in the particular contexts.
4.15 Under the Regulation more concepts become those of the Community rather
than left to national law (as domicile of a legal pe rson and "seised") and to avoid issues
of conflict of laws place of performance in two specific contexts is defined —sale of
goods and provision of services. Relationship with Other Conventions The
Convention
4.16 It is sought to fit the Convention with other instruments with which there may
be an overlap by:
(a) as regards service of documents specifically giving priority where a defendant
has not appeared to Article 15 of the Hague Convention on the Service Abro ad of
Judicial and Extra Judicial Documents in Civil or Commercial Matters 1965 (Article
20) or any other applicable Convention on service generally (Annexed Protocol Article
IV);
(b) in a specified context permitting contracting States to enter into Con ventions
undertaking obligations with a third state inconsistent with the Convention in respect of
recognition and enforcement of judgments (Article 59);
(c) save for judgments prior to the Convention superseding specific listed
Conventions (Article 55);
(d) maintaining Conventions inconsistent with the 1968 Convention: as to
Conventions and acts of the Community "on particular matters" governing jurisdiction or
judgments (Article 57). The Regulation
4.17 The pattern is similar to the Convention. Howeve r, as was to be expected that
there will be less ability to enter into inconsistent obligations or procedures. On the
other hand the Regulation itself is part of the structure of European law and must be seen
to fit with other legislative acts. Matters on which it is provided in the Regulation for a
different governing instrument are identical with the Convention. So as to (a) –(d)
above:
(a) Service of documents generally (including where a defendant does not appear)
is, as from 31 May 2001 governed as regards Member States save Denmark by Council
Regulation 1348/2000. Where that Regulation does not apply Article 15 of the Hague
Convention continues to govern (Article 26).
(b) The permission is restricted to obligations entered into before the Regulation
came into force (Article 72).
(c) The Conventions superseded and the limits of continued effect are listed in
Articles 69, 70.
(d) The Regulation is subject to other Community acts on specific matters (Article
67) but Conventions maintained are limited to those on particular matters entered into
prior to 1 March 2002 (Article 71). 12 Application within the United Kingdom
4.18 For the purposes of the Regulation and Convention the United Kingdom is one
state but for intra United Kingdom purposes it consists of three constituent parts —
England and Wales, Scotland and Northern Ireland (see section 50 of the 1982 Act). For
internal United Kingdom purposes Regulation and Convention jurisdiction must be
linked to a part of the United Kingdom. This link is provided as to the Convention by the
1982 Act, sections 41–45, and as to the Regulation by the Civil Jurisdiction and
Judgments Order 2001 (hereafter the 2001 Order).
4.19 The Regulation and Convention itself provides in certain circumstances for
jurisdiction in courts of a "place" in a Member State, that place being a place in the
state in which the defendant is domiciled (as defined by national law) or the place of a
thing or event. In such cases clearly jurisdiction is bestowed geographically precisely
and, insofar as this has a jurisdictional connotation, within a state jurisdictionally
precisely. In English law for the purposes of the Regulation and Convention an
individual is domiciled in a particular place in the United Kingdom only if domiciled in
the part of the United Kingdom where the place is and he is resident in that place. 13
Under the Convention a similar provision is made for corporati ons—requiring its
registered office, central management or place of business to be in the part. 14 In English
law also a trust can be domiciled in the United Kingdom only if it is domiciled in a
part.15 Under the Regulation the domicile of a corporation is linked with a particular
place but that of trusts left as before to national law. 16
4.20 Where the Regulation or Convention confers jurisdiction simply on courts of a
contracting State (as, for example, in Article 2, the basic jurisdiction principle of the
defendant’s domicile) it is necessary that that jurisdiction be allocated within the United
Kingdom. This is accomplished by express provision in the 1982 Act 17 and 2001
Order.18 It is further applied by the Act to intra United Kingdom disputes which, lying
within one contracting State, are outside the Convention ( see infra and Chapter 7).
Application to Other United Kingdom Territories
4.21 The Regulation as adapted is binding on the ten States acceding on 1 March
2004.19 As European law it applies to Gibraltar 20 but not to the Sovereign Base Areas
in Cyprus21 nor to the Channel Islands or Isle of Man. 22 Provisions may be made
corresponding to the Convention as between the United Kingdom and the Isle of Man,
the Channel Islands or any colony. Such provisions are to be made under section 39 of
the 1982 Act by Order in Council, and have been made in relation to Gibraltar. 23 2. The
Applicability of the Regulation or Convention
4.22 The Regulation or Convention applies to proceedings instituted after its entry
into force in the state or states concerned 24:
(1) when the subject-matter of the case is within it; and
(2) subject to the arguable exclusion of issues connected with a non -contracting
State and powers relating to abuse of process, to any proceedings within the Convention
or judgments in a contracting State on an issue not wholly connected with that state.
However, the consequence of a case falling within either the Regulation or
Convention will vary according to whether the issue is:
(i) referred to the forum; or
(ii) referred to another Convention; or
(iii)the Convention jurisdiction structure applies.
These varying consequences are discussed as regards initial jurisdiction in
Chapters 5, 6 and as regards multiple jurisdiction (i.e. lis pendens) in Chapter 12. 1.
The Subject-Matter—"Civil or Commercial Matters"
4.23 Article 1 of the Regulation and Conven tion is in precisely the same terms.
Interpretation under the Convention is clearly applicable to the Regulation.
"This Convention shall apply in civil and commercial matters whatever the nature
of the court or tribunal. It shall not extend, in particular, to revenue, customs or
administrative matters."
The Convention shall not apply to:
(1) the status or legal capacity of natural persons, rights in property arising out of a
matrimonial relationship, wills and succession;
(2) bankruptcy, proceedings relating to the winding -up of insolvent companies or
other legal persons, judicial arrangements, compositions and analogous proceedings;
(3) social security;
(4) arbitration. The general definition
4.24 There is no definition of the phrase "civil and commercial matters", but it has
been settled by the European Court that the question of "civil and commercial matters"
must be given an autonomous meaning given the objectives of the Convention (and
clearly now the Regulation). In LTV GmbH & Company KG v. Eurocontrol25 the Court
said:
"By providing that the Convention shall apply ‘whatever the nature of the Court or
Tribunal’ Art 1 shows that the concept ‘civil and Commercial matters’ cannot be
interpreted solely in the light of the division of jurisdiction between the various types of
courts existing in certain states. The concept in question must therefore be regarded as
independent and must be interpreted by reference, first, to the objectives and scheme of
the Convention and, secondly, to the general principles which stem from the corpus of
the national legal systems."
4.25 The Court held that "a judgment given in an action between a public authority
and a person governed by private law in which the public authority has acted in the
exercise of its powers is excluded from the area of application of the Convention". In
essence the boundary is drawn between private law and public law, the exclusion of the
latter being underlined by the express reference to "revenue, ad ministrative and customs
matters".26 In State of Netherlands v. Ruffer27 the Court held that proceedings brought
for redress for wreck removal by a public authority was not within the Convention. In
this case the state was acting in the exercise of its pub lic authority powers rather than as
a commercial entity. In contrast the acts of a public authority acting under civil law
rather than a prerogative stemming from its public powers are within the Convention. 28It
is settled that employment issues (whether the employment is by public or private
authority provided the public authority is being sued as employer) are within the
Convention.29 The specific exclusions
4.26 The specific exclusions may cause problems of overlap. An issue of legal
capacity could arise as part of a contractual dispute and enforcement of a maritime
claim could involve bankruptcy. As a matter of practice it would presumably be
necessary to classify a particular action by its primary characteristics to avoid differing
jurisdictional rules applied to different particles of the same dispute. Of the matters
excluded bankruptcy and arbitration are relevant to maritime claims: Bankruptcy 30
4.27 In Gourdain v. Nadler 31 the European Court of Justice held that for
proceedings to be excluded on the grounds of bankruptcy "they must derive directly
from the bankruptcy or winding up" and must be based on the national law relating to
bankruptcy or winding up. So to be excluded bankruptcy must be the principal subject
matter of the proceedings. An action by a trustee in bankruptcy to recover debts of an
insolvent company arising before the bankruptcy proceeding or for an order for sale of
the bankrupt’s property is therefore within the Convention. 32 Arbitration
4.28 The exclusion of arbitration raises particular problems. It would seem clear
that the Convention does not apply to proceedings to enforce, or set aside, an award or
decision incorporating an award or to any matter concerned with the conduct of
arbitration proceedings.33 However, a jurisdiction issue may well turn on the validity of
an arbitration agreement, and whether any judgment that it will or will not apply must be
recognised under the Convention, or whether a judgment in proceedings brought
contrary to an arbitration clause must be enforced under the Convention. The recognition
or enforcement of such judgments is considered in Chapter 28.
The validity of an arbitration agreement
4.29 In Marc Rich and Co. AG (a Swiss Corporation) v. Societe Italiana Impianti
PA (an Italian Corporation) 34 the European Court held that, given the existing
comprehensive international arbitration Convention framework 35 it was intended to
exclude from the Brussels Convention "arbitration in its entirety including proceedings
brought before national Courts". "More particularly" the appointment of an arbitrator
was part of the process setting arbitration in motion —it was excluded. As to validity of
the arbitration clause, as the "dispute" (i.e. the appointment of the arbitrator) fell outside
the Convention "the existence of a preliminary issue which the Court must resolve ...
cannot justify application of the Convention". The Court concluded that the exclusion
extends "to litigation ... concerning the appointment of an arbitrator even if the existence
or validity of an arbitration agreement is a preliminary issue in that litigation". Whether
the Convention applies to the validity of an arbitration clause when that matter is the
sole or principal issue in the proceedings was theref ore not decided.
4.30 In 2004 in the Court of Appeal the issue arose in the context of a declaration
that the claim was subject to an English arbitration clause and seeking an anti suit
injunction commenced against proceedings in a foreign court in Finland contrary to it.
As proceedings had been commenced in Finland the English court was second seised
and it agreed that if the claim before it was within the Convention it would have no
jurisdiction to consider it or to issue the injunction. However, applying the criterion of
"the principal focus of the proceedings 36 "it thought that both claims were outside the
Convention". 37 It seems undeniable that the claim for the declaration is within the
exception,38 but the court’s view that it could decide whether the Convention applied
despite being second seised, and (b) could grant an anti suit injunction in respect of
proceeding in a Member State raises critical issues as to the English courts’ approach to
the Convention and Regulation struc ture (as to which see Chapters 4, 12). 2.
Proceedings to Which the Regulation or Convention Applies
4.31 Jurisdiction in one case may be both within and outside the Regulation or
Convention. So there may be multiple parties, some of whom are subject to eit her39 or it
may be that one or the other will apply depending on which party is the plaintiff. 40 This
is the inevitable result of a non -universal regime. Proceedings falling outside the
Convention
4.32 Proceedings are excluded from the Convention because of express provision
or underlying purpose. 41 (i) Cases having no foreign element
4.33 The preamble to the Convention refers to the "international jurisdiction" of the
courts of contracting States. 42 It is arguable therefore that the Convention has no part to
play where there are links only to one Member State. The central feature of the
Regulation is not "international jurisdiction" but the appropriate jurisdictional link. So a
matter would be for any particular State because of that link and not because of any
exclusion from the Regulation. The United Kingdom is one state for both the Convention
and Regulation. However, the Convention was and the Regulation is adapted by United
Kingdom laws to allocate jurisdiction as between the different parts of the United
Kingdom.43 (ii) Proceedings in which a defendant is not “sued”
A suit without a defendant
4.34 The Regulation and Convention are focused on the state in which a person
shall be sued. If therefore the proceedings are not aimed at a "person" (i.e. a defendant)
they fall outside the Convention. This was the foundation of the argument before the
Court of Appeal in 1989 in The Deichland that an action in rem was not within the
Convention—the argument being rejected on the basis that in that type of action there is
a defendant (see Chapters 2, 10). It is conceptually possible that, for example,
proceedings to establish limitation of liability would not involve a person being sued,
but a declaration in regard to any possible claimant. It is certain, however, that in
English law a limitation plea whether by defence, counterclaim or through a limitation
action will involve a defendant ( see Chapter 24). The same principles apply to the
Regulation.
Ancillary orders made in proceedings
4.35 The Court of Appeal held that the making of orders ancillary to substantive
proceedings is not "suing" as contemplated by the Convention. This includes not only a
defendant in the substantive proceedings but an order for costs sought against a non -
party because of participation in or responsibility for bringing the proceedings. 44 It
would seem with respect a rather strict construction of "sue" to exclude a remedy of
whatever kind from a person not before the court. The alternative view of the court that
in any event the question fell within "third party proceedings" seems preferable. 45 (iii)
"Multiple proceedings" as between courts of contracting and non -contracting States
4.36 By Article 2 of the Convention, subject to other Convention provisions, a
defendant domiciled in a contracting State "shall be" sued in the courts of that state. In
Re Harrods (Buenos Aires) Ltd 46 the Court of Appeal, emphasizing that the underl ying
purpose of the Convention was to create a legal system for the Community, held that this
was not comprehensively mandatory in that it did not affect the power to consider if a
forum of a non-contracting State was more appropriate (i.e. the principle o f forum non
conveniens).47 The Convention, said the court, was not concerned with the jurisdiction
of non-Convention states. But it is concerned with the jurisdiction of contracting States
and, it may be argued, seeks uniformity in jur isdictional bases—and so the European
Court has held.
4.37 Although Re Harrods was relatively early in the application of the
Convention, it was consistently followed by English courts despite the undoubtedly
arguable inconsistency of forum non conveniens with the Convention structure. The
issue has never been pronounced on by the House of Lords. It reached the European
Court only in Owusu v. Jackson being referred by the Court of Appeal in 2002. 48 The
European Court49 stressed the need for an international element for the Convention to
apply. The basis on which the Convention was concluded (facilitation of the internal
market) meant that consolidation of rules concerning jurisdiction and recognition of
judgments was intended "to remove obstacles to the func tioning of the internal market
which may derive from disparities between national legislations . . . ". So the
Convention applied to cases involving a member and a non -member State. Further, there
was no room for forum non conveniens in a system in which many states did not
recognise it and would undermine the predictability of jurisdiction where a defendant
may be sued50 (see Chapter 12). So as was perhaps itself predictable there is no room
for national law doctrines inconsistent wit h the structure and objectives of the
Convention—and now the Regulation. 51 (iv) Exclusive jurisdiction clauses in respect of a
non-Member State
4.38 Subject to specified qualifications "exclusive jurisdiction" is conferred on the
court of a Member State to which the parties have agreed to submit claims ( see Chapter
5). Seeing the view as consistent with Re Harrods (supra) under the Convention, the
English High Court held that this applies only as between contracting States. 52 So a
jurisdiction clause in favour of England or a non Member State will be considered
according to English law. 52 That view, initially expressed in respect of the Brussels
Convention has been maintained as regards the Regulation despite Owusu,52a it being
said that the uncertainty of forum non conveniens does not apply. Jurisdiction
agreements are a Community central feature (see ) but the reasoning is undermined by
the insistence on the discretion in English law not to uphold such an agreement. (v)
Proceedings to enforce judgments of non-contracting States
4.39 In Owens Bank Ltd v. Bracco (No. 2) 53 the European Court held that
recognition and enforcement proceedings of a judgment of a non -contracting State are
not within the Convention. This followed, said the Court, from the purpose of the
Convention, the restriction of the Convention "judgment" provisions to judgments of
contracting States and the lack of reference in any of the jurisdiction provisions to such
proceedings. (vi) Protective or provisio nal measures unconnected with substantive
matters within the Convention
4.40 The jurisdiction in regard to protective or provisional matters is based on
Article 24 (inter alia) and is expressly conferred apart from jurisdiction on substantive
matters (see Chapters 14 to 16). However, such jurisdiction is ancillary to the substance
of the matters and that must be within the scope of the Convention. That is to be decided
by the subject-matter of the claim and the existence of a “real connecting link” between
that subject-matter and the territorial jurisdiction of the contracting State of the court
before which the measures are sought. 54 (vii) National procedural rules
4.41 Whether a rule is labelled substantive or procedural may well turn on the
attitude of a court not only as to its content but the effect on jurisdiction or governing
law in categorising it. But however difficult it is to draw the distinction it is recognised
in the context of the Convention (and hence the Regulation) in th e scope (somewhat
uncertain) given to national procedural rules which do not impair the effectiveness of
the Convention or as appropriate the Regulation. So the scope of third party proceedings
and the ability to strike out an action for abuse of process r emain, within the limits
imposed, matters for national law. 55 Type of proceedings within the Regulation or
Convention
4.42 The Regulation or Convention applies to four different types of "proceedings"
i.e.—
(i) to enforce a cause of action (in this work entitled "initial proceedings")
(ii) in more than one state to enforce the same or a related cause of action (in this
work entitled "multiple proceedings")
(iii) to obtain a protective, or provisional remedy ( in this work entitled
"provisional proceedings")
(iv) to recognise or enforce a judgment, authentic instruments or court settlements
of a contracting State.
The differing purposes of the different type of proceedings lead to distinctions as
to scope. As to initial proceedings, the national jurisdiction law of a Member State may
understandably be applied to a case not having requisite connection with the
Community. However, neither the control over multiple proceedings nor provisions for
recognition or enforcement of judgments involving the same or a related course of
action justify a similar reaction. In such contexts the need is first to prevent the risk of
irreconcilable judgments as between Member States —whether the basis of the
jurisdiction be national law, the Regulation or the Convention 56—and, secondly, ready
recognition and easy enforceability of judgments. 57
4.43 Wide jurisdiction provision for considering preventative measures is
designed to allow for Community support of i nitial proceedings wherever in the
Community these may be. Subject to Community connection ( see (vi) supra) it is to
encourage (and arguably ensure) that each Member State makes its interlocutory
measures available in respect of proceedings in every other Member State. The rules
relating to initial proceedings will be discussed in Chapters 5 and 6 as part of the
general consideration of jurisdiction on the merits, those relating to multiple
proceedings in Chapter 12 (being restrictions on jurisdiction) and provisional
proceedings in Chapters 14 to 16 (interim relief). The recognition and enforcement of
judgments is considered in Chapter 28. Anti -suit injunctions
4.44 In 1999 in Turner v. Grovit58 the English Court of Appeal held that there was
no restriction in the Convention on its inherent power to strike out or restrain a party for
abuse of process. So the court could restrain a party from bringing an action in another
contracting State as "vexatious and oppressive". The granting of such an "anti suit"
injunction is itself controversial, particularly in cases within the Convention ( see
Chapter 25). While the English court no doubt has power to strike out proceedings
before it, it does seem to offend against fundamental pri nciples of the Convention to
intervene in the conduct of foreign judicial proceedings. Quite apart from the issue of
multiple proceedings it may be thought "abuse of process" is a matter for the Court
before which it is brought. And so the European Court h as held59 and that applies to the
Regulation as to the Convention (see Chapter 12). 3. Consideration of Jurisdiction by
the Adjudicating Court Enforcement
4.45 Both the Convention and Regulation are firmly based on the principle that
jurisdiction enquiry is for the adjudicating rather than an enforcement court and for the
court first seised. The grounds on which a judgment in one State may be challenged in
another within the structure, are restricted, and only in respect of insurance, consumer
contracts and "exclusive" jurisdiction under Article 22 60 may the jurisdiction of the
court giving the judgment be considered by an enforcement court ( see Chapters 5, 6). It
would therefore be surprising were there no duty on the adjudicating cour t to consider
its own jurisdiction.
4.46 There must be a general duty on the adjudicating court to decline jurisdiction
lacking Convention or Regulation foundation once the issue is raised. On occasion there
is either an express obligation to decline juris diction of a court’s "own motion"; or an
express obligation to decline jurisdiction. Further, there is provision for the declining of
jurisdiction where the same or a related claim has been instituted in a court of another
contracting State (i.e. where there are multiple proceedings). There is a duty to stay
proceedings to ensure adequate notice of them to the defendant. There are express
powers of stay in respect of multi proceedings and recognition and enforcement of a
judgment against which an appeal is brought. 1. Declining Jurisdiction “Of the court’s
own motion”
4.47 Article 25 and the first paragraph of Article 26 of the Regulation read:
"Article 25
Where a court of a Member State is seised of a claim which is principally
concerned with a matter over which the courts of another Member State have exclusive
jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no
jurisdiction.
Article 26
Where a defendant domiciled in one Member State is sued in a court of another
Member State and does not enter an appearance, the court shall declare of its own
motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of
this Regulation."61
"Of its own motion"—the obligation
4.48 In the context of the lis pendens Convention provision (Article 21) Jenard (at
page 41) expressed the view that the court would have to examine the possibility of
pending actions "only when the circumstances are such as to lead the court to believe
that this may be the case". In the negotiations preceding the Accession Convention the
United Kingdom referred to the change in United Kingdom judicial practice that an
obligation to decline jurisdiction "o its own motion" would cause. In the context of that
comment Schlosser says of the Convention obligations (imposed by Articles 19 and 20):
"It does not necessarily follow from Articles 19 and 20 of the 1968 Convention
that the courts must, of their own moti on, investigate the facts relevant to deciding the
question of jurisdiction, that they must for example inquire where the defendant is
domiciled. The only essential factor is that uncontested assertions by the parties should
not bind the court. For this reason the following rule is reconcilable with the 1968
Convention: a court may assume jurisdiction only if it is completely satisfied of all the
facts on which such jurisdiction is based; if it is not so satisfied it can and must request
the parties to provide the necessary evidence, in default of which the action will be
dismissed as inadmissible. In such circumstances the lack of jurisdiction would be
declared by the court of its own motion, and not as a result of a challenge by one of the
parties. Whether a court is itself obliged to investigate the facts relevant to jurisdiction,
or whether it can, or must, place the burden of proof in this respect on the party
interested in the jurisdiction of the court concerned, is determined solely by national
law. Indeed some of the legal systems of the original Member States, for example
Germany, do not require the court itself to undertake factual investigations in a case of
exclusive jurisdiction, even though lack of such jurisdiction has to be considered by the
court of its own motion."62
This applies equally to the Regulation. Other duties to decline jurisdiction
4.49 Under both Regulation and Convention it is mandatory to decline jurisdiction
in respect of multi-exclusive jurisdictions and the multiple proceeding s brought to
enforce the same claim once it is established that a court of another member (or
contracting) State was first seised. 63 Presumably such a duty arises if the matter is
brought to the attention of the court by a party —but whether in practice there is much
difference between this duty and that to decline "of its own motion" is debatable. In an
English context while a court may consider itself as an umpire to judge according to that
which is put before it, it would be rare that the court does not i nfluence the issues raised —
particularly where they concern jurisdiction. The duties are discussed in Chapter 12. The
power to decline jurisdiction
4.50 The power (i.e. discretion) to decline jurisdiction is conferred on a court
seised of a claim "related" to another claim in respect of which a court in another
member or contracting State is already seised. 64 The nature and effect of the power are
discussed in Chapter 12. 2. Stay of Proceedings
4.51 There is an express obligation to stay proceedings to ensu re that a defendant
has received notice of them or that necessary steps have been taken to that end ( see
4.54). This obligation is applied to an appeal from a refusal of enforcement of a
judgment in respect of the person against whom the judgment is intend ed to be enforced
whether or not that person is domiciled in a contracting State. 65
4.52 There is an express obligation to stay proceedings where proceedings in the
same cause of action have first been instituted in a court of another Member State until
the jurisdiction of the first court is established, where there is a related action in the
court of another contracting State, and when recognition or enforcement is sought of a
judgment and an appeal is pending against the original judg ment.66
4.53 It would be curious if the specification of the power to stay was to be taken as
implying that it could not exist in other circumstances. This is particularly so when the
jurisdiction depends on the decision of another court —as, for example, where
jurisdiction in respect of proceedings between parties not domiciled in a member or
contracting State may depend on the declining of jurisdiction by another court. Any
power to stay under national law would be limited by the purpose of the Regulation or
Convention as appropriate. Procedural safeguards as jurisdictional prerequisites
4.54 In the Regulation the prescription of methods is by one of three processes —
(a) if the document had to be transmitted from one Member State to another (save
in either respect Denmark) the judgment is not to be given until terms of Article 19 of
Council Regulation 1348/2000 on the service of documents are satisfied 67
(b) if that Regulation is not applicable the conditions of service are those of
Article 15 of the Hague Convention on the Service Award of Judicial and Extrajudicial
Documents in Civil and Commercial Matters 1965 (providing that judgment should not
be given) applies68
(c) if neither Regulation 1348/2000 or the Hague Convention are a pplicable:
"The court shall stay the proceedings so long as it is not shown that the defendant
has been able to receive the document instituting the proceedings or an equivalent
document in sufficient time to enable him to arrange for his defence, or that all
necessary steps have been taken to this end." (Art. 26.2)
The Convention provisions (Art. 20.2) are identical with (a) and (b) —no account
being taken of Regulation 1348/2000.
1. They are entitled so to do on any particular proposal on written notifica tion to
the President of the Council within three months of the proposal. Treaty of Rome,
Protocol on Position of Ireland and UK, Art. 3. Denmark may inform the other states that
it no longer wishes to avail itself of all or any part of the exclusion (Protocol on
Position of Denmark, Art. 7).
2. See further II below.
3. Group Josi Co. SA v. UGIC [2000] All E.R.(EC) 653. See further Chapter 5.
4. Compare the reference power under the Treaty of Rome (see fns 9, 10).
5. The court relevant to a maintenance question is the magistrates’ court (Art. 37).
6. A contracting State may request an interpretative ruling in the face of conflicting
national and ECJ Decisions (Art. 4 of the Pro tocol).
7. For the text of the Reports see 1979 OJ C59 pp. 1, 66, 71, 86/C 298/01; 90/C
189/06. The reports are by Mr P.J. Jenard (the 1968 Convention and Protocol);
Professor P. Schlosser (the Accession Convention Denmark, Ireland and the UK);
Professor D.J. Evrigenis and Professor K.D. Karameuz (Greek Accession). Judge
Almeida De Cruz, Professor Desanten Reas and Mr P. Jenard (Accession of Portugal
and Spain).
8. (ex Art. 177), the treaty articles being renumbered under the Treaty of
Amsterdam.
9.Ibid. For the form and content of such references by the High Court and Court of
Appeal see Practice Direction (ECJ: References to the ECJ by C.A. and H.C. [1999] 2
CMLR 799 (text of ECJ guidance notes annexed). There is no such jurisdiction as
regards the Lugano Convention. See Chapter 8. Compare the reference power under Art.
234 (ex Art. 177) of the Treaty of Rome. There must be a real question of
"interpretation", and where the European Court has pronounced, only if the national
court wishes to see if the position is to be maintained. See generally CILFIT Srl v.
Ministry of Health [1982] ECR 3415; [1983] 1 CMLR 472. There should be a
reference by a UK court unless the co urt "can with complete confidence resolve the
issue itself": R v. Stock Exchange, ex p. Else [1993] Q.B. 534 at p. 545.
10. See e.g. Through Transport Mutual Insurance Assoc. (Eurasia) Ltd v. New
India Assurance Co. Ltd [2004] EWCA Civ 1598, in which the CA was considering
reference of a number of issues relating to Regulation 44/200 1 until pointed to Art. 68.
The issues (concerning the arbitration exception in Art. 1 —see 4.28) are common to the
Convention and Regulation and there would have been no obstacle regarding the
Convention.
11. But a common concept of domicile of a legal person appears in the draft
Regulation to replace the Convention ( see p. 138).
12. Problems posed through multilateral Conventions with non M ember States
having jurisdiction provisions are being resolved through Council decisions permitting
Member States to become parties (see 5.12).
13. 1982 Act, s.41; 2001 Order, Art. 9. As to deemed domicil see Act s.44 and
Order, Art. 11.
14. 1982 Act, s.42.
15. 1982 Act, s.45, 2001 Order, Art. 12.
16. Art. 60.
17. Sections 10, 16.
18. Art. 7, Sch. 1, para. 3.
19. For adaptations see Act of Accession, Art. 20, Annex 11, para. 18; Comm.
Regs 1937, 2245/2004.
20. See Declaration as to Briti sh Nationals on coming into force of British
Nationality Act 1981; and (e.g.) Statement by UK as to Gibraltar judgments OJ 1 L 12
2001.
21. Excluded from the Treaty of Rome (Art. 299).
22. The Treaty of Rome applies to the Channel Islands and Isle of Man only to the
extent specified in the Treaty of Accession of ( inter alia) the United Kingdom 1972
(Art. 299(6)(c)). An obligation (under the Accession Treaty) on the authorities to apply
the same treatment to all persons of the Community does not mean any extension of the
non-discrimination principle in relation to actions by Manx citizens (as such). For this
purpose Manx citizens are to be treated as UK citizens. See (as to security for c osts)
Greenwich Ltd v. National Westminster Bank plc [1999] 2 Lloyd’s Rep. 308 and
Chapter 16.
23.SI 1997/2602.
24. See generally and as to multiple proceedings, when one is instituted prior to
entry into force, Chapter 3, pp. 96.
25.29/76 [1976] ECR 1541; [1977] 1 CMLR 88.
26.See Schlosser paras 23–29, pointing out the contrast between (a) the United
Kingdom and Ireland and (b) other EC States in which the public law/private law
dichotomy is well established and setting out some comparative details. Proceedings by
a liquidator may fall within the Convention ( QRS 1 Aps v. Frandsen [1999] 3 All E.R.
289 (C.A.); I.L.Pr. 432 (H.C.). "Revenue matters" includes indirect as well as direct
enforcement of a revenue claim, such a claim inc luding a claim for sums owed as taxes
by a liquidator acting for a foreign state ( ibid.).
27.814/79 [1980] ECR 3807; [1981] 3 CMLR 293.
28. See Geemente Steenbergen v. Baten Case C-271/00, Verein Fu v.
Konsumenteninformation KH Henkel Case 167/00 [2003] I.L.Pr. 1 (also holding that a
consumer protection organisation is not a public authority); Preservatrice foncier ` e
TIARD SA v. The Netherlands Case C-266/0 1.
29.See Sanicentral v. Collin 25/79 [1979] ECR 3423; [1980] 2 CMLR 164. As to
its application to judgments see Chapter 28.
30.See generally Schlosser, paras 53–59. Jurisdiction in insolvency proceedings
is governed by Council Regulation 1346/2000.
31.133/78 [1979] ECR 733; [1979] 3 CMLR 180.
32.See also Powell Duffryn plc v. Petereit C214/89 [1992] ECR 1745; Ashurst v.
Pollard [2001] 2 All E.R. 75 (C.A.); UBS AG v. Omni Holding AG [2000] I.L.Pr. 51
(High Court) (construction of a pre -liquidation agreement within the Convention
although it may affect the defendant’s indebted ness in the liquidation. Compare Maitre
Pierrel v. Ergur (Cour d’Appel, Paris) [1993] I.L.Pr. 523 (judicial reorganisation
proceedings against a corporate entity).
33.See Schlosser, paras 64, 65. So security for costs of an arbitration would be
within the exclusion, but proceedings to enforce an undertaking to provide such security
between the parties to the undertaking not within it —Lexmar Corpn (Bermuda) Ltd v.
Nordisk Skibstederforeng and another [1997] 1 Lloyd’s Rep. 289—clearly right in
holding that the proceedings had nothing to do with arbitration jurisdiction.
34.[1992] 1 Lloyd’s Rep. 342.
35.I.e. in particular the New York Convention on Recognition and Enforcement of
Arbitral Awards 1958. But it may be that an arbitral award trans lated into a judgment
would not be within that Convention (see Victrix Steamshop SA v. Salem Dry Cargo AB
(SDNY) 1987 AMC 276 at p. 279 and generally Chapter 27.
36.An earlier expressed criterion "integral to the arbitration process".
37.Through Transport Mutual Insurance Assoc. (Eurasia) Ltd v. New India
Assurance Assoc. Co. Ltd [2004] EWCA Civ 1598. The court adopted the analysis of
Aikens J. at first instance ([2003] EWHC 3158 (Comm.)) and approved the like
approach in The Ivan Zagubanski [2002] 1 Lloyd’s Rep. 106 as against The Heidberg
[1994] 1 Lloyd’s Rep. 287. ( Toepfer International GmbH v. Molino Boschi SRL
[1996] 1 Lloyd’s Rep. 510; The Lake Avery [1997] 1 Lloyd’s Rep. 540 thought to be too
restrictive in Toepfer International GmbH v. Société Gargill France [1997] 2 Lloyd’s
Rep. 98).
38. And it would seem to follow an injunction to restrain court proceedings.
39. See e.g. New Hampshire Insurance Co. v. Strabag Bau AG [1992] 1 Lloyd’s
Rep. 361 (C.A.).
40. Compare Marc Rich v. Impianti (Corte di Cassazione) [1993] I.L.Pr. 402
(where Impianti sought a declaration in respect of liability to Marc Rich, the latter being
domiciled in Switzerland) with the same case in the English courts in which Marc Rich
was the plaintiff, Impianti being domiciled in Italy ( see supra—arbitration). As to
declaration of non-liability see Chapter 12.
41. Jenard Report (OJ 1979 C 59 p. 1 at p. 15).
42. See Jenard OJ 1979 C 59, pp. 1, 8.
43. See Chapter 7, such adaptation falling outside the jurisdiction of the European
Court (Kleinwort Benson Ltd v. City of Glasgow DC 346/93 [1995] All E.R. (EC)
514).
44. The Ikarian Reefer (No. 2) [2000] 1 Lloyd’s Rep. 129.
45. And within Art. 6(2)—particularly in light of the scope given to national laws
within that provision. See further "National procedural rules" infra and Chapter 6.
46. [1991] 4 All E.R. 334. Approved and applied in Eli Lilly and Co. v. Novo
Nordisk A/S [1999] I.L.Pr. 13 (C.A.).
47. As to its role in this case outside the Convention see [1991] 4 All E.R. 348.
The role of Art. 16(2)—"exclusive jurisdiction" in respect of the validity of corporate
decisions regardless of domicile —does not seem to have been considered. It did,
however, form part of a reference to the European Court by the House of Lords but the
case was settled. See Chapter 5.
48. A course not permitted in respect of the Regulation —the only court having the
power to refer in such a case being the HL ( see 4.12).
49. Case C-281/02. Judgment, 1 March 2005.
50. On the basis that the issue was not raised in the proceedings referred the court
declined to respond to a further question as to whether there were circumstances in
which forum non conveniens could operate (see 4.34 and Chapter 12). As to the ECJ
authority for refusal to consider hypothetical questions or advisory issues on a
preliminary reference see cases cited in paras 49, 50.
51. See also the holdings by the ECJ as contrary to the Convention that (a) claimin g
jurisdiction based on an exclusive jurisdiction clause but not as the court given
Convention power (Gasser v. MISAT Case C-116/02), (see Chapter 12), and (b) the
granting of anti-suit injunction in relation to proceedings in another Member State
(Turner v. Grovit Case C- 159/02). These Decisions apply equally to the Regulation.
52. Ultisol Transport Contractors Ltd v. Bouygues Offshore SA and others
[1996] 2 Lloyd’s Rep. 139 (point not taken in C.A.) (as to which see Chapter 12).
52a. Konkola Copper Mines Plc v. Coromin [2005] EWHC 898.
53. [1994] 1 All E.R. 336 applied in Dubai Bank v. Abbas [1997] I.L.Pr. 391. As
to recognition of foreign judgments see Chapter 27.
54. Van Uden Maritime BV v. Kommanditsegellschaft In Firma Deco-Line
[1998] I.L.Pr. 73 (ECJ). See further Chapters 5, 14.
55. See e.g. The Ikarian Reefer (No. 2) (fn. 35); Boss Group v. Boss France SA
[1996] 4 All E.R. 970 (C.A.). As to the limits see QRS 1 Aps v. Frandsen [1999] 1
W.L.R. 2169 (C.A.). See also infra "anti suit injunction".
56. See Overseas Union Insurance Ltd v. New Hampshire Insurance para. 14 (C
351/89) [1992] 2 All E.R. 138 at p. 160 (ECJ) and infra.
57. See e.g. Re Harrods fn. 37 per Bingham L.J. (at p. 345).
58. [1999] 3 All E.R. 616.
59. Case C159/02, [2004] 2 Lloyd’s Rep. 169.
60. Art. 16 of the Convention—as to the provisions see Chapter 5.
61. The Convention wording is identical in substance.
62. Paragraph 22 (p. 5). There is perhaps not quite the change in English law that
some would assert. The Supreme Court Act 1981, s. 49(3) provides that nothing in that
Act affects the power of the Court of Appeal or High Court to stay proceedings ( inter
alia) "of its own motion". In respect of English law see Chapter 7. See generally as to
the overriding nature of the Convention obligation: Duijnstee v. Goderbauer 288/82
[1983] ECR 3663; [1985] 1 CMLR 220.
63. Regulation Arts 27, 29, Convention Arts 21, 23.
64. Regulation Art. 28, Convention Art. 22.
65. Regulation Arts 26.2–4, 34.2. Convention Arts 20, 40.2.
66. Regulation Arts 27, 28, 37, 46. Convention Arts 21, 22, 38, 40.
67. Provisional or protective measures may be ordered in case of urgency without
the conditions being satisfied (Art. 19.3). There is jurisdiction to relieve the defendant
from any expiration of a time limit to appeal under specified conditions (Art. 19.4, 5).
As to options for Member States see Art. 19.2, 4 and as to implementation by Belgium,
Italy, Luxembourg and (as to Gibraltar) the UK see OJ 2001/C 202/07.
68. This Regulation binds the ten states acceding in 2004 (Act of Accession, Art.
4).
Chapter 5
Forum Law or Community Regime? Introduction

5.1 This chapter will focus on Regulation 44/2 00 1 but it is essential to consider
that in the context of its foundation on the Brussels Convention and its interpretation.
Secondly, it is necessary to consider the Convention as it remains in force in respect of
Denmark and generally as regards proceed ings commenced before 1 March 2002. The
references to the Brussels Convention should be understood as substituting "contracting
States" for "Member States". 1. The Basic Dichotomy
5.2 If a suit falls within the ambit of the Regulation Convention because of its
subject-matter and is not excluded by the nature of the proceedings jurisdiction will be
decided according to the applicable regime or by national law of the forum. If it is not
referred to national law it will be decided either according to the Convention given
precedence by the regime or the applicably regime itself. That issue and allocation of
jurisdiction to courts of Member States can be identified and d ecided only once the
applicability of the allocation provisions are applicable. Applicable regime or
national law?
5.3 The general criteria for the reference to the Regulation or national law are set
out in Articles 2, 4. These read:
"Article 2
Subject to this Regulation, persons domiciled in a Member State shall, whatever
their nationality, be sued in the courts of that Member State.
Persons who are not nationals of the Member State in which they are domiciled
shall be governed by the rules of jurisdiction applicable to nationals of that State.
Article 4
If the defendant is not domiciled in a Member State, the jurisdiction of the courts of
another Member State shall, subject to the provisions of Article 22 and 23, be
determined by the law of that Member State.
As against such a defendant, any person domiciled in a Member State may,
whatever his nationality, avail himself in that State of the rules of jurisdiction there in
force, and in particular those specified in the second paragraph of Annex 1, in the same
way as the nationals of that State." 1 2. Applicability of National Law of the Forum A.
Where Defendant Is Not Domiciled in a Member State
5.4 Subject to specific provisions, proceedings within either Regulation or
Convention brought against a defendant not domiciled in a contracting State are referred
to national law. So national law applies not because the appropriate regime does not
apply but because it applies it. Once so applied save for extending national laws as to
jurisdiction, in one respect, neither the Regulation nor the Convention has any further
part to play. Care must be taken, however, for although there are only two exceptions to
the domicile rule specified there are a two further instances in which the jurisdiction
regime may apply even though the defendant is not domiciled in a State. 2 To determine
whether national law applies, therefore, it is necessary to review the applicability of the
regimes. It is neither necessarily enough for applicability that the defendant is d omiciled
in a Member State nor enough for non -applicability that he is not so domiciled. B.
Extension of Scope of National Law Rules (Articles 2, 4)
5.5 The second paragraph of Article 2 of both Regulation and Convention
emphasises the central feature of domicile, imposing on each contracting State the duty
not to treat those domiciled in the state any differently jurisdictionally than nationals of
that state. The second paragraph of Article 4 builds on that in extending national law
rules of so called "exorbitant" jurisdiction (and specifically outlawed as against a
defendant domiciled in a contracting State) to plaintiffs domiciled in a contracting State
when suing defendants not so domiciled ( see Chapter 5). Article 4(2) has effect where
national law differentiates in conferring jurisdiction in favour of citizens of that country
(as does the French Code). The provision changes the basis of such advantage from
nationality to domicile. When matched with the ready recognition of judgments within
the Community it widens the liability of defendants not domiciled in a contracting State
to enforceable judgments within the Community.
5.6 The national jurisdiction rules specified in both the Regulation and Convention
include:
(i) The home nationality of the plaintiff or the defendant (as in Articles 14 and 15
of the French Code, Articles 14 and 15 of the Luxembourg Code, Article 15 of the
Belgian Code. Article 14 of the Italian Code of Civil Procedure, Article 127 of the
Netherlands Code of Civil Procedure and Article 165 of the Portuguese Code of Civil
Procedure).
(ii) The service of process on a defendant present in a contracting State (as,
section 1 of Chapter 10 of the Finnish Code of Civil Procedure and the Procedural
Rules of the United Kingdom and Ireland or in the case of foreign associations the place
of permanent representation (Article 99 of the Austrian Law of Court Jurisdiction)).
(iii) Residence of the defendant (as in the Belgian and Danish laws) or domicile of
the plaintiff (as in the Netherlands law) or in Finland last residence of a national staying
abroad (Article 1 of Chapter 10 of the Finnish Code of Civil Procedure).
(iv) The presence or seizure of property (as in the United Kingdom —particularly
in Scotland—Article 23 of the Code of Civil Procedure of Germany, Article 40 of the
Code of Civil Procedures of Greece, section 1 of Chapter 10 of the Finnish Code of
Civil Procedure or section 3 of Chapter 10 of the Swedish Code of Judicial Procedure
or Article 99 of the Austrian Law on Court Jurisdiction).
5.7 Provisions of the Italian Code of Civil Procedure 3 conferring wide jurisdiction
over foreigners and limiting the enforceability of jurisdictional agreements as against
Italian nationals resident or domic iled in Italy are also excluded. In the Convention
Danish laws basing jurisdiction on service ((ii) in 5.6) and residence of the defendant
((iii) in 5.6) are specified. In the Regulation the list was amended in 2002 4 and then in
2004 by the Act of Accession and Commission Regulation 5 to incorporate similar
jurisdiction rules in the 10 states acceding in that year.
5.8 As a counterbalance under the Convention a contracting State may enter into a
Convention with a non-contracting State prohibiting the recognition or enforcement of a
judgment of another contracting State based on those rules against a defendant domiciled
or habitually resident in that state (Article 59). Under the Regulation this ab ility is
restricted to Conventions entered into prior to the Regulation (Article 72). Such
conventions entered into subsequently would be inconsistent with the exclusive powers
of the Community reflected in the Regulation. C. Limitation Actions
5.9 Under the Regulation and Convention a court having jurisdiction "by virtue of"
the appropriate regime over a liability issue arising from the use or operation of a ship
also has jurisdiction over claims for limitation of that liability. 6
5.10 Although in a sense where forum law governs its root is the Regulation (or
with less force the Convention), it would seem that in this context the reference is to
jurisdiction under the regime. So limitation jurisdiction is ancillary to other grounds of
Regulation or Convention jurisdiction. 3. Priorities Recognised by the Regime 1.
Community instruments
5.11 Neither the Regulation (nor the Convention) prejudices (or "affects")
provisions governing jurisdiction or judgments in specifi c (or "particular") matters in
Community instruments or national laws harmonised pursuant to such instruments. 7 Such
jurisdiction has its Community root independently of the Regulation or Convention and
the provisions simply prevent any dispute as to priority. Council Decisions allowing
participation in Conventions inconsistent with the regime
5.12 In these decisions the Council has authorised (and encouraged) Member
States to sign, ratify or accede to mu ltilateral Conventions on specific substantive
matters but which contain provisions of jurisdiction and judgments inconsistent with the
Regulation8—
(i) of 19 September 2002 9—the International Convention on Civil Liability for
Bunker Oil Pollution Damage 2001 (the Bunkers Convention)
(ii) of 18 November 2002 10—the International Convention on Liability and
Compensation for Damage in Connection with the Carriage of Hazardous and Noxious
Substances By Sea 1996 (the HNS Convention)
(iii) of 2 March 2004 11—Protocol 2003 to the International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution Damage
1992 (the Fund Convention).
In all these instances the Council has stressed the international importance of the
central features of the Conventions and that each Convention fills a significant gap in
regulation of its field.
5.13 A similar proposal has been made by the Commission to the Council for a like
decision relating to the Protocol of 2002 to the Athens Conv ention Relating to Carriage
of Passengers and their Luggage By Sea 1974 (the Athens Protocol). 12 Although any
inconsistency as to the recognition of judgments may be met by a provision of the
Protocol permitting other rules not derogating from its provisio n (Article 17 bis (3)) it
is possible that the jurisdiction provisions may differ.
5.14 Member States are encouraged to become parties following the Community
becoming a party. 13 The second step is for the incorporation of the Protocol into
Community law by a Regulation. Currently it seems as if the initial proposal is with the
Parliament and no proposal has yet been made for a Regulation. 4. Applicability of the
Regulation or Convention Regime
5.15 Once regime jurisdiction is applicable (as distinct from a reference to
national laws) the first question which arises is whether it provides that another
Convention takes precedence. While, if there is such a Convention its rules will apply
to allocate jurisdiction rather than the regime allocation rule, the applicability of the
reference to the other Convention requires that by the regime the jurisdiction is subject
to regime rules rather than national law. Unlike Community instruments this jurisdiction
base is through the regime. It is therefore necessary first to consider applicability of the
regime.14 2. Jurisdiction bases
5.16 As the primary rule of applicability (that the defendant is domiciled in a
contracting State) applies subject to other Convention provisions the approach must be
first to consider the criteria of applicability other than the domicile of the defendant and
secondly the domicile of the defendant. Once the criterion of Convention applicability
is identified the scene is set for the jurisdiction to be allocated although in many
instances the provision relevant to applicability also makes the allocation ( see Chapter
6). 1. Criteria of Applicability Other Than the Defendant’s Domicile
5.16A In respect of initial proceedings 15 the exceptions to the general rule of
applicability of the Regulation regime based on the defendant’s domicile in a Member
State are:
(a) matters within the "exclusive jurisdiction" provision of Article 22;
(b) appearance by a defendant in a court of a Member State (Article 24);
(c) jurisdiction agreement selecting a court of a contracting State (Article 23);
(d) the "deemed domicile" of insurers non-consumer parties to consumer contracts
employers (Articles 9, 15 and 18).
The scope of the Convention is identical save (i) that there is no such provision
regarding employers16 and (ii) amendments to the particular provisions (as to which see
below). A. Exclusive jurisdiction by virtue of Article 22
5.17 Article 22 reads:
"The following courts shall have exclusive jurisdiction, regardle ss of domicile:
(a) in proceedings which have as their object rights in rem in, or tenancies of,
immovable property, the courts of the Member State in which the property is situated;
(b) however, in proceedings which have as their object tenancies of i mmovable
property concluded for temporary private use for a maximum period of six consecutive
months, the courts of the Member State in which the defendant is domiciled shall also
have jurisdiction provided that the tenant is a natural person and that they are domiciled
in the same Member State 17;
In proceedings which have as their object the validity of the constitution, the nullity
or the dissolution of companies or other legal persons or associations of natural or legal
persons, or the decision of their organs, the courts of the Contracting State in which the
company, legal person or association has its seat. In order to determine t hat seat, the
court shall apply its rules of private international law 18;
In proceedings which have as their object the validity of entries in public registers,
the courts of the Member State in which the register is kept;
In proceedings concerned with the registration or validity of patents, trade marks,
designs, or other similar rights required to be deposited or registered, the courts of the
Member State in which the deposit or registration has been applied for, has taken place
or is under the terms of a Community instrument or an international convention deemed
to have taken place;
Without prejudice to the jurisdiction of the European Patent Office under the
Convention on the Grant of a European Patent, signed at Munich o n 5 October 1973, the
courts of each Member State shall have exclusive jurisdiction regardless of domicile in
proceedings concerned with the regulation or validity of any European patent granted
for that State.19
In proceedings concerned with the enforcement of judgments, the courts of the
Member State in which the judgment has been or is to be enforced."
If a matter falls within this provision it is within the Regulation because of that and
also is within the "exclusive jurisdiction" o f the state to which it is allocated. Subject to
the possibility of more than one exclusive jurisdiction, 20 Article 22 therefore provides
the criteria both for applicability and for allocation of jurisdiction under the Regulation
this being underlined by the duty of a court of another Member State to declare of its
own motion lack of jurisdiction (Article 25) 21 (see Chapter 4). Matters within Article
22
5.18 The Article provides a potential minefield of divergency if the concepts on
which the categories depend are referred to national law. It is therefore not surprising
that the European Court has consistently held that the provision is based on Community
concepts. 22
(i) Immovable property (Article 22.1)
5.19 The provision is unchanged from the Conv ention save for widening the
jurisdictional options of a tenant (see 5.17.1). The concepts of rights in rem, immovable
property and tenancy are those of European law 23 although that will no doubt be based
at least to an extent on developments in national laws. While in large measure they are
not those of the common law they should not be difficult to apply. It should not include,
for example, an action for specific perf ormance of damages of a contract concerning
immovable property between the parties to the contract (Cf. Schlosser, paras 166 –
168).24
5.20 The object of the provision is to allocate jurisdiction to the place which "is in
the best position . .. to have a good knowledge of the factual position" and to apply the
rules of the place where the property is situated. While it includes jurisdiction to
determine whether the matter falls within the provision (e.g. whether a tenancy exists) it
does not include all actions relating to "rights in rem" nor all matters relating to
tenancies. So while it does apply to an action in personam based on the tenancy 25 it
does not apply to a claim by a creditor to set aside a disposition in defrauding the
creditor26 or a trust concerning land 27 nor where the tenancy dispute concerns the
operation of a business. 28
5.21 Any question of title to an immovable in the context of the maritime claim is
likely to arise collaterally in (for example) an action involving damage to a pier or
(possibly) retention of possession in a shipyard or storage of goods in a warehouse.
(ii) Corporations and associations (Article 22.2)
5.22 Save for the reference to European Patents ( see fn. 19) the provision is
unchanged from the Convention (Article 16.2). Being an exception to the general basis
of domicile the provision is to be restrictively interpreted. But the constitution is not
limited to the memorandum and articles. It includes a claim based on contract where that
contract goes to the composition of the Board of Directors. 29 While the enforcement of a
maritime claim would not have as its object the nullity or dissolution of a corporation or
legal association it may well depend on the existence of the corporation or, even more
likely, whether a decision of the board of a company was validly taken. 30 It should be
recalled that bankruptcy matters fall outside the Convention (see Article 1(1)) an d any
action involving the winding up of a company may raise questions of construction both
of Article 1 and of the scope of exclusive jurisdiction.
5.23 The phrase "association of natural or legal persons" appears both as regards
exclusive jurisdiction and in the Convention in the context of domicile ( see 5.24). The
contention (as with all concepts within the provision) that the phrase should be
construed in its European rather than national sense is simply underlined by its
relevance in two fundamental aspects of the Convention. It would clearly be preferable
to give the provision a uniform scope dependent on the nature of the association rather
than a varied application turning on a domestic characterisation. There is some
uncertainty whether a partnership in English law is included but, as is contended in the
context of domicile, there seems little reason why it should not fall within the phrase.
Schlosser is of the firm opinion that the phrase does encompass partnership (see
paragraph 162).
THE SEAT OF THE CORPORATION
5.24 In the Convention Article 53 refers this issue to the private international law
of contracting States. As a consequence national laws may differ as a corporation may
have its seat in more than one State. 31 In a change from the Convention, the domicile of a
corporation (which may be its seat) becomes a matter of European law rather than being
referred to the private international law of Member States. 32 However, the former
approach is applied in Article 22. 33 In English law the matter is controlled as to the
Convention by section 43 of the 1982 Act and as to the Regulation by Article 10 of the
Civil Jurisdiction and Judgments Order 2001. 34 These provisions set out substantive
rules for the purpose thereby necessarily implying that English law will govern except
insofar as the provision refers matters to foreign law.
(iii) Public registers (Article 22.3) 35
5.25 The scope of the provision seems uncertain. 36 In seeking the view of the
European Court it should be borne in mind that jurisdiction under this Article should be
construed restrictively for it is imposed without the consent of the parties. Whether "
public register" means registers open to the public or " public" in the sense that they are
governmental or simply open to the public is not clear. 37 Whichever it is, there is no
difficulty if the clause is restricted to " validity" in the narrow sense of reflecting the
interest which is registered and not the validity of that interest even if it is the
registration that confers the validity.
5.26 As regards maritime claims it would include proceedings concerning the
validity of entries in registers under the Companies Act 1985 38 and under the Merchant
Shipping Act 1995. If a wider view is taken of the sc ope of the provision, the validity of
a share transfer, a registered charge or the registration of a ship or ship mortgage could
fall within this clause. On the other hand a claim based on the assertion that the failure
to register meant invalidity of the interest would, unless it consequentially affected an
interest on the register, not be within the clause. While it may be understandable that
only the place of the register can control entries as such it does not follow that it is only
that place that may resolve the validity of the interest on which the registration is
based.39
5.27 The problem for English law is that there are numerous registration systems
each having different purposes and characteristics. The provisions of Article 16(3) will
make more sense the more a registered interest cannot be challenged, i.e. validity is
equated with the registration. Registration of ships and mortgages does not carry that
consequence in English law and it is perhaps doubtful whether the simple existence of a
register should necessarily lead to exclusive jurisdiction. Particularly is this so since
the transactions leading to registration may be good by laws other than the forum.
(iv) Intellectual property (Article 22.4) 40
5.28 In the context of maritime claims little comment is called for. The provision
goes only to registration or validity of the intellectual property and not to every interest
concerning it.41
(v) Judgments (Article 22.5)
5.29 The provision is unchanged from the Convention (Article 16.5). It applies to
judgments following proceedings; it does not encompass enforcement proceedings of a
judgment in a non-contracting State. 42 It fits together the jurisdiction and enforcement
frameworks.43 An English court cannot exercise any power it may have under national
law to enjoin a party from enforcing a judgment of a contracting State. The Convention
permits resistance of enforcement only on specified grounds ( see Chapter 28).
However, "a party cannot make use of the jurisdiction conferred by this provision in a
dispute which falls within the jurisdiction of another Member State under Article 2". 44
5.30 The provision does not apply to an action seeking to set aside a disposition —
so an action in French law to set aside a gift as a fraud on a creditor is not "
enforcement",45 and it has been held not to apply to an order ancillary to enforcement. 46
Such an approach is underlined by decisions of national courts that an enforcement court
cannot add to any order or judgment —simply enforce it (see Chapter 28). A national
court should therefore consider the limitation in the context of the territorial sco pe of
any order it may make. B. Appearance by a defendant (Article 24)
5.31 The provision is unchanged from the Convention (Article 18). It reads:
"Apart from jurisdiction derived from other provisions of this Convention, a court
of a Contracting State before whom a defendant enters an appearance shall have
jurisdiction. This rule shall not apply where appearance was entered solely to contest
the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article
22. "47
Apart from exclusive jurisdiction under Article 22, therefore, " appearance" by a
defendant in the substantive proceedings will create jurisdiction. In Elefanten Schuh
GmbH v. Pierre Jacqmain 48 the European Court confirmed the overriding effect of
appearance. The Court held that under the Convention it conferred jurisdiction even if
there is a jurisdiction agreement conferring "exclusive jurisdiction" on a court of
another contracting State on the basis that the actions of the parties have waived the
agreement. That clearly applies to the Regulation.
5.32 The provision requires the distinction —clear in principle—between
challenge to the jurisdiction and submission on the merits to be reflected in procedure in
each Member State at least for the purposes of the Regulation or Convention. However
the neither does not dictate national practice. It simply provides a framework within
which that practice must operate.
5.33 Submission to the merits woul d not follow from contesting protective
measures49 nor necessarily follow from pleading a defence to the claim. It may be
necessary according to national procedure that the challenge to the jurisdiction and the
defence to the merits be pleaded in the alter native. In such a case submission only
occurs if the defence is lodged without any indication that there is to be any contest as to
jurisdiction (see Elefanten Schuh followed by the Court in Rohr S.A. v. Ossberger50).
When that stage is reached is a matter for national procedure.51 "Appearance" in English
law52
5.34 Under English law there will be an " appearance" (or submission) to
jurisdiction on the merits through participation in the proceedings on merits. An
acknowledgment of service without more is no t submission nor can any undertaking to
acknowledge the service of a claim form be taken as submission. A defendant who
wishes to dispute the substantive jurisdiction must file an acknowledgment of service of
the claim form and service does not affect any right to dispute.53 Further, in an action in
rem acknowledgment of the issue of the claim form, 54 the putting up of bail or the entry
of a caveat against arrest will normally not be submission. Such acts do not preclude a
challenge to jurisdiction. 55 Whether or not any interlocutory act amounts to appearance
other than to contest the jurisdiction depends on the act —an application for discovery or
for extension of time for service of the defence or contesting a freezing order obtained
without notice does not constitute appearance on the merits. 56 An act not directly
connected with the court (such as the giving of a guarantee) would not without more be
submission.57 C. Jurisdiction by agreement 58 (Article 23)
5.35 Article 23 corresponds largely to Convention A rticle 17 and subject to
amendment the interpretation of the Convention applies to the Regulation.
1. "If the parties, one or more of whom is domiciled in a Member State, have
agreed that a court or the courts of a Member State are to have jurisdiction to settle any
disputes which have arisen or which may arise in connection with a particular legal
relationship, that court or those courts shall have exclusive jurisdiction. Such
jurisdiction shall be exclusive unless the parties have agreed otherwise. Such a n
agreement conferring jurisdiction shall be either —
(a) in writing or evidenced in writing, or
(b) in a form which accords with practices which the parties have established
between themselves, or
(c) in international trade or commerce, in a form which accords with a usage of
which the parties are or ought to have been aware and which in such trade or commerce
is widely known to, and regularly observed by, parties to contracts of th e type involved
in the particular trade or commerce concerned.
2. Any communication by electronic means which provides a durable record of the
agreement shall be equivalent to "writing" .
3. Where such an agreement is concluded by parties, none of whom i s domiciled in
a Member State, the courts of other Member States shall have no jurisdiction over their
disputes unless the court or courts chosen have declined jurisdiction.
4. The court or courts of a Member State on which a trust instrument has conferre d
jurisdiction shall have exclusive jurisdiction in any proceedings brought against a
settlor, trustee or beneficiary, if relations between these persons or their rights or
obligations under the trust are involved.
Agreements or provisions of a trust instr ument conferring jurisdiction shall have no
legal force if they are contrary to the provisions of Articles 13, 17 or 21, or if the courts
whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of
Article 22.
5.36 It is for national courts to interpret a jurisdiction clause to determine whether
the dispute before it (a) arises out of the legal relationship reflected by the clause and
(b) is within the agreement. However, the concept of an agreement conferring
jurisdiction is a rule of Community law and that which is required to constitute it and its
scope are matters for that law and not for the private international law of member
States. 59 Whether or not there is agreement will be adjudged on the intention of the
parties on the basis of the contents of the provision, the sole purpose of the formal
requirements being to ensure that the consensus of the parties is established 60 (see
infra). But the standard of proof required for each aspect of the validity scope and
enforceability of the agreement appears to be the national law ( see para. 5.82).
5.37 The provision of the Regulation and Convention does not affect choice of law
clauses—and therefore a clause going to jurisdiction and choice of law but failing to
qualify as a jurisdiction agreement may be valid as a choice of law clause. 61 From
general principles the jurisdiction provision will apply only where there is an element
connecting the dispute with more than one Member State. It will not apply where two
parties domiciled in a contracting State opt for the jurisdiction of that state. 62
5.38 The provision operates differently according to the connection between
parties and the Community. It applies to confer jurisdiction if one party (plaintiff or
defendant) is domiciled in a Member State or to limit jurisdiction if no party is so
domiciled. Where one party is domiciled in a Member State it imposes an obligation on
the selected court to hear the case—the rule takes precedence over any national law and
there is no discretion to stay the proceedings. 63
5.39 A court selected has power to decline jurisdiction only if no party is
domiciled in a Member State. In such circumstances w hether or not to decline is for
national law and declining opens the way for Regulation or Convention jurisdiction
elsewhere.
5.40 An obligation to consider jurisdiction of a court’s own motion is imposed if a
defendant is domiciled in a Member State and does not appear ( see Chapter 4). If a
defendant does appear it will either be to contest jurisdiction, in which case the effect
of any jurisdiction clause necessarily arises, or not to contest jurisdiction, in w hich case
there will be submission by the defendant —that submission overriding the jurisdiction
clause (see supra). No requirements additional to the agreement
5.41 Subject to express qualifications and any implied by other provisions (as, for
example, appearance), an agreement must be recognised as itself conferring exclusive
jurisdiction on the selected state. Links between "the court designated to the case,
validity of the clause or substantive rules of national law" are irrelevant. 64 Once the
specific formal requirements for the agreement to be recognised are met no prohibition
or limitation in national law on the ability to select a court can operate to affect the
agreement. In Elefanten Schuh v. Jacqmain65 the European Court held that no national
law requirements of form could operate to prevent enforceability. In Sanicentral v.
Collin66 the Court held that the Belgian prohibition on contracting out of jurisdiction of
an employment tribunal could not stand in the face of Article 17 of the Convention —
indeed it would have been surprising if any other view was taken.
5.42 However, if another Convention is applicable (as to which see Chapter 6)
which provides for a qualification (be it a relaxation or a restriction) on the effect of
jurisdictional agreements, to that extent the provisions of the other Convention apply.
Further, it has been held in the English High Court that cannot apply if its effect would
be to remove jurisdiction conferred by another applicable Convention. 67 That seems to
follow from the deriving of Community jurisdiction from the specialised Convention. 68
"Exclusive" jurisdiction
5.43 Unlike the Convention it is provided by the Regulation that the jurisdiction
shall be exclusive unless the parties agree otherwise. In the face of this pow er
understandably the Convention provision that if the agreement is for the benefit of one
party (see 5.66) the agreement operates non -exclusively if omitted. The ability to agree
to non-exclusivity with the contrary presumption emphasises the critical fea ture of
agreement and removes the need for interpretation of "benefit of one party". Secondly, in
effect it clears up a point arising under the Convention as to the meaning of "exclusive" .
5.44 The approach of the English courts was that it meant exclusiv e of the
allocation of jurisdiction by the Convention and that its scope was not to be confined to
one selected court. 69 There is, under the Regulation, no question of validity of an
agreement that is not confined to one court —simply a question of whether there is such
an agreement. In the Convention subject to "exclusive" jurisdiction based on the subject
matter of the case or appearance by the defendant, 70 the English view is that a
jurisdiction clause will qualify even if it does not purport to exclude o ther courts or
includes courts which would have jurisdiction on other bases. 71 The further view that
insofar as it is "exclusive" it overrides the "priority" provision in favour of the court
first seised where there are proceedings in the same or related a ctions in courts of
different states. 72 This was rightly, it is suggested, overturned in 2004 by the European
Court in Gasser v. MISAT73 as inconsistent with those Convention provisions. That
clearly applies to the Regulation.
Consensus and the formal requirements
5.45 As the European Court has said, the sole purpose of the formal requirements
is to ensure that the consensus of the parties is established ( Iveco Fiat SpA v. Van Hool
NV).74 That consensus must be clearly and precisely demonstrated. 75 The agreement
must be: (a) in writing or (b) evidenced in writing; or (c) in a form according with
practices of the parties or (d) in international trade or commerce "in a form which
accords with practices in that trade or commerce of which the parties are or ought to
have been aware". In the original 1968 Convention the requirement was that the
agreement should be in writing or evidenced in writing and the requirements were
strictly construed. Writing was required as evidence of consent of both parties to the
jurisdiction clause itself. It was not enough for the clause to appear in general printed
conditions but otherwise where the text of the contract signed by the parties contains an
express reference to such general conditions. There is a need for both parties to be
aware of the jurisdiction clause. However, it could be so if those conditions confirmed
a previous oral agreement, formed part of a continuous business relationship or the text
of the contract signed by both parties expressly refers to the jurisdiction clause. 76
Whether a jurisdiction clause is incorporated from one contract to another (and on that
basis evidenced in writing) is an aspect of consensus between the parties. 77 It must be
borne in mind that incorporation of substantive clauses does not necessarily mean
incorporation of a jurisdiction clause, that being ancillary in nature. 78 Where a third
party is bound by the contract (as to which see infra) it is agreement of the original
parties which must satisfy the requirements. 79
5.46 In the Accession Treaty 1978 recognition was accorded to practice in
international trade or commerce, and on the adoption of the Regulation and present
Convention text in 1989 also to any practice established by the parties. The amendment
relating to the practice of the parties was intended to reflect the construction already
approved by the European Court. 80 Such practice would have to relate to the type of
contract at issue.
5.47 As to practice in international trade or commerce, while the need for
consensus remains, the amendment does not go solely to form —consensus is presumed
to exist where the practice is shown. So, although a clause on the back of a standard
form contract will not of itself suffice, 81 it has been held by the European Court that
continued dealing on the basis of a contract consistent with a practice in force in the
relevant field of commerce may do so. 82 It is for national courts to decide whether (a)
there was a practice and (b) the parties were aware or were to be presumed to be
aware. 83
5.48 However, the Court specified criteria to be applied. So, whether a practice
exists in a branch of commerce depends not on the national law of the parties or
international trade or commerce generally but on "a particular course of conduct [being]
generally and regularly followed by operators in that branch when concluding contracts
of a particular type" . 84 Actual or presumptive awareness of the practice is to be by the
original parties to the contract. 85 It is shown by a previous commercial relationship
between themselves or with other parties or a well -known general and regular practice.
Jurisdiction clauses in bills of lading will normally be within the provision relating to
international trade or practice. 86 The extent to which charterparty jurisdiction clauses
are incorporated into bills of lading may be more uncertain depending on any practice
of which the parties could be said to have been aware. Following the principles set out
by the European Court it will not be enough simply that by national law in any fact
situation clause would have been incorporated into the contract.
5.49 Lacking practice of the parties or of international trade or commerce there
must be some indication of express consent. 87 A clause providing for jurisdiction in the
carrier’s place of business may suffice if carrier and shipper signify their consent, the
carrier and his place of business being identified by the consent. 88
Scope of Article 23
5.50 Subject to the changes regarding non exclusive agreements and the references
to electronic communication there is no difference as to scope between Convention
Article 19 and Regulation Article 22. So authorities interpreting the Convention remain
relevant to the Regulation.
(i) "International" disputes
5.51 As the Regulation and Convention are concerned with the allocation of
jurisdiction as between member Sta tes they have no role in any dispute wholly
connected with one state. However, a jurisdiction agreement in any claim involving any
foreign element will be within the provisions. So even if the parties are domiciled in the
same state they may apply whether the court selected is a court of that or any other
Member State.89 It is for the national court to determine whether the contract relates to
"international trade or commerce".
(ii) Validity of the clause
5.52 Any issue of the validity of a jurisdiction c lause falls within the Regulation or
Convention, whether it goes to the clause itself or the contract containing it, it being
consistent with the aim of legal certainty underlying both that the selected court should
be able to decide its own jurisdiction. 90 However the substantive provisions are subject
to the governing national law.
(iii) S e t o f f
5.53 The jurisdiction agreement will confer on the selected court the power to
adjudicate not only in relation to any claim within it but also any set off connected with
the legal relationship from which sprang the claim 91; jurisdiction is limited by the
jurisdiction conferred over counterclaims. Counterclaims arising from the same
"contract or facts on which the original claim was based" are within the jurisdiction
over the original claim. (See Article 6.3 and Chapter 6.)
(iv) Selection of more than one court
5.54 Just as a non-exclusive jurisdiction clause will qualify ( see supra) so will an
agreement selecting courts of more than one state. 92 However, it may be arguable that an
agreement that a dispute would be referred to "courts of the United Kingdom" might not
be specific enough for it does not select a court nor can national law fill the gap. On the
other hand it is likely that the agreement is sufficiently certain in a Community sense in
selecting the courts of a contracting State and it would then be left to national law to
make the final selection. Presumably if national law had no principle on which that
could be based the agreement would be invalid.
(v) Selection of a court of a non Member State
5.55 The provision does not encompass a clause conferring juri sdiction on a court
of a non Member State. If the defendant is domiciled in a Member State and an action is
brought in that state contrary to the clause it is arguable that (subject to alternative
jurisdictions) that is jurisdiction identified by the Regul ation or Convention. On the
other hand there is no fundamental principle of the imposition of jurisdiction in a
Member State as against jurisdiction in a non -Member State. There is no prohibition on
a plaintiff domiciled in a Member State bringing an actio n in a forum outside the
Member States nor on any defendant in submitting to such jurisdiction. 93 For the
Regulation or the Convention to be so construed as to impose non -recognition of an
agreement to litigate outside Member States would be to exceed its purpose of
allocation of jurisdiction (see Schlosser, paragraph 176). 94 If the Convention does not
apply the question of whether it is to be upheld is for national law. 95 If it is then found to
be invalid the Community jurisdiction framework would apply (Schlosser, ibid.).
5.56 This issue is distinct from that of forum non conveniens. In Owusu v.
Jackson96 the European Court emphasised that the primary rule conferring Comm unity
jurisdiction through the domicile of the defendant applies to matters involving member
and nonmember States. It was inconsistent with the Convention to decline jurisdiction
on the basis of forum non conveniens. The court declined to stray from those two issues
and the Advocate General specifically excluded jurisdiction agreements or cases in
which proceedings has commenced before a court of a non -member State.
5.57 A major factor in the court’s decision was the need for certainty in a
defendant foreseeing the jurisdiction in which suit may be brought. That should not be
nearly as critical an issue where the parties had agreed on the jurisdiction. Furthermore,
a second central feature of the Regulation and Conven tion is the importance in
recognising the agreement of the parties. It would seem, therefore, somewhat
inconsistent with these principles as well as dubious to infer that allowing a party to
ignore an agreement on the jurisdiction of a non -member State was part of the
Community structure.97 The decision in Coreck assumes that such an agreement will fall
within it.
Article 17 and third parties to jurisdiction agreements
5.58 In Gerling Konzern v. Amministrazione del Tesoro 98 the European Court held
that a third party beneficiary of an insurance contract containing a forum clause could
rely on Article 17 of the Convention provided the insurer had indicated his consent in
the original agreement. It was irrelevant that the third party had not satisfied the
requirements of writing. The Court took into account the protective provisions of the
Convention in respect of an insured (i.e. section 3 —as to which see infra) and in
particular Article 12 providing for a jurisdiction agreement al lowing a "beneficiary" to
bring proceedings in a court other than one specified in the Convention. 99
5.59 This approach would not necessarily apply where the question is whether the
beneficiary or an injured party in a direct action against the insurer is bound by the
agreement. 100 Presumably the matter would depend first on whether the applicable
national law provided for such binding effect —an approach adopted by the European
Court in respect of marine transport. In the Tilly Russ case101 a central issue was
whether the jurisdiction agreement in a bill of lading which met the formal requirements
of Article 17 in respect of the carrier and the shipper would bind a third party wh o by
the applicable national law was bound by the bill of lading.
5.60 The present wording permits compliance through a form according to
international trade or practice but, as with the original wording, without reference to
third parties. Consistently with its approach in Gerling Konzern 102 the European Court
has held in that once the agreement qualified as between the original parties to the bill
of lading it would continue to qualify as between carrier and successor to the shipper if
by the applicable national law that successor succeeded to the shipper’s rights and
obligations. 103 If there was no such succession the jurisdiction clause would bind any
third party bearer entitled to enforce it only if he had consented to it. 104 That aspect of
the decision applies to the amended text as much as to the original. 105
5.61 It is unclear whether if the carrier is not domiciled in a contracting State the
domicile of the successor to the shipper affects the applicability of the Regulation or
Convention. The applicability differs according to whether a party is domiciled in a
Member State, and it may well be that it is the original agreement which controls. Once
triggered, the provision may then operate treating the third party to the agreement an d
where relevant on the basis of the domicile of that party. 106
5.62 A similar issue arises as regards the formal requirements. From the cases of
Tilly Russ and Transporti Cantelletti Spedizioni it is the original agreement which is
critical (see "formal requirements" supra). The question whether it binds the third party
is a question of substitution by national law. In other words the question is one of the
validity of the transfer and rights and obligations by national law. So under English law
an assignee of a contractual right (as to a sale price under a contract) would be bound
by the clause.107
Limitations on the effect of jurisdiction agreement
(i) Exclusive jurisdiction because of subject matter 108
5.63 By the terms of the Regulation or Convention an agreement cannot affect such
"exclusive" jurisdiction. As the duty of a court is to declare of its own motion when
such jurisdiction exists elsewhere and as a judgment delivered in proceedings contrary
to the provisions will not be recognised (see Chapter 18), such agreement has no legal
force.
(ii) Individual employment contracts
5.64 The structure of the Regulation is changed from the Convention in that
jurisdiction in regard to such contracts formerly appearing as exceptions in provisions
concerning contracts and jurisdiction agreements are set out in a separate section
(Articles 18–2 1). The effect, however, is identical. The employee is protected from the
effect of a jurisdictional agreement entered into prior to a di spute. Such an agreement is
valid only to the extent that the employee invokes it in favour of a court other than one
on which jurisdiction is conferred by the Regulation or Convention (as to which see
Chapter 6).
5.65 Under Directive 96/7 1 a member State is obliged to provide to workers
posted to that state by an undertaking established in a member State such specified terms
and conditions as are laid down in that state. There is a right to enforce these
obligations in the state to which the member is pos ted (Article 6).109
(iii)Jurisdiction agreements in insurance and consumer contracts
5.66 Agreements contrary to the special provisions protecting (a) the insured,
beneficiary and in the Regulation the policy holder, and (b) the consumer are not
enforceable (see below "eemed domicile"and Chapter 6).
(iv) (Under the Convention) an agreement for the benefit of one party
5.67 Under the Convention the party solely benefiting had the right one to bring an
action in any contracting State having Conven tion jurisdiction presumably on the basis
that such a clause is meant to confer an option.
5.68 Under the Regulation that option is conferred through the provision for a
nonexclusive agreement (Article 23.1) thereby emphasising the control of the parties
rather than a rule linked to a category requiring interpretation. 110
(v)Jurisdiction through "appearance" 111
5.69 In Elefanten Schuh (fn. 48) it was held that appearance other than to contest
jurisdiction by a defendant to a suit by a plaintiff in a court other than that selected by
the agreement was voluntary submission overriding the agreement there being nothing in
the provision relating to jurisdiction by agreement preventing such a conclus ion.
(vi) (Under the Convention) persons domiciled in Luxembourg
5.70 Under the Convention effect of a jurisdiction agreement is qualified in the
case of persons domiciled in Luxembourg by Article I of the Annexed Protocol which
so far as relevant reads:
"An agreement conferring jurisdiction, within the meaning of Article 17, shall be
valid with respect to a person domiciled in Luxembourg only if that person has
expressly and specifically so agreed."
This clause must be accepted expressly and signed —the conclusion of a contract
containing such a clause is not sufficient (see Porta Leasing GmbH v. Prestige
International).112
5.71 The Annexed Protocol is omitted from the Regulation and the limitation in
regard to persons domiciled in Luxembourg applies only to the circumstances in which
the final place of delivery of goods or provision of services is in Luxembourg. In that
instance any jurisdiction agreement must "be accepted in writing" or evidenced in
writing within the meaning of Article 23(1)(a). 113 D. "Deemed domicile"—Contract
relating to insurance, consumer and individual employment
5.72 Under both the Regulation and Convention there are separate sections
governing jurisdiction in relation to insurance and consumer contracts and in addition in
the Regulation individual contracts of employment.
5.73 The sections take effect subject to the basic rule of reference of the question
of jurisdiction to forum law where the defendant is not domiciled in a Member State. 114
However, the applicability of the Regulation and Convention is extended from its
normal scope through a concept of "deemed domicile" of insurers suppliers under a
consumer contract and, in the Regulation, employers. So an insurer supplier or employer
not domiciled in a Member State is deemed to be so domiciled in respect of any dispute
arising from activities of a branch, agency or other establishment in a Member State. 115
5.74 Save for the deemed do micile and subject matter jurisdiction 116 the
jurisdiction in respect of the contracts within the specialised sections requires the
domicile of the defendant in a Member State. 117 E. Limitation of liability—the court
hearing the liability action
5.75 Article 7 of the Regulation reads:
"Where by virtue of this Regulation a court of a Member State has jurisdiction in
actions relating to liability from the use or operation of a ship, that court, or any other
court substituted for this purpose by the internal law of that State shall also have
jurisdiction over claims for limitation of such liability."
Apart from a slight change in terminology that reflects the Convention Article 6a.
5.76 A limitation claim will be within the ambit of the Regulation or Convention
provided it is against a defendant. It therefore may be brought in accordance with any
applicable jurisdiction base. The nature of a limitation claim is recognised by providing
that in addition it may be brought in the court having liability jurisdiction. The
jurisdiction base is therefore that of the liability action —this being a sensible gateway
to liability and limitation actions being heard by the same court. 118 2. The Domicile of
the Defendant in a Contracting State
5.77 The effect of Article 4 is subject to the Convention provisions (a) to apply the
Convention regime if a defendant is domiciled in a contracting State and (b) to allocate
jurisdiction to that state. Allocation is discussed in Chapter 6. The date for deciding on
domicile
5.78 The possible dates are the issue or service of proceedings (if different) or
when according to national law a court becomes seised of a case. Citing th e emphasis
by the European Court on the principle of certainty of which court has jurisdiction the
House of Lords held that the critical date is that of issue. 119 That date applies generally
to any provision basing jurisdiction on domicile.
5.79 So it applies to assert jurisdiction against a defendant on the fundamental
principle of domicile in the forum (Article 2). It also applies where jurisdiction is
claimed against a further defendant domiciled in another contracting State because of the
domicile of one defendant in the forum (Article 6(1)), whether or not the co -defendant is
joined as a party at the date of the initial proceedings or subsequently.
5.80 The House rightly pointed to the uncertainty for a plaintiff if the critical date
was service of process, or if in the case of subsequent joinder of defendants the date of
joinder. Fixing the date at the issue of the original proceedings "enables a plaintiff to
identify the court before which he wishes to bring the action and a defend ant reasonably
to foresee the court before which he may be sued". Secondly, if the date was service
there was a risk of a defendant evading process by changing domicile.
5.81 The conclusion seems indisputable, and follows not as a matter of domestic
English law but as an interpretation of the defendant being domiciled in another
contracting State (as is required for Article 6 to be applied). While whether or not such
domicile exists is a matter for the law of the state of asserted domicile, the releva nt date
is a matter for the Convention. "Standard of proof in establishing the jurisdictional
link—the "good arguable case"?
5.82 In Canada Trust Co. v. Stolzenberg (No. 2) 120 the House of Lords agreed
with the Court of Appeal in ap plying the standard of English law applicable to
jurisdictional issues under Rules of Supreme Court Order 11 —"a good arguable case"
.121 Waller L.J. commented that that standard applied to a preliminary jurisdiction point
whether or not that point would ar ise again substantively, but that where, as with
domicile, it will not, there would be a particular scrutiny of material" in the context of
the limitations applied to an interlocutory process. 122
5.83 The House dealt with the point through one paragraph in Lord Steyn’s
judgment. The approach of Waller L.J. in the Court of Appeal was approved, Lord Steyn
adding that if balance of probabilities was applied this would lead to delay through the
need to examine witnesses. The jurisdictional issues under the Conv ention though
important should be decided "with due despatch without hearing oral evidence" .
5.84 Waller L.J. pointed out that considering jurisdiction as a preliminary issue
was the exception—trials on jurisdiction were to be discouraged. When in a
jurisdiction context considering matters substantively at issue (e.g. existence of a
contract) the court should not appear to give a concluded view as to the merits. He
added that, while "good arguable case" was appropriate to the ex parte stage where
agreements are weighed, the question was "which side has a much better argument on
the material available"the court must be ‘"s satisfied as it can be’"having regard to the
limitations of the interlocutory process.
5.85 Despite the apparent strengthening of the standard where arguments are to be
weighed, without changing the criterion it is difficult to see any change save in the
evidence on which to base the decision. 123
5.86 However it seems somewhat strange to apply the label " interlocutory" to a
matter upon which the power to consider the substantive case depends. In essence the
matter could not be more critical or substantive. It is perhaps understandable that, where
the jurisdiction question depends on the substantive issue (as e.g. place of performance
of a contract or a harmful event), at the initial stage it is enough for the matter to be
considered substantively to show a good arguable case. Even in this context it is
questionable why the jurisdiction and substantive matters cannot be joined. Where
jurisdiction depends on a substantive contract or a jurisdiction agreement, 124 it seems
odd to apply a less rigorous standard to the question of whether a court has power to
consider an issue than to the issue itself the relevant court to decide if there is a contract
or agreement. There is no reason why a similar approach should not be adopted in
respect of other jurisdiction links.
5.87 It seems even more difficult to support the "arguable case" approach where
the jurisdiction issue is independent of the substantive matter. There seems no ground
for asserting jurisdiction simply on the basis that it is arguable that it exists. Indeed the
very rationale of such assertion where the jurisdiction and substantive issues overlap
surely points to the conclusion that the power to hear a case has at some time to be
decided. Further, in the context of the Community regimes whatever the national
tendency of English courts to assert jurisdiction, the "good arguable case" hardly seems
to fit with a structure concerned with establishment and allocation of jurisdiction
between the contracting States.
5.88 First, it simply increases the possibility of a clash of jurisdiction. 125
Secondly, insofar as the principle has been applied to an ind ependent jurisdiction
ground it has been domicile and in that context is dubious in reducing the link to
"arguably domiciled". It has even more dubious in relation to such grounds as the
mandatory "clear and precise" elements of a jurisdiction agreement or the domicile in
other states of co-defendants. In holding that a national court has power to decide
whether such jurisdiction exists, and that that issue should not become entangled with
the substantive matter, the European Court has not indicated that th at decision should be
on any basis save that of an assessment of and decision on factors creating
jurisdiction.126
5.89 Thirdly, even if the standard of proof is to be a matter for national law, to
treat independent jurisdictional issues as interlocutory a nd subject to some lesser
standard of proof would seem to impair the effectiveness of the Regulation and
Convention, the purpose of which is to establish and allocate jurisdiction. It has to be
remembered that under English law the good arguable case may be balanced by the
exercise of a discretion based on forum conveniens. Under the Community regimes
there is no such further step.
5.90 In the Canada Trust case the court cited the decision of the European Court in
Shevill v. Presse Alliance SA 127 for the proposition that "the "he standard of proof" is a
matter for national law. In Shevill the European Court held that where jurisdiction
depends on the place of a harmful event it is for the national court to decide the criteria
for assessing whether the event is harmful and the evidence which must be adduced to
succeed. The Court seemed to approach these issues as procedural and stressed t hat
they were for national law provided they did not impair the effectiveness of the
Convention. That applies equally to the Regulation.
5.91 First, to apply the statements in that case to support a holding that the
requirement of domicile is "arguable dom icile" is to apply a holding that elements of a
requirement are for national law to the requirement itself. 128 However, the requirements
of proof of a claim or fact on which jurisdiction depends is very different to substantive
reduction of the express requirement of "domicile" as a jurisdiction base. Secondly, the
criterion of "strong arguable case" in effect expressly denies the need for the
requirement, for ex hypothesi domicile does not have to be established. So, even if the
approach to domicile adopted by the English courts is within the scope of national law,
it surely impairs the Regulation or Convention. 129
5.92 It has been suggested in at least two cases before the High Court that the
standard is higher when seeking to establish a jurisdiction. 130 The basis for the argument is
that reliance on a jurisdiction agreement is a derogation from the primary rule of the
defendants’ domiciles.
5.93 In essence, however, that is reflected in the emphasis by the European Court
on the need to show that the requirements of the jurisdiction agreement are met. To
qualify the English approach to establishment of domicile by a stricter standard in
relation to that issue seems to emphasise that the lesser standard is inappropriate in the
first place. The concept of domicile
5.94 The concept of domicile is treated separately in the Regulation and
Convention for (a) individuals and (b) corporations and associations. In both instances
it is provided by the Convention that the concept is to be defined by national law. As
indicated in 5.72 the concept of domicile is extended through "deemed domicile" for the
purposes of the applicability of jurisdiction provisions to the categories of case in
regard to which there are special regimes —matters relating to insurance consumer
contracts and, in the Regulation individual employment contracts. 131
5.95 In the Regulation domicile of individuals is as in the Convention for national
law. However, to avoid conflicts of jurisdiction domicile of corporations a nd
associations is defined as an autonomous concept (Article 60) ( see 5.10 1). Domicile of
individual
5.96 Under the Regulation and Convention 132 a forum court:
(a) to determine if a party is domiciled in the forum must apply its internal law;
(b) if not so domiciled to determine if a party is domiciled in another Member
State must apply the law of that state. 133
The provisions of English law spelling out criteria of domicile are set out in
relation to the Brussels and Lugano Conventions in the Civi l Jurisdiction and Judgments
Act 1982 in sections 41, 44 and in relation to the Regulation in the Civil Jurisdiction
and Judgments Order 2001 Articles 9, 11. The provisions are in identical terms. They
have three functions:
(i) The necessary spelling out of the criteria of domicile for the purposes of the
Regulation or Convention for the purpose of ascertaining domicile in the United
Kingdom or in a non-member State;
(ii) The localisation of jurisdiction within the United Kingdom (i.e. England,
Scotland or Northern Ireland), a step necessary when jurisdiction is conferred on the
United Kingdom as a single State by virtue of the defendant’s domicile in a state or in a
place in a State;
(iii) The allocation of jurisdiction as between England, Scotland and Northern
Ireland in a dispute solely connected with the United Kingdom and as such outside the
Regulation or Convention.
(iv) The localisation within the United Kingdom of the provisions of "deemed
domicile" of insurers and suppliers under consumer contracts and for the Regulation
employees by virtue of a branch agency or other establishment within the United
Kingdom.
5.97 The Regulation and Convention criteria are discussed in this chapter and
localisation and intra United Kingdom jurisdiction allocation in Chapter 7. The general
criteria of domicile of individuals
Domicile in the United Kingdom
5.98 An individual is domiciled in the United Kingdom if and only if
"(a) he is resident in the United Kingdom; and
(b) the nature and circumstances of his residence indicate that he has a substantial
connection with the United Kingdom."
The same criteria are then applied to focus the domicile in a part of the United
Kingdom, i.e. in England and Wales, Scotland or Northern Ireland. Domicile in a place
requires domicile in the part where the place is and residence in that place.
5.99 To reduce the likelihood of a connection simply not being established because
of failure to satisfy the onus of proof, it is provided that present residence and past
residence for three months will create a presumption of substantial connection. To
prevent the possibility of a person being domiciled in the United Kingdom but failing to
satisfy the statutory criteria in respect of any part, a person who has no "substantial
connection" with a part is domiciled in that part in which he is resident.
Domicile in a state other than a Member State
5.100 Residence and substantial connection are the criteria also applied for the
purpose of deciding whether a person is domiciled in a state other than a contracting
State. Domicile of corporations and associations
5.101 Under the Regulation the domicile of "a company or other legal person or
association of legal persons" is domiciled at the place where it has its —
(a) statutory seat or
(b) central administration or
(c) principal place of business. 134
For the purposes of the United Kingdom or Ireland "statutory seat" is the registered
office of, if no such office, the place of incorporation or if no such place, the place
under the law of when the formation took place. This requires no implementation by
national law. The adoption of Community criteria is intended to avoid conflicts but
contrary to the wording unless the three criteria are to be applied as priorities the
possibility of a multi domicile is not prevented. The adoption of criteria relating to the
right of establishment in the Community seems to adopt criteria directed at a different
purpose.
5.102 Under the Convention the seat "of a company or other legal person or
association of natural or legal persons" is to be treated as its domicile. 135 In order to
determine the seat the court of a contracting State must apply its rules of private
international law.136 In implementing the Convention the 1982 Act 137 provides in effect for
English law to adjudge the issue subject to a negative veto by the law of a
contracting State in respect of any decision as to a seat in that state. The criteria for
domicile are either: (i) incorporation or formation and either registered office or
official address as defined; or (ii) central management and contr ol. From a Community
viewpoint a corporation or an association may be domiciled in more than one
contracting State because states may apply different criteria for domicile, and, in
accordance with 1982 Act, by English law there may be domicile both in the United
Kingdom and in another state. 138
5.103 So in the Regulation domicile may be established by wider criteria than the
Convention. The place of business may suffice and the statutory seat for United
Kingdom purposes may exist through either incorporation, formation or registered
office.
5.104 As for individuals, provision is made not only for domicile in the United
Kingdom but for domicile in a part of the United Kingdom (England and Wales,
Scotland or Northern Ireland) and a place in the United Kingdom. Provision is thus
made for the necessary foundation for localising jurisdiction in the appropriate part, the
criteria for domicile in a place for the purposes of applying the Regulation or certain
Convention jurisdiction bases and the adaptation by the Act to intra United Kingdom
disputes (as to which see Chapter 7).
5.105 Under the general autonomous (or Regulation) rule the "seat" of a company
or association is one of three criteria in identifying its domicile. However, for the
purpose of exclusive jurisdiction based on the subject matter of a claim (see 5.24) at the
place of the seat, the identification is left as in the Convention to the private
international law of Member States. It may be that the Regulation concept of domicile is
not appropriate to a provision based on one of its criteria. But it remains difficult to
understand why "seat" is not also a Community concept.
5.106 As regards the United Kingdom little is left to private internationa l law. In
relation to both Regulation and Convention for United Kingdom laws the seat is in the
United Kingdom or, subject to two provisos, another Member State "if and only if" it
was incorporated or formed in a part or its central control and management is exercised
in the United Kingdom or that Member State. However, it cannot be in another Member
State (i) if it was incorporated or formed in the United Kingdom or (ii) the courts of that
State would not regard it as having its seat there. So the possibil ity of a seat in two
States is limited under United Kingdom laws to (a) incorporation or formation in one
State and (b) central management and control in another. Once is shown as being in the
United Kingdom of the seat is exclusively there. Once it is sho wn that the State to which
either criterion points does not recognise the seat, that will be applied in United
Kingdom laws. 139 Domicile for the purposes of "exclusive" jurisdiction in company
proceedings
5.107 There are provisions in the Regulation and Co nvention for exclusive
jurisdiction in relation to the validity of the constitution, the nullity or dissolution of a
legal person or the decisions of their organs in the courts of its seat ( see 5.22, under
both Regulation and Convention this is a matter for state private international law).
Different statutory rules are provided for assessing the domicile of a corporation or
association for this rather than for other purposes. 140 It may be that the difference lies in
multiple exclusive jurisdictions. 141
5.108 The effect of the legislative provisions is both to broaden the scope of
English jurisdiction and to assert it exclusively. As a result while the possibility of
multiple jurisdiction recognised by English law is decreased, the risk of multiple
jurisdiction within the Community through divergence of national laws is increased.
5.109 The possibility of an association having a seat in both the United Kingdom
and another Member State in United Kingdom laws is reduced by the provision that a
seat in the United Kingdom by virtue of incorporation or formation means that there
cannot be a seat in another State. But a different view may be taken by that other State.
Domicile of trusts
5.110 Contrary to the provisions in respect of individuals, associations and legal
persons a trust may be domiciled in the United Kingdom only if domiciled in a part of
the United Kingdom. A trust is so domiciled only if the law of that part is the system
with which the trust has its "closest and most real connection". 142 Domicile of the
Crown
5.111 For the purposes of the Act and the Convention and subject to any Order i n
Council, the Crown in right of the government in the United Kingdom is domiciled and
has its seat in every part and place in the United Kingdom. The Crown in right of
Northern Ireland has its seat and is domiciled in every place in Northern Ireland. 143
Summary
5.112 In deciding whether an individual (other than a person whose domicile is
dependent on another) is domiciled in a Member State therefore an English court must
decide:
(a) whether in accordance with legislative provisions (including relevant the
deemed domicile provision) the defendant is domiciled in the United Kingdom;
(b) if not so domiciled, either
(i) (as provided by the Regulation and Convention) whether in accorda nce with the
law of any other Member State the defendant is domiciled in that state, or
(ii)whether in accordance with the relevant legislative provisions the defendant is
domiciled in a non-contracting State.
It is suggested that an English court shoul d only go to the issue of domicile in a
non-Member State if it finds that the defendant is not domiciled in the United Kingdom
or in a Member State.
5.113 In deciding whether a legal person, association or corporation is domiciled
in a Member State:
(i) for general purposes under the Regulation an English court will apply Article
60 and under the Convention, s.43 of the 1982 Act.
(ii) in relation to trusts the court will apply the legislative provisions
implementing the Regulation (Article 60.3) or the Convention (Article 53).
(iii) for the purposes of subject matter exclusive jurisdiction an English court will
apply the relevant legislative provision.
An English court must decide not only whether a defendant is domiciled in the
United Kingdom but also whether, if relevant, the defendant is domiciled in England so
as to give jurisdiction between England, Scotland and Northern Ireland. A similar
process will apply if the matter is within subject mat ter exclusive jurisdiction under the
Regulation or Convention, for the purposes of localising jurisdiction and for intra
United Kingdom disputes (see Chapter 7).
1. The Convention Article 2 is in substance identical, while Article 4 varies only
by the recognition in the Regulation that the provision relating to jurisdiction agreements
(Article 23) is an exception to the general rule as indeed it was (though not expressed as
such) in the Conventions.
2. Regulation Annex 1, Convention Art. 3.
3. Amended in the Regulation to Arts 3, 4, of Act 218 of 31 May 1995.
4. Commission Regulation 1496/2002 Art 1.
5. Commission Regulations 1937/2004 Art. 1.1, 2245/2004 Art. 1.
6. Regulation Art. 7 Convention Art. 6a.
7. Regulation Art. 67, Convention Art. 57.3.
8. See also 3.
9. OJ L 256/7 of 25.9.2002.
10.OJ L 337 of 13.12.2002.
11.OJ L 78/22 of 16.3.2004.
12.COM 2003/0375.
13.Because of that and the power in the Community to become a party the process
proposed differs to some degree from the other decisions, authorising participation.
14.If the "other Convention" applies it will ex hypothesi apply through the
national law but not necessarily to the same extent as in that law —so in the case of the
United Kingdom a Convention will apply directly only as enacted, the text of the
Convention may apply indirectly through Art. 57. See e.g. The Po [1991] 2 Lloyd’s Rep.
206 (as to which see infra).
15.Domicile is also irrelevant as regards multiple proceeding s (see Chapter 12)
recognition and enforcement of judgments ( see Chapter 28). Its relevance to provisional
or protective measures is qualified (see Chapter 14).
16.Articles 5, 13, 16, 17, 18.
17.Under the Convention landlord and tenant must be natural persons.
18.As to the Community concept of "seat" in Art. 53 see 5.24.
19.Reflecting Art. V(d) of the Convention Annexed Protocol.
20. See infra "Seat of a Corporation".
21.As e.g. did the English High Court in Coin Controls v. Suzo International
(UK) Ltd [1997] 3 All E.R. 45.
22.See Reichert v. Dresdner Bank 115/88 [1990] I.L.Pr. 105.
23.See e.g. Jarrett v. Barclays Bank [1997] I.L.Pr. 531 (C.A.).
24.Nor the performance of an asserted obligation to restore premises to their
original condition. Foundation Solomon Guggenheim v. Helion [1997] I.L.Pr. 157
(French Cour de Cassation).
25. Dansommer A/S v. Götz (Case C–8/98) [2001] 1 W.L.R. 1069 and in relation
to a holiday let such an action may be brought by the tour operator ( ibid.). A holiday
letting including a range of services will not be within the provision ( ibid.).
26. Reichert v. Dresdner Bank (fn. 15). A requirement of registration of judicial
proceedings in respect of land does not necessarily mean exclusive jurisdiction in the
state of registration (ibid.). See also Jarrett v. Barclays Bank (fn. 16) timesharer suing
creditor who lent money to buy the timeshare —not within provision.
27. Ashurst v. Pollard [2000] 2 All E.R. 112.
28. Sanders v. Van der Putte 73/77 [1978] 1 CMLR 331. For a similar restrictive
approach see Webb v. Webb [1994] 2 All E.R. 911. See also Rosler v. Rottwinkel
[1985] ECR 9; Lieber v. Grobel C292/93. Whether a tenancy exists is not a matter for
the conflict of laws rules of Member States but on the application or recognition of a
Community concept (see Jarrett (fn. 16)) concluding a timeshare is a tenancy within
Art. 16(1). See also Re a Claim for Payment for a Time Share [1995] I.L.Pr.
(Darmstadt District Court). But contracts falling outside the provision may be within
"consumer contracts" within the Regulation. See Chapter 6.
29. Speed Investments Ltd v. Formula One Holdings Ltd [2004] EWCA Civ.
1512.
30. The phrase "decision of their organs" does not encompass abuse —rather than
want or excess—of power: Grupo Torras S.A. v. Sheikh Al Sabah [1995] I.L.Pr. 667
(C.A.). As to the "object" of the proceedings, see ibid.; Newtherapeutics Ltd v. Katz
[1991] 2 All E.R. 151. As to an "organ" of a company see Papanicolaou v. Thielen
[1997] I.L.Pr. 37.
31. See infra.
33. So the jurisdictional links of domicile and the seat are specified by Regulation
or Regulation criterion but for Art. 22 the identification of the state in which the seat is,
is left to national law.
34. SI 2001/3929.
35. Text in substance identical with Convention Art. 16.3.
36. Jenard comments that the provision needs little comment (p. 35). Schlosser has
no comment.
37. See e.g. the discussion in Speed Investments (fn. 29) at first instance [2004]
EWHC 3215.
38. See Speed Investments (fn. 29).
39. So in adjudging priorities in a forced or judicial sale of a ship a question may
arise as to the validity of foreign registration of a foreign mortgage (see e.g. The Angel
Bell [1979] 2 Lloyd’s Rep. 491). It would destroy the concept of the forced sale to vest
jurisdiction of that issue in the place of registration. Cf. Conventions Relating to
Maritime Liens and Mortgages 1926, 1967 and 1993 . (See Part III.)
40. Text amended from Convention to incorporate Art. V(d) of Annexed Protocol
to provide for jurisdiction in respect of European Patents ( see n ).
41. But may extend to a case in which infringement was claimed but argued by the
defendant that it concerned validity. See Coin Controls Ltd v. Suzo International (UK)
Ltd (fn. 14); Re European Patent (UK) No. 189958 in the name of Akzo Nobel NV
[1997] TLR 522—an approach which could affect the construction of Art. 16(3).
42. Owens Bank v. Bracco [1992] 2 All E.R. 193 (see Chapter 4).
43. See also the jurisdiction to recognise a judgmen t. Enforcement procedure
applies to recognition of a judgment raised as a principal issue and when raised as an
ancillary issue the court hearing the principal issue has jurisdiction (Art. 33
(Convention Art. 26). As to enforcement in two states see Interpool Ltd v. Galani
[1987] 2 All E.R. 981). See Chapter 28.
44. AS Autoteile Service GmbH v. Malhe 220/84 [1986] 3 CMLR 321 (ECJ). So
there was no jurisdiction in the enforcement court to hear a claim for set off against the
order when the claim sought to be set off was not within the jurisdiction of the court.
45. Reichert v. Dresdner Bank (No. 2) 261/90 (ECJ) 26 March 1992; [1992]
I.L.Pr. 404.
46. I.e. an order to permit a creditor to inspect books to enforce an order for the
defendant to produce an account of commission due. See decision of Oberlandsgenicht
Nurnberg (1974) Case No. 9 V 167/75 ECD 1–16.5–B2.
47. Unchanged in the draft Regulation (Art. 24).
48. 150/80 [1981] ECR 1671; [1982] 3 CMLR 1.
49. For recognition that in English law protective measure jurisdiction is not
necessarily substantive jurisdiction see The Sargasso [1994] 2 Lloyd’s Rep. 6 (C.A.).
50. 27/81 [1981] ECR 2431 [1982] 3 CMLR 29.
52. See for an example of appearance to challenge jurisdiction The Sydney
Express [1988] 2 Lloyd’s Rep. 257.
53. CPR 10.1, 11.
54. For such acknowledgment see CPR 6 1.3(6).
55. See The Anna H [1995] 1 Lloyd’s Rep. 11 (C.A.) (referring to Ord. 75 but
principles remaining applicable) in which dicta to that effect take a different approach
to that of Clarke J. at first instance and that of Sheen J. in The Prinsengracht [1993] 1
Lloyd’s Rep. 41—both judges giving a more positive role to the voluntary nature of
joining issue through acknowledgment or obtaining release from arrest.
56. Kurz v. Stella Musical Veranstaltungs GmbH [1992] 1 All E.R. 630. Smay
Investments v. Sachdev [2003] 1 W.L.R. 1973. Contrast Esal Ltd v. Pujara [1989] 2
Lloyd’s Rep. 479 (C.A.)—reflecting an approach which is perhaps outdated. It is now
recognised that there may be “provisional remedy” jurisdiction without merits
jurisdiction. See fn. 49 and 9.115.
57. The Prinsengracht [1993] 1 Lloyd’s Rep. 41.
58. An optional alternative by agreement to the defendant’s domicile is through
agreement on the place of performance of a contract provided the place has a real
connection with the contract (see Art. 5(1) and Chapter 6).
59. See Powell Duffryn v. Petereit 2 14/89 [1992] ECR 1-1745 and infra. But it is
uncertain whether incorporation into the contract is a matter for European law. See
Custom Made Commercial Ltd v. Stawa Metallbau (Bundesgerichtshof) [1993] I.L.Pr.
490—referred to ECJ, but the Court did not find it necessary to answer this question.
See [1994] I.L. Pr. 516.
60. It is sufficient for the parties, relevant third parties and the court to identify the
selected court from objective evidence ( Coreck Maritime GmbH v. Handelsueen BV
and others (Case C-391/98). A German court has held that the agreement may relate
only to past or future disputes in connection with a particular contractual relationship
but not a general commercial arrangement. Re Missing Share Certificates
(Oberlandsgericht Munchen, 1989) [1991] I.L.Pr. 298. As to third parties see 5.58.
61. See e.g. Allpac Holding BV v. Maier Am Tor (C.A. Amsterdam) (1979) [1982]
ECC 200; Société Gola Werke Gotz KG v. André Barseghian (1979) Cour d'Appel
Lyon ECD 1-5.1.2-B25. Under the Convention (i) as to transitional jurisdictional effect
of a choice of law of part of the United Kingdom or Ireland made prior to entry into
force of the Convention see Art. 54; (ii) as to qualified application to persons domiciled
in Luxembourg see Annexed Protocol Art. 1.
62. Nor where two parties domiciled in the forum state opt for another.
63. See e.g. Re Import of Italian Sports Cars (Oberlandsgericht Stuttgart, 1990)
[1992] I.L.Pr. 188.
64. Zelger v. Salinitri 56/79 [1980] ECR 89; [1980] 2 CMLR 635; Transporti
Castelletti Spedizioni Internationali SpA v. Hugo Trumpy Spa [1999] I.L.Pr. 492.
65. 150/80 [1981] ECR 1671; [1982] 3 CMLR 1. Applied in Spedizioni (ECJ) fn.
52.
66. 25/79 [1979] ECR 3423; [1980] 2 CMLR 164.
67. The Bergen [1997] 1 Lloyd’s Rep. 380. For discussion see infra.
68. See Nurnberger Allgemeine Versicherungs AG v. Portbridge Transport
International BV Case C–148/03 Judgment 28 October 2004.
69. See n. 71.
70. i.e. Regulation Arts 22, 24 Convention Arts 16, 18.
71. Kurz v. Stella Musical Veranstaltungs GmbH [1992] 1 All E.R. 360 approved
by C.A. in Insured Financial Structures Ltd v. Elektrocie plocoyna Tychy SA [2003] 2
W.L.R. 656 (construing the Lugano Convention) citing Meeth v. Glacetal [1978] ECR
2133 (ECJ). See also Hantorex SpA v. SA Digital Research (Cour d’Appel Paris)
[1993] I.L.Pr. 501 (1991). But if one jurisdiction is chosen it will be "exclusive". IP
Metal Ltd v. Route Oz SpA [1993] 2 Lloyd’s Rep. 60 (decision affirmed [1994] 2
Lloyd’s Rep. 560).
72. Continental Bank NA v. Aeakos Compania Naviera SA [1994] 1 Lloyd’s Rep.
505 (C.A.). Followed in many decisions at first instance. See e.g. The Kribi [2001] 1
Lloyd’s Rep. 76; The Ivan Zagubanski [2002] 1 Lloyd’s Rep. 106. See also Governor
and Company of Bank of Scotland v. SA Banque Nationale de Paris [1996] I.L.Pr. 668
(Court of Session).
73. Case C 116/02. See further Chapter 12. The Court also held inconsistent with
the Convention any power to grant injunctions restraining participation in proceedings
in another Convention state (Turner v. Grovit Case C–159/02). That also clearly
applies to the Regulation (see further Chapter 25).
74. [1988] 1 CMLR 57. For an example of the inference of consent from the
required "formality" see I.P. Metal Ltd v. Ruote Oz SpA. Compare Ocarina Marine Ltd
v. Marcaid Stein and Co. [1994] 2 Lloyd’s Rep. 524 at p. 532.
75. But in the commercial context in which the contract is made AIG Europe S.A. v.
QBE International Insurance Ltd [2001] 2 Lloyd’s Rep. 268. And see 5.44.
76. See the European Court decision in Partenreederie MS Tilly Russ v. Haven
and Vervoerbedriff "Nova" and Germain Hout 71/83 [1984] ECR 2417, [1984] 3
CMLR 499 (hereafter "The Tilly Russ Case"); Ditta Estasis Salotti v. RUWA GmbH
24/76 (1976) ECR 1831, [1977] 1 CMLR 345; Galerier Segoura Sprl v. Bonakdarian
25/76 (1976) ECR 1851, [1977] 1 CMLR 361; Porta Leasing GmbH v. Prestige
International SA 784/79 1980 ECR 1517, [1981] 1 CMLR 135; F. Berghoefer GmbH
kA v. ASA C221/84 [1986] 2 CMLR 13; Iveco Fiat SpA v. Van Hool (fn. 40); Credit
Suisse Financial Products v. Societe General d’Entreprises [1997] I.L.Pr. 165
(English C.A.); Fulgurit v. La Companie d’Assurances PFA [1996] I.L.Pr. 495 (French
Cour de Cassation). See also cases cited by Schlosser, fns 45, 47.
77. See e.g. AIG Europe v. The Ethniki [2000] 1 All E.R. (Comm.) 65 upheld
[2000] 2 All E.R. 566 (C.A.).
78. AK Europe v. QBE (n ). See also Siboti K/S v. BP France SA [2003] EWHC
1278 (in which Community and English law on this matter was seen to be largely
identical.
79. See Castelletti v. Trumpy (fn. 82).
80. Although in a fairly restricted way. See Case No. 25/76 Segoura v.
Bonakdarian [1976] ECR 1851.
81. See e.g. Luz v. Bertram (Corte di Cassazione 1991) [1992] I.L.Pr. 537.
Compare company articles of association, shareholders being deemed to have more
detailed knowledge than parties to a commercial standard form contract: Powell
Duffryn plc v. Petereit 2 14/89 fn. 47.
82. MSG v. Les Gravieres Rhenanes SARL [1997] All E.R. (EC) 384—(oral
contract, written confirmation and invoices containing purported clause —amounts of
invoices repeatedly paid without objection) —principles followed and applied by the
European Court in Transporti Castelletti Spedizioni Internazionali SpA v. Hugo
Trumpy Spa Case C159/97 [1999] I.L.Pr. 492 (jurisdiction clause in standard bill of
lading). See also Societe Marcel Marie v. Societe Henco [1998] I.L.Pr. 807 (Cour
d’Appel Paris).
83. See MSG (fn. 82) Spedizioni (fn. 82).
84. It is not necessary that the course of conduct be established in particular
countries or all contracting States or for publicity to be given to standard forms —but
this may be evidence as to a course being followed by operators ( Spedizioni, fn. 82).
Usage does not cease to qualify simply because it is or has been challenged ( ibid.).
85. Ibid.
86. See the discussion in Transporti Castelletti Spedizoni (fn. 82) applying the
principles of MSG (fn. 82).
87. For application of the principle see e.g. Perfetto v. Parlapiano (Cour d’Appel
Liege 1990) [1993] I.L.Pr. 190; The Ice Express (District Court Livomo 1987) [1990]
I.L.Pr. 263—bill of lading, signed declaration expressly referring to the clause
sufficient. Jenmont-Schneider SA v. Ercole Marellu SpA (Corte di Cassazione 1990)
[1994] I.L.Pr. 12. Illegibility will mean no such consent. See Richard v. Pavan [1998]
I.L.Pr. 193 (French Cour de Cassation).
88. See e.g. The Ice Express. But see Spedag Scheepvaart en Expeditiebedrijf BV
v. Andria Reederei GmbH and Co. KG, 1985 (R.B. Rotterdam) [1986] ELD 206.
89. See Jenard, p. 38 Anema BV v. Broekman Motorships BV [1991] I.L.Pr. 285
District Court Rotterdam
1988. But see Bassini v. Santor [1986] ELD 354.
90. Benincasa v. Dentalkit Srl Case C269/95 (ECJ 3 July 1997). Such certainty
would be jeopardised if a party could frustrate the effect of selection by claimi ng that
the contract was void.
91. See Nikolaus Meeth v. Glacetal 23/78 [1978] ECR 2133; [1979] CMLR 52.
92. Meeth v. Glacetal (fn. 91)—an agreement allowing the French seller to sue in
France and the German buyer in Germany. Caportorti A.G. expressed the view (i) that
parties could select different courts for different disputes and (ii) selection of courts of
a contracting State is sufficient—but query for the United Kingdom —see text. In a
decision prior to Meeth a German court held that it was not sufficiently certain for
parties to opt for the court of the plaintiff’s domicile Oberlandsgericht Frankfurt (1978)
(9 ECD 1–1211 B8). This would appear as certain as the selection in Meeth.
93. See Ultisol Transport Contractors Ltd v. Bouygues OffShore SA (Clarke J.)
[1996] 2 Lloyd’s Rep. 139 (the point not arising in the C.A. as to which see Chapters
12, 25)—Art. 17 having no effect in a suit outside a contracting State in breach of an
agreement selecting a court of a contracting State.
94. But see The Atlantic Span, 1987 ETL 40, Rechtbank van Koophandel Antwerp,
24 February 1985—Swedish jurisdiction clause held not to comply with Art. 17.
Compare Re Exchange Control and a Greek Guarantor [1993] I.L.Pr. 298
Bundesgerichtshof.
95. Coreck Maritime v. Handelsveem Case C-387/98 [2000] ECR I–9337.
96. Case C–281/02. See further Chapter 12.
97. For such an appwach see KCM Plc v. Coromin [2005] EWHC 898 (Comm)—
but there qualifying the certainty by retention of the English power not to uphold the
agreement.
98. 201/82 [1983] ECR 2503; [1984] 3 CMLR 638.
99. Compare for a similar approach the inclusion of an indemnity action under Art.
6(2) (as to which see Chapter 6) within the scope of Art. 17 provided the clause in the
main contract is binding by national law ( Islanders Canning Corpn. v. Hoekstra
District Court Leeuwarden Netherlands ECD 1 –17.1.1–B4). Cf. Jenard, p. 27.
100.Schlosser thinks clearly not (para. 148).
101. Fn. 64.
102. Fn. 83—although it distinguished that case as being concerned with a
third party beneficiary of a forum clause in an insurance contract within the
Convention protective framework for such contracts, the Conve ntion specifically
contemplating insurance agreements for third party beneficiaries. It may be said that the
third party in Gerling Konzern was bound through the Convention while in Tilly Russ
by national law. As to insurance contract jurisdiction see Chapter 6.
103. The Tilly Russ case (fn. 76).
104. Coreck (fn. 95).
105. The binding effect is only on third parties succeeding to the shippers’
rights under national law unless there is express convert by the third party and it is for
the national court to determine which national law governs. (see Coreck Maritime GmbH
v. Handelvreem BV (Opinion Alber A.G.) 2000 I.L.Pr. 263).
106. See Coreck (Opinion Alber A.G.) fn. 88 (enough if registered office of
party in a contracting State).
107. See Glencore International AG v. Metro Trading International Inc.
and others [1999] 2 Lloyd’s Rep. 632. Further, it is arguable that a shipper would be
bound by a jurisdiction clause in a contract between the carrier and a subcontracting
carrier. See Dresser UK Ltd v. Falcongate Ltd [1991] 2 Lloyd’s Rep. 557 (the clause
there not being drafted sufficiently widely to create the obligation). As to consignees of
cargo see the Carriage of Goods by Sea Act 1992. As to beneficiaries under a contract
conferring rights see the Contracts (Third Party) Rights Act 1999 (but note the limitations
regarding its applicability to carriage by sea (s.6)).
109. The right is without prejudice of any right of enforcement in ano ther
state under any international convention.
110. A clause giving wider choice of courts to one party is for the benefit of
that party but not one simply providing for jurisdiction in the courts of the domicile of
that party—there being many possible reasons for such a choice Anterist v. Credit
Lyonnais Case 22/85 [1987] 1 CMLR 333; Banque Cantonal Vaudoise v. Waterlilly
Maritime [1997] 2 Lloyd’s Rep. 347; Lafiv. Meriden [2000] 2 Lloyd’s Rep. 51.
112. 784/79 [1980] ECR 1517; [1981] 1 CMLR 135 (ECJ); Weber v.
Eurocard [1993] I.L.Pr. 55 (Luxembourg, C.A.). Stricter requirement for agreements
for non- Luxembourg jurisdiction because, it was said, contracts by Luxembourg
domiciliaries tend to be performed in Belgium (see Jenard, p. 63). There is also a
qualification on Art. 5(1), see Chapter 6.
113. Art. 63. As to Art. 23 see 5.
114. See Brenner v. Reynolds 3 18/93 [1994] I.L.Pr. 720; Jordan Grand
Prix Ltd v. Baltic Insurance Group [1999] 1 All E.R. 289 (H.L.) and to the
extension of jurisdiction regarding a defendant domiciled in a contracting State in respect
of disputes arising out of the operation of a branch to the place of the branch. See Chapter
6.
115. For application of insurance provision see e.g. Berisford Plc v.
New
Hampshire Insurance Co. [1990] 2 All E.R. 321.
116. Each section directs that the jurisdiction is to be "etermined by this section"
(Regulation Arts 8, 15, 18, Convention Arts 7, 13).
117. Which is "egardless of domicile" —Regulation Art. 22, Convention Art. 16.
118. Although it may be used for a pre-emptive strike by the limitation claimant to
obtain jurisdiction in a particular state over the liability proceedings, see Chapter 6. As
to consideration of the two actions as “ related” and the resolution of multiple
proceedings see Chapter 12.
119. Canada Trust Co. v. Stolzenberg (No. 2) [2000] 4 All E.R. 481 (H.L.)
(construing identical provisions in the Lugano Convention).
120. [2000] 4 All E.R. 481 (H.L.); [1998] 1 All E.R. 318 (C.A.), applied in
Petrotrade Inc. v. Smith [1998] 2 All E.R. 346. There does seem some confusion with
a further aspect of establishing jurisdiction under RSC Ord. 11—that there is a serious
issue to be tried. See e.g. Molyncke AB v. Procter and Gamble [1992] 4 All E.R. 47
(C.A.) and perhaps surprisingly more recently Surzur Overseas Ltd v. Koros [1999] 2
Lloyd’s Rep. 611. See discussion in the Canada Trust Case and fn. 109
121. Seaconsar Far East Ltd v. Bank Markasi Jomdouri Islami Iran [1993] 4 All
E.R. 456 (H.L.).
122. [1998] 1 All E.R. at p. 326.
123. For that interpretation see King v. Crown Energy Trading AC [2003] EWHC
163.
124. As to contract see e.g. Effer v. Kantner [1982] ECR 825—jurisdiction to
decide if contract giving jurisdiction exists "having regard to conclusive and relevant
evidence" (applied to Lugano Convention by Norwegian court in Karlung v. Svensk
Vagguide Comentex AB [1999] I.L.Pr. 296; Custom Made Commercial Ltd v. Stawa
Metallbase [1994] I.L.Pr. 576. As to the approach of the French courts see GIE
Concorde v. The Master of the Vessel Suhadiwarne Panjan [1999] I.L.Pr. 141; as to
jurisdiction agreement see Benincasa v. Dentalkit Srl Case C269/95 (3 July 1997). It
would appear from Agrafax Public Relations Ltd v. United Scottish Society Ltd [1995]
TLR 297 (C.A.) that an English court might well take the view that a claimant has to
establish only a good arguable case that the elements exist.
125. Or, alternatively will operate to assert jurisdiction where another State
requires establishment of domicile. For an approach in relation to such domicile
without reference to the arguable case see Haji-Ioannou v. Frangos [1999] 2 Lloyd’s
Rep. 337.
126. For an application of Canada Trust to jurisdiction clauses see Roche
Products Ltd v. Provimi [2003] EWHC 961. An argument that the test in a jurisdiction
agreement (as derogating from other Convention or Regulation jurisdiction) was
balance of probabilities was noted but not considered in Knauf UK v. British Gypsum
Ltd [2001] EWCA Civ 1570.
127. Case 68/93 [1995] All E.R. (EC) 289.
128. As equivalent to Shevill would surely be the elements of "domicile"—not that
those elements need not be established.
129. In the Canada Trust case the court stressed the power of English courts to
control abuse of process, as demonstrated by Tesam Distributions Ltd v. Schuh Mode
Team GmbH [1990] I.L.Pr. 149; Gascoine v. Pyrah [1994] I.L.Pr. 82—but this operates
to limit jurisdiction based on Convention links by assertion (e.g. that a contract exists)
or manipulation (to evade the domicile of a defendant), not to avoid deciding whether a
link exists. In the terms applied in English law (and on occasion to Convention cases) it
goes to the question of a serious issue to be tried, see e.g. Zair v. Eastern Health and
Social Services Board [1999] I.L.Pr. 823 (C.A.) applying the Rewia [1991] 2 Lloyd’s
Rep. 325; Mecklermedia Corpn. v. D.C. Congress GmbH [1998] 1 All E.R. 148;
Surzur Overseas Ltd v. Koros [1999] 2 Lloyd’s Rep. 611. It may be that that issue must
be considered not only at the date of issue or service of the claim form but at the date of
hearing. See Zair; The Xing Sui Hai [1995] 2 Lloyd’s Rep. 15. See generally Chapters
9, 12. The reasoning applies to the Regulation.
130. See Knauf UK GmbH v. British Gypsum Ltd [2002] 1 Lloyd’s Rep. 907 first
instance; Bank of Tokyo-Mitsubishi Ltd v. Baskan Gilda Senayi [2004] 2 Lloyd’s Rep.
970.
131. As to the scope of the regimes see Chapter 6.
132. Regulation Art. 59, Convention 52.
133. It should be stressed that an individual may be domiciled both in the UK and a
Member or a non-Member State because first, of the different criteria which may be
employed for adjudging domicile as between the Member States and, secondly, because
by English law as set out in the Act it is possible that an individual may be domiciled in
the UK and another state.
134. A r t . 6 0 .
135. By statutory definition including a partnership under Scottish law and an
unincorporated body (1982 Act, s.50). Whether a partnership is included seems
doubtful on the wording of the Convention.
136. The three alternative criteria being the same as under the EC Treaty for
establishment within the Community (Art. 58). So the possibility is that multi domicile
will become a principle of Community law.
137. Section 42.
138. For examples of domicile because of central management and control in a
contracting State of a corporation incorporated and having its registered office in a non -
contracting State see The Rewia [1991] 2 Lloyd’s Rep. 325 (C.A.); The Deichland
[1989] 2 All E.R. 1066.
139. 1982 Act, s.43, SI 2001/3929 Art. 10. As to identifying the place of the seat
within the United Kingdom for the purposes of UK laws see 1982 Act, s.43 as amended
by SI 200 1/3929, Arts 6, 7, 16 (see Chapter 8).
140. For the Regulation SI 200 1/3929, Art. 10; for the Convention, 1982 Act, s.43.
141. See e.g. Hartley, p. 37.
142. 1982 Act, s.45, SI 200 1/3929, Art. 12.
143. 1982 Act, s.46. Under the Regulation the domicile of the Crown as a legal
person is defined (see supra).
Chapter 6
Regulation 44/2001 and the Brussels Convention—Jurisdiction Allocation in

Initial Proceedings
6.1 Once the Regulation 44/200 1 ("the Regulation") or the Brussels Convention
("the Convention") jurisdiction regime is applicable by virtue of a required connection
as discussed in Chapter 5 jurisdiction in initial proceedings is allocated according to
one of three differing criteria in accordance with:
a jurisdiction Convention taking precedence
mandatory allocation
provisions conferring (in specified circumstances) an option on the plaintiff.
Where a defendant is domiciled in a Member State 1 the main principle is that suit
should be brought there. Any provision (be it mandatory or optional) qualifying that
principle is to be construed with the aims of the Regulation or Convention in mind and
in particular that the qualification is a derogation from the central principle. 2 Save
where there are amendments the construction of the Conv ention will apply to the
Regulation. 1. Reference to Another Convention The Scope and Effect of the
Reference
6.2 The Regulation and Convention contain a number of provisions dealing with
the relationship with other Conventions concerning jur isdiction and judgments. 3 The
relationship of both to the subsequent Lugano Convention is considered in Chapter 8 in
the context of that Convention.
6.3 Both the Regulation and Convention provide (insofar as they apply) for the
superseding of specified Conventions4; and continuing others. Where they are continued
the Community jurisdiction and judgments regime takes effect subject to the other
Convention. When another Convention is given precedence it is so only to the extent of
"cases governed by the specialised Convention and not in those to which it does not
apply",5 the reference is subject to the reference by the Regulation and Convention of
cases to national law, i.e. it applies only if otherwise the Community regime would
apply. There is no room for a ny reference if, by Article 4 of either Regulation or
Convention, national law applies. The Regulation provisions read Conventions given
priority
Article 67
"This Regulation shall not affect the application of provisions governing
jurisdiction or the recognition or enforcement of judgments in specific matters and are 6
contained in Community instruments or in national laws harmonized in implementation
of such acts."
Article 71
"1 This Regulation shall not affect any conventions to which the Member States
7
are parties and which in relation to particular matters, govern jurisdiction or the
recognition or enforcement of judgments.
2 With a view to its uniform interpretation, paragraph 1 shall be applied in the
following manner—
(a) this Regulation shall not prevent a court of a Member State which is a party to a
convention on a particular matter from assuming jurisdiction in accordance with that
convention, even where the defendant is domiciled in another Member State which is
not a party to that convention. The court hearing the action shall, in any event, apply
Article 26 of this Regulation 8:
(b) judgments given in a Member State by a court in the exercise of jurisdiction
provided for in a convention on a particular matter s hall be recognised and enforced in
the other Member States in accordance with this Regulation.
Where a convention on a particular matter to which both the Member State of
origin and the Member State addressed are parties lays down conditions for the
recognition or enforcement of judgments, those conditions shall apply. In any event, the
provisions of this Regulation which concern the procedure for recognition and
enforcement of judgments may be applied.
6.4 Under the Convention priority is given to some agr eements and instruments
concerning jurisdiction and judgments whether entered into before or after the
Convention. However, under the Regulation this priority is limited to those entered into
prior to the Regulation. So priority is given to Community instr uments whenever made
but in relation to Conventions only those in force on 1 March 2002 i.e.
(i) Conventions on jurisdiction and judgments in relation to particular matters
(ii) Conventions for the non -recognition of judgments based on national
jurisdiction extended by the Convention (see Chapter 28)
(iii) Community instruments on jurisdiction and judgments on specific matters —
this now being a matter for Regulations, Directives and Decisions.
The restricted approach reflects the exclusive force to be given to Community
legislation but it creates substantial problems in relation to multilateral Conventions on
matters of critical importance, particularly to world environment and trade.
6.5 This problem has been met in relation to three substantive Conventions by
Council Decisions authorising Member States to become parties, and by provision for
the Community to become a party ( see Chapter 1). But it leaves problems still to be
resolved in relation in particular to the Arrest Conventions 1952 and 1999, the former
of which was part of the Community maritime jurisdiction structure prior to the
Regulation. In relation to the Arrest Convention 1999 the problem is the same for all
Member States particularly those with a strong maritime interest. The issue in relation
to the 1952 Convention is restricted to those Member States which acceded in 2004 but
were not then parties to the Arrest Convention. The consequence of different rules
applying to Member States in this area is not one which fits easily into the concept of
common rules for Community jurisdiction. It calls for resolution along the lines of the
Council decisions already made, although this would be authorising becoming party to a
Convention geared, at least in part, to jurisdiction not found in the Regulation. The
scope of the priorities
6.6 There is no uncertainty in respect of (ii) recognition of judgments as these
relate to judgments in proceedings based on a specific and limited Convention base,
deleted from the Regulation. The only possible uncertainties as to (iii) Community
instruments are those in relation to Conventions on particular matters (see 6.5).
6.7 There remain some uncertainties as to the scope of priority for Co nventions on
particular matters. 9 It is of considerable importance in the enforcement of maritime
claims in English law because of a growing tendency to include provisions relating to
jurisdiction in maritime Conventions dealing with substantive matters. P riority is given
only to Conventions relating to "particular matters". 10
6.8 The first question is whether a relevant Convention "governs jurisdiction"
either in respect of the merits of a claim or protective or provisional measures. The
issue will primarily arise in the context of merits as in the case of provisional measures
Convention jurisdiction hinges on the law of Member States. The possibility of
inconsistency is slight.11
6.9 Apart from express jurisdiction provisions it may be arguable that mandatory
application of substantive rules implies jurisdiction control. 12 Assuming that the "other"
Convention governs jurisdiction whether rules of the other Convention override, are
additional to or are alternative to the Regulation depends on the other Convention. 13 If
the other Convention sets out exclusive rules the Regulation is overridden. 14 If they are
not exclusive or do not set out a complete jurisdiction framework, questions of the
degree of reference to the "other Convention" necessarily arise. This is particularly so if
the framework of the other Convention is permissive. The interpretative provisio ns
underline the superiority of the other Convention in providing that the other Convention
may apply even if a defendant is domiciled in a Member State not a party to the other
Convention.
6.10 Further, subject to any express provisions, the plaintiff’ s domicile is
irrelevant to the priority given. This will mean that a Convention to which the United
Kingdom is a party will apply so that it and not the Regulation will govern the
jurisdiction of a case within it whether or not the state of domicile or na tionality of the
plaintiff is a Member State. In addition, in the view of the English courts unless the
other Convention so specifies there will be no requirement that that state is a party to the
other Convention. 15
The ambit of the priority is that of th e Convention at issue and not that of the
application under national law. In The Po16 the Court of Appeal held that it does not
matter for the application of the other Convention that it has not been enacted into
English law. It was enough that the United Kingdom was a party to it, that jurisdiction
was authorised by it and that jurisdiction had been created by service of a writ in
accordance with English law. The court did not find it necessary to hold that the effect
of the priority through the Brussels Convention was to incorporate the other Convention
into English law. 17 2. Conventions Relevant to Enforcement of Maritime Law
Claims
The Convention Relating to the Arrest of Sea -going Ships 1952 (the Arrest
Convention).
International Convention on Arrest of Ships 1999 (the Arrest Convention 1999).
International Convention on Certain Rules Concerning Civil Jurisdiction in Matters
of Collision 1952 (the Collision Jurisdiction Convention 1952).
The International Convention of Civil Liability for Oil Pollution Damage 1969 and
1992, those states parties to the 1992 Protocol ceasing to be parties to the 1969
Convention as from 16 May 1998.
The International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage 1992. 18
Conventions concerning nuclear incidents and material, particularly:
(i) the Paris Convention 1960 on Third Party Liability in the field of Nuclear
Energy (as supplemented by the Brussels Convention 1963 and Additional Protocol of
1964) (the Paris Convention) 19;
(ii) the Vienna Convention on Civil Liability for Nuclear Damage 1963 (as
amended by a Protocol of 1997) (the Vienna Convention);
(iii) the Convention Relating to the Liability of Operators of Nuclear Ships 1962
(not in force).
Conventions concerning carriage of goods by sea:
(i) The Hague Rules 1924 and Hague -Visby Rules 1968;
(ii) The Hamburg Rules 1978;
(iii) The Multimodal Conven tion 1980;
(iv) The CMR (Carriage of Goods by Road) as relevant to carriage by sea.
Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974
(the Athens Convention and Protocol).
International Convention on Salvage 1989.
The Convention on the Limitation of Liability for Maritime Claims 1976 (the
Limitation Convention), and Protocol of 1996 (the Limitation Protocol).
International Convention for the Unification of Certain Rules Relating to Maritime
Liens and Mortgages 1926, 1967 and 1993 (the Liens and Mortgage Conventions).
The Rhine Navigation Convention 1868 (otherwise known as the Mannheim
Convention).20
United Nations Convention on the Law of the Sea 1982 (the Law of the Sea
Convention).
International Convention on Liability and Compensation for Damage in connection
with the Carriage of Hazardous and Noxious Substances by Sea 1996 (the HNS
Convention).
International Convention on Civil Liability for Bunker Oil Pollution 2001.
Convention on the Liability of Operators of Transport Terminals in International
Trade 1994.
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents
in Civil and Commercial Matters 1965 (the Service of Documents Convention) (which
while not "maritime" in focus applies to proceedings generally). 21
6.11 The problem of conflict of Conventions is increasingly met in maritime law as
is shown by the difficulties faced by EU Member States in becoming parties to
multilateral conventions with jurisdiction clauses inconsistent with the Regulation ( see
6.5). The obvious method of dealing with the problem in general is to incorporate a rule
of precedence in the later Convention giving superiority to the earlier. One possible b ut
perhaps unlikely problem with this solution is that if the States parties to the later
Convention are not identical to the earlier Convention the consequences may be that no
court has jurisdiction or that the parties to the later will not agree to that priority.
Without some rule of precedence, however, a State party to both Conventions will face
a conflict of jurisdictional rules insofar as mandatory frameworks differ. 1. The Arrest
Convention 1952
6.12 The Convention provides for jurisdiction over the merits of a "maritime
claim" (as defined in Article 1) through arrest. 22 Article 7 provides:
"(1) The Courts of the country in which the arrest was made shall have jurisdiction
to determine the case upon its me rits if the domestic law of the country in which the
arrest is made gives jurisdiction to such Courts, or in any of the following cases namely:
(a) if the claimant has his habitual residence or principal place of business in the
country in which the arrest was made;
(b) if the claim arose in the country in which the arrest was made;
(c) if the claim concerns the voyage of the ship during which the arrest was made;
(d) if the claim arose out of a collision or in circumstances covered by Article 13
of the International Convention for the unification of certain rules of law with respect to
collisions between vessels, signed at Brussels on September 23, 1910;
(e) if the claim is for salvage;
(f) if the claim is upon a mortgage or hypothecation of t he ship arrested.
(2) If the Court within whose jurisdiction the ship was arrested has no jurisdiction
to decide upon the merits, the bail or other security given in accordance with Article 5
to procure the release of the ship shall specifical ly provide that it is given as security
for the satisfaction of any judgment which may eventually be pronounced by a Court
having jurisdiction so to decide; and the Court or other appropriate judicial authority of
the country in which the arrest is made sh all fix the time within which the claimant shall
bring an action before a Court having such jurisdiction.
(3) If the parties have agreed to submit the dispute to the jurisdiction of a particular
Court other than that within whose jurisdiction the arrest was made or to arbitration, the
Court or other appropriate judicial authority within whose jurisdiction the arrest was
made may fix the time within which the claimant shall bring proceedings.
(4) If, in any of the cases mentioned in the two preceding par agraphs, the action or
proceedings are not brought within the time so fixed, the defendant may apply for the
release of the ship or of the bail or other security.
(5) This article shall not apply in cases covered by the provisions of the revised
Rhine Navigation Convention of October 17, 1868." 23
6.13 The Convention applies to specified maritime claims and to any vessel flying
the flag of a contracting State in the jurisdiction of a contracting State, and provides that
subject to reservations a ship flying the flag of a non-contracting State may be arrested
for any of the maritime claims enumerated in the Convention. 24
6.14 By Article 7 the Convention provides for mandatory jurisdiction on the merits
in the country of the arrest in respect of the circumstances listed in (1)(a) –(f) and,
subject to this, delegates the issue of jurisdiction to domestic law. It impliedly
recognises the validity of a jurisdiction clause (Article 7(3)) 25 but lacking any
requirement it seems that this is simply a recognition of security consequences should
such an agreement be enforceable under domestic law. 26 The Arrest Convention and the
Brussels Convention
6.15 In The Bergen27 Clarke J. held that the "exclusive" jurisdiction conferred in
relation to jurisdiction agreements (Article 17) of the Brussels Convention was
inconsistent with jurisdiction under Article 7 of the Arrest Convention to determine the
case in accordance with domestic law. It followed that by Article 57 of the Brussels
Convention the jurisdiction of the Arrest Convention prevailed. The lack of any
"jurisdiction agreement" provision in the Arrest Convention was irrelevant because of
the removal of jurisdiction conferred through that Convention by Article 17 of the
Brussels Convention.
6.16 In the Maciej Rataj28 the provision of the Brussels Convention setting priority
between courts considering the same case (Article 21) was applied by the European
Court as there was no such provision in the Arrest Convention. Clarke J. distinguished
that case on the grounds that while it dealt with declining established jurisdiction; in
The Bergen jurisdiction was removed. But with respect that is a distinction without a
difference—for under Article 21 jurisdiction is removed from a court second seised.
The logical conclusion of the approach in The Bergen is that where there is a special
Convention, for a jurisdiction ground of the Brussels Convention to be enforced it must
also appear in the special Convention—that seems the direct opposite to the rationale of
the European Court.
6.17 The Arrest Convention forms an important part of the Brussels jurisdiction
framework and save Austria all the contra cting States are parties to it, enabling the
maintaining of jurisdiction in relation to maritime claims based on arrest of seagoing
ships while removing any general jurisdiction based on seizure or arrest of property.
The Convention as presently drafted re quires the arrest of a ship for jurisdiction to be
established. While once arrested it is provided that the ship may (or must) be released
on bail or other security being given there is no jurisdiction if the ship is not arrested
because of the giving of bail or such security.
6.18 Further, it has been held by the Court of Appeal that to establish merits
jurisdiction there is no requirement that the arrest must be to obtain security. But this
ignores the positive link between arrest and adequate security ei ther to obtain release or
present arrest provided by the direction that any arrested should be "set aside". 29 The
Arrest Convention is further discussed in Chapter 15. The Arrest Convention and
Regulation 4 4/2001
6.19 As regards states which were on 1 Mar ch 2002 EU Member States who as
from that date became bound by the Regulation the Arrest Convention takes the same
priority on relation to the Regulation as for the Brussels Convention. The Arrest
Convention has the same priority in relation to states which acceded to the EU on 1
March 2004 and which were then parties to the Arrest Convention. 30 Decisions
construing the Arrest Convention and its application apply.
6.20 Those acceding states which were not parties to the Arrest Convention have a
considerable problem should they wish to become parties. It would seem that doing so
would be inconsistent with EU law because of the binding effect of the Regulation and
the limitation of priority of the Arrest Convention to parties prior to the Regulation. 31
The only step would seem a Council Decision along the lines of those permitting
Member States to become parties to the HNS and Bunkers Conventions and 2002 Fund
Protocol (as to which see 5.12).
6.21 However, the EU should recognise the part played by the Arrest Convention
in the jurisdictional structure reflected in the Brussels Convention. There is every
reason to continue that—a conclusion supported to a degree by the continued provision
in the Regulation relating to arrest of cargo or freight. To continue that without
provisions of arrest of ships applies a relatively small part of arrest jurisdiction but
ignore the main part because of which the arrest provis ion was initially included in the
Brussels Convention. 2. The Arrest Convention 1999 (not yet in force)32
6.22 The format is amended but remains broadly similar. There are a number of
changes of substance relating to jurisdiction over the merits. The struc ture is set out in
Article 7(1)–(3):
1. The Courts of the State in which an arrest has been effected or security provided
to obtain the release of the ship shall have jurisdiction to determine the case upon its
merits, unless the parties validly agree or have validly agreed to submit the dispute to a
Court of another State which accepts jurisdiction, or to arbitration.
2. Notwithstanding the provisions of paragraph 1 of this article, the Courts of the
State in which an arrest has been effected, or securit y provided to obtain the release of
the ship, may refuse to exercise that jurisdiction where that refusal is permitted by the
law of that State and a Court of another State accepts jurisdiction.
3. In cases where a Court of the State where an arrest has b een effected or security
provided to obtain the release of the ship:
(a) does not have jurisdiction to determine the case upon its merits; or
(b) has refused to exercise jurisdiction in accordance with the provisions of
paragraph 2 of this article,
such Court may, and upon request shall, order a period of time within which the
claimant shall bring proceedings before a competent Court or arbitral tribunal.
The changes are:
(i) the introduction of a Convention " arrest" jurisdiction replacing the ref erence to
"national law"
(ii) as a balancing factor to (i) the power to decline to exercise the Convention
jurisdiction if permitted by national law
(iii) the prohibition of "arrest" jurisdiction where there is a valid arbitration
agreement or a valid jurisdiction agreement and the court selected accepts jurisdiction.
Like the 1952 Convention the jurisdiction depends on arrest, security being given
to prevent arrest not be being sufficient. As said above in the context of the purpos e of
arrest, the Conventions specifically recognise that adequate security provides a ground
for non-arrest or release, 33 the failure to provide for jurisdiction on preventative
security seems odd.34 It means that the construction of the 1951 Convention that to create
jurisdiction on the merits arrest need not be for the purpose of security still may apply —
but is still as dubious (see supra). The Brussels Convention and Regulation 44/2001
6.23 Insofar as the Brussels Convention continu es in force once the Arrest
Convention 1999 is in force it will take priority. However, despite the accession of
three EU Member States it would seem that the Arrest Convention has no force as
regards other EU States. Indeed, it would seem that the act of accession is contrary to
EU law,35 and that the only way forward is through Council Decisions ( see 6.20). 3.
The Collision (Civil Jurisdiction) Convention 1952
6.24 Articles 1, 2 and 3 provide:
"Article 1
place of business;
(c) or before the Court of the place of collision when the collision has occurred
within the limits of a port or in inland waters.
(2) It shall be for the plaintiff to decide in which of the Courts referred to in para.
1 of this article the action shall be instituted.
(3) A claimant shall not be allowed to bring a further action against the same
defendant on the same facts in another jurisdiction, without discontin uing an action
already instituted.
Article 2
The provisions of Article 1 shall not in any way prejudice the right of the parties to
bring an action in respect of a collision before a Court they have chosen by agreement
or to refer it to arbitration.
Article 3
(1) Counterclaims arising out of the same position can be brought before the Court
Article 1.
(2) In the event of there being several claimants, any claimant may bri ng his action
before the Court previously seized of an action against the same party arising out of the
same collision.
(3) In the case of a collision or collisions in which two or more vessels are
involved nothing in this Convention shall prevent any Co urt seized of an action by
national laws in further actions arising out of the same incident."
6.25 The Convention applies "as regards all persons interested when all the
vessels concerned in any action belong to States of the High Contracting parties" and
may be made applicable to persons interested belonging to a non -contracting State
(Article 8).36 The Convention jurisdiction framework recognises multiple claims and
proceedings and jurisdiction agreements. In respect of such an agreement the
Convention does not specify either formal requirements or any criteria for validity.
Further, whether under the Collision Convention such an agreement is mandatory seems
uncertain. The provision may be read as either creating a Convention right as simply
referring to such forum rights as may exist. The role of forum non conveniens is
similarly uncertain again depending on whether the Convention provision confers an
unassailable right. The Brussels Convention
6.26 The jurisdiction framework of the Collision Jurisdiction Convention raises
the issue as to whether it is incorporated into the Brussels Convention together with
additional requirements stemming from the latter (as, for example, relating to
jurisdiction agreements) or whether only that which is prescribed should be taken to be
all that is necessary. It would seem more practical to take the latter view —that in
respect of a Convention given priority, the question of jurisdiction should be referred to
that framework exclusively. 37 Otherwise even more complex issues will arise in
seeking to fit part of the Brussels Convention framework into other Convention
frameworks.
Of the contracting States to the Brussels Convention Austria, Finland, the
Netherlands and Sweden are not parties. Regulation 44/2001
6.27 Identical comments apply as to the made in relation to the Arrest Convention
Collision Convention are Cyprus, Poland 2004. position of States acceding in 2004 as
those 1952 (see 6.20). Of those States parties to the and Slovenia, all becoming so
before 1 May 4. The Liability and Fund Oil Pollution Conventions 1992
6.28 The Liability Convention 1969 provided a structure of substantive rules in
respect of liability for oil pollution from ships creating damage to the territories of
contracting States. 38 This was extended by amendment of Article II by Protocol to
include the exclusive economic zone or equivalent area. 39 Jurisdiction is limited by the
Convention to the state or states in which the damage or preventative measure occurs.
6.29 Through the 1992 Protocol the 1969 Convention is being replaced by the
1992 Convention. Article IX of the 1992 Convention provides:
"1 Where an Incident has caused pollution damage in the territory including the
territorial sea or preventive measures have been taken to prevent or minimize pollution
damage in such territory of one or more Contracting State or an area referred to in
Article II, including the territorial sea or area, actions for compensation may only be
brought in the Courts of any such Contracting State or States. Reasonable notice of any
such action shall be given to the defendant. 40
2 Each Contracting State shall ensure that its Courts possess the necessary
jurisdiction to entertain such actions for compensation.
3 After the fund has been constituted in accordance with Article V 41 the Courts of
the State in which the fund is constituted shall be exclusively competent to determine all
matters relating to the apportionment and distribution of the fund." The Brussels
Convention
6.30 Save for Austria and Luxembourg all the parties to the Brussels Convention
are parties to the 1992 Convention. Luxembourg is a party to the 1969 Convention and
1976 Protocol. Regulation 44/2001
6.31 The Convention takes priority as regards those states whi ch were parties
prior to the Regulation binding them. The only EU member States that were non parties
at the appropriate date are Austria, Luxembourg, Czech Republic, Estonia and Slovakia.
6.32 The Fund Convention 1971 provided for the establishment of a f und to meet
claims for damage in cases where the Liability Convention is inadequate and to give
relief to shipowners in respect of additional financial burdens imposed by the Liability
Convention.42 Through the 1992 Protocol, the 1971 Convention is replaced by the 1992
Convention, although present both the 1971 and 1992 Funds continue to operate and the
Supplementary Fund under the 2003 Protocol. The 2003 Protocol came into force on 3
March 2005.
6.33 A third tier of compensation is pr ovided by the 2003 Protocol —a
Supplementary Compensation Fund —to meet the lack of full compensation resulting
from defects in the operating of the structure of the Liability and earlier Fund
Conventions (see 2.156). An action against either fund may be bro ught only in the court
competent to hear the liability claim. 43 Necessary further provision is made for an
action brought in a court of a state party to (i) the Liability Convention but not (as
applicable to the claim) the Fund Convention 1992 of the 2003 Protocol (ii) the Fund
Convention 1992 but not the 2003 Protocol. The action may be brought in a court of the
State where the Fund has its headquarters (currently the United Kingdom) or any court
of a contracting state (as applicable to the claim) the Fund Convention 1992 or the
Protocol competent under the Liability Convention. 44 The Brussels Convention
6.34 Save for Austria and Luxembourg all the present parties to the Brussels
Convention are parties to the 1992 Convention and Finland, France, Germany, Po rtugal
and Spain are parties to the 2003 Protocol.
6.35 A critical issue is whether the link between damage or measure and the state
court having jurisdiction under the Liability and Fund Conventions replaces the 1968
Convention framework as "governing jur isdiction" or in the circumstances simply
represents an additional contact requirement. In substance the prerequisite for action is
that of the conventional optional jurisdiction ground applicable to tort, i.e. the place of
the harmful event (see Article 5(3) and Chapter 6). It would seem therefore that this is a
sufficient jurisdiction link to take the matter out of the 1968 Convention and to the extent
of those aspects covered to refer the matter to the Oil Pollution Conventions. Further,
the required link between territory and damage lies at the jurisdictional heart of the Oil
Pollution Conventions. It is therefore suggested that the Oil Pollution Conventions do
"govern jurisdiction" within the Community meaning and to the extent of their provision
replace the Community jurisdiction regimes. The Regulation
6.36 Of the Member States bound by the Regulation as from 1 March 2002 only
Portugal became a party to the Liability and Fund Conventions subsequent to that date
(on 13 November 2002). Of the states acceding in 2004 Cyprus, Latvia, Lithuania,
Malta, Poland and Slovenia are parties and all became so prior to being bound by the
Regulation on 1 May 2004. Estonia is a party to the 1969 Conventions. No Member
State became a party to the 20 03 Protocol before being bound by the Regulation.
Council Decision of 2 March 2004 permits and allows the States to become parties
(5.12). 5. Conventions concerning nuclear material and ships
6.37 Damage occurring on the high seas falls within the Paris 45 and Vienna46
Conventions (as amended) they restrict jurisdiction over claims primarily to the courts
of the contracting State in which the nuclear incident occurred. Failing placing the
incident in a contracting State, jurisdiction lies in the state in wh ich the nuclear
installation of the operator liable is placed. The Convention relating to the Liability of
Operators of Nuclear Ships 1962 (not in force) includes a provision limiting
jurisdiction to the state in the territory of which damage is sustained or the state
licensing the operator (Article X). The Brussels Convention
6.38 Contracting States to the Brussels Convention which are parties to the Paris
Convention and its amendment in 1963 are Belgium, Denmark, Finland, France,
Germany, Netherlands, Spain and Sweden. Greece and Portugal are parties only to the
Paris Convention. No contracting State is a party to the Vienna Convention. 47
6.39 In addition to the Member States parties to the Brussels Convention ( see 6.38)
Slovenia is a party to the Paris Convention. The Czech Republic, Estonia, Hungary,
Latvia, Lithuania, Poland and Slovakia are parties to the Vienna Convention and were
parties prior to 1 May 2004. The Bunkers Convention 2001
6.40 The aim of the Convention is to ensure effective compensation for damage
caused by spills of oil when carried as bunkers. It is not yet in force. There are
provisions for jurisdiction and recognition of judgments inconsistent with Regulation
44/200 1 and the Brussels Convention. Ju risdiction in respect of actions for
compensation is conferred and limited to the territory or exclusive economic zone, the
State party in which it occurred. When in force the Convention will take priority over
the Brussels Convention. Any ratification by an EU Member State will be inconsistent
with Regulation 44/2001. However, by Council Decision of 19 September 2002
Member States are authorised to ratify or accede to the Convention ( see 1.??). 6.
Conventions concerning carriage of goods by sea (i) The Hague Rules 1924 and
Hague- Visby Rules 1968
6.41 There are no express jurisdiction provisions in the Hague or the Hague -Visby
Rules. However, Article III, rule 8 provides:
"8. Any clause, covenant, or agreement in a contract of carriage relieving the
carrier or the ship from liability for loss or damage to, or in connection with, goods
arising from negligence, fault, or failure in the duties and obligations provided in this
article or lessening such liability otherwise than as provided in these Ru les, shall be
null and void and of no effect. A benefit of insurance in favour of the carrier or similar
clause shall be deemed to be a clause relieving the carrier from liability."
6.42 In The Morviken48 the House of Lords held that by virtue of Article 3(8) a
jurisdiction and choice of law clause was invalid insofar as it could lead to the
imposition of a lower limit of liability than specified in the rules. 49 To the extent to
which the effect of the rule invalidates a jurisdiction clause it is clear that in English
law the rules "govern jurisdiction". The question of whether the rules qualify as a
Convention governing jurisdiction within Article 57 is in effect a question of whether
the Morviken approach would be that of the European Court. If not, in English law there
is a clear conflict of statutory jurisdictional frameworks. The Brussels Convention and
Regulation 44/200 1
6.43 Of the parties to the Brussels Convention: (i) Belgium, France, Germany,
Ireland, Luxembourg, Portugal and Spain remain parties to the Hague Rules 1924. (ii)
Belgium, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, the
Netherlands, Spain, Sweden and the United Kingdom are parties to the Hague -Visby
Rules.
6.44 In addition to the Member States parties to the Brussels Convention
Convention Cyprus, Hungary, Latvia, Lithuania, Poland and Slovenia are parties to the
Hague Rules and of these only Lithuania became a party after 1 May 2004. Latvia and
Poland are parties to the Hague-Visby Rules both acceding prior to 1 May 2004. (ii)
The Hamburg Rules 1978
6.45 This Convention, intended to replace the Hague and Hague -Visby Rules,
entered into force on 1 November 1992.
The Rules provide a jurisdiction regime. 50 Article 2(1) reads:
"1. In judicial proceedings relating to carriage of goods under this Convention the
plaintiff, at his option, may institute an action in a court which, according to the law of
the State where the court is situated, is competent and wit hin the jurisdiction of which is
situated one of the following places:
(a) the principal place of business or, in the absence thereof, the habitual residence
of the defendant; or
(b) the place where the contract was made provided that the defendant has there a
place of business, branch or agency through which the contract was made; or
(c) the port of loading or the port of discharge 51; or
(d) any additional place designated for that purpose in the contract of carriage by
sea."
6.46 Article 2 1(2) provides for the institution of an action in the state where the
ship is arrested subject to the right of the defendant to remove it to one of the courts
specified in Article 21(1) on the lodging of adequate security. It is expressly provide d
that no action may be brought except in one of the places specified (Article 2 1(3)). A
jurisdictional agreement made after the claim has arisen is effective (Article 21(5)).
6.47 The Rules provide a jurisdictional framework to displace that of the 1968
Convention insofar as any contracting State becomes a party. No new action may be
started on the same grounds between the same parties (Article 21(4)) which reduces the
likelihood of multiple claims. Questions of the degree of reference remain, however
(e.g. multiple defendants), raising in this context the issue of whole or partial reference
of any jurisdictional issue to the "other Convention". The Brussels Convention
6.48 Of the contracting States of the 1968 Convention only Austr ia is a party.
Regulation 44/200 1
6.49 In addition to Austria—Czech Republic and Hungary are parties, both
acceding before 1 May 2004. (iii) The Multimodal Convention 1980
6.50 This is not in force. The Convention has jurisdiction and arbitration
provisions (Articles 26 and 27) similar to the Hamburg Rules 1978. It also provides for
conflict of Conventions in maintaining in certain circumstances the mandatory
jurisdictional provisions of "any other international convention" (Article 30). The effect
of maintaining jurisdiction provisions will primarily be to give precedence to the other
Conventions over the Multimodal Convention. Any "general" jurisdiction Convention
will fall outside Article 57. No contracting State to the Brussels Convention or any
other EU Member State is a party. (iv) The CMR—Carriage of Goods by Road
6.51 The Convention is relevant to maritime claims in that through Article 2(1) it
encompasses carriage on a ship of goods in a vehicle. Article 3 1(1) and (2) provides:
"1. In legal proceedings arising out of carriage under this Convention, the plaintiff
may bring an action in any court or tribunal of a contracting court designated by
agreement between the parties and, in addition, in the courts or tribunals of the countr y
within whose territory:
(a) the defendant is ordinarily resident, or has his principal place of business or
the branch or agency through which the contract of carriage was made, or
(b) the place where the goods were taken over by the carrier or the p lace
designated for delivery is situated,
and in no other courts or tribunals.
(2) Where in respect of a claim referred to in paragraph 1 of this article an action
is pending before a court or tribunal competent under the paragraph or where in respect
of such a claim a judgment has been entered by such a court or tribunal no new action
shall be started between the same parties on the same grounds unless the judgment of the
court or tribunal before which the first action was brought i s not enforceable in the
country in which the fresh proceedings are brought."
6.52 Further it is provided by Article 41 that subject to the ability of carriers to
agree among themselves where the carriage is by successive carriers on legal
responsibility "any stipulation which would directly or indirectly derogate from the
provisions of this Convention shall be null and void".
6.53 The jurisdiction framework is clearly one to which precedence is given by
Article 47.51a Insofar as jurisdiction agreements are permitted, as with the Collision
Jurisdiction Convention (see p. 149) the question will arise of the degree of reference
by Article 57. 52 The provision creates Convention rights in the plaintiff as to place of
suit and no discretion seems to remain in nat ional law in the face of an agreement or on
the basis of forum non conveniens (see Royal and Sun Alliance v. Hi Tec Electronics
(n. 51a).
6.54 As construed by the English Court of Appeal the provision comes into play
where a case is "pending" in one state in the sense of the document initiating the action
being served on the other party rather than the initiation. 53 In the same case the majority
expressed strong opinions (rightly it is suggested) that the provision is (i) not limited to
substantive claims but includes a claim of liability and a claim for a declaration of
liability, and (ii) a claim for a declaration of non -liability (a negative declaration). 54
There was in the context of the provision as a whole no reas on for construing the
qualification relating to non enforceability as excluding "recognition". The court agreed
that it could not be said that two such claims were not based "on the same grounds"
simply because one was defensive.
6.55 The CMR Convention also prohibits the requirement of security for costs
from "nationals of Contracting countries resident or having their place of business in
one of those countries" (Article 3 1(5)). The Regulation and the Brussels Convention
have a much more limited prohibition in respect of the application for enforcement of
judgments55 Insofar as the security for costs provision of the CMR is a jurisdiction
provision within the meaning of Regulation or Brussels Convention it will continue to
apply. It is arguably such in that it affects the ability of plaintiffs to sue in courts other
than their own. Coincidence of parties
6.56 (a) The Brussels Convention
All parties are parties to the CMR
(b) Regulation 44/2001
All EU Member States are parties save Cyprus and Malta, and became parties
prior to the Regulation becoming binding on them. (v) The Athens Conventions
Relating to Carriage of Passengers and their Luggage by Sea of 197456 and 1992
6.57 Article 17 provides:
"Competent jurisdiction
An action arising under this Convention shall, at the option of the claimant, be
brought before one of the courts listed below, provided that the court is located in a
State Party to this Convention:
(a) the court of the place of permanent residence or principal place of business of
the defendant, or
(b) the court of the place of departure or that of the destination according to the
(c) a court of the State of the domicile or p ermanent residence of the claimant, if
the defendant has a place of business and is subject to jurisdiction in that State, or
(d) a court of the State where the contract of carriage was made, if the defendant
After the occurrence of the incident which has caused the damage, the parties may
agree that the claim for damages shall be submitted to any jurisdiction or to arbitration."
The Protocol 2002
6.58 The Protocol reflects a major revision of the Convention and on it coming into
force the Convention and Protocol will be known as The Athens Convention 1992. A
State becoming a party must denounce the 1974 Convention and the Protocols of 1976
and 1990. The 1974 Convention came into force on 28 April 1987. The 2002 Protocol
is not yet in force. In the EU there is a Commission Proposal that the EU and Member
States become parties. This is to be followed by incorporating the C onvention into EU
law by a Regulation (see 5.13). Article 17 57 as amended reads:
"Article 17 Competent jurisdiction
An action arising under Articles 3 and 4 of this Convention shall, at the option of
the claimant, be brought before one of the courts listed below, provided that the court is
located in a State Party to this Convention, and subject to the domestic law of each State
Party governing proper venue within those States with multiple possible forums:
(a) the court of the State of permanent residenc e or principal place of business of
the defendant, or
(b) the court of the State of departure or that of the destination according to the
(c) the court of the State of the domicile or permanent residence of the claimant, if
the defendant has a place of business and is subject to jurisdiction in that State, or
(d) the court of the State where the contract of carriage was made, if the defendant
Actions under Article 4bis of this Convention shall, at the option of the claimant,
be brought before one of the courts where action could be brought against the carrier or
performing carrier according to paragraph 1.
After the occurrence of the incident which has caused the damage, the parties may
agree that the claim for damages shall be submitted to any jurisdiction or to arbitration."
6.59 Insofar as the Athens Convention provides for the courts in which a suit may
be brought it seems clear that it has precedence over the Brussels Convention and,
subject to the date of ratification Regulation 44/2001: insofar as a jurisdiction
agreement may confer jurisdiction the points made in relation to the CMR are relevant.
As with the CMR it is doubtful if forum non conveniens has any role, given that the
choice of jurisdiction as between the specified courts in the Athens Convention is
expressly at the option of the plaintiff. Coincidence of parties
6.60 (i) Brussels Convention
Of the contracting States to the Brus sels Convention Belgium, Germany, Greece,
Luxembourg, Spain and the United Kingdom are parties. 58
(ii) Regulation 44/200 1
Apart from moves within the EU it would be inconsistent with the Regulation (and
hence EU law) for any Member State to become a party after the Regulation became
binding on it. Of the Member States only Latvia became a party prior to that date and
whether that would mean that the Athens Convention takes priority seems doubtful as the
Convention until the latter is in force. The implemen tation of the proposal within the EU
will make the issue irrelevant in this context. (vi) The Limitation of Liability
Convention 1976 and Protocol of 1996 (as to which see Chapter 24)
6.61 The Convention is intended to replace earlier Conventions on the sa me topic.
The Convention came into force on 1 December 1986. The Protocol came into force on
13 May 2004. Neither Convention nor Protocol have any express jurisdiction
provisions. Both Regulation 44/200 1 and the Brussels Convention pr ovide specifically
for jurisdiction in a limitation action in a court hearing a substantive claim in respect of
which limitation of liability is claimed. 59 It would therefore appear that these
jurisdiction regimes apply without qualification to claims with in the Limitation
Convention.
6.62 However there are in the Limitation Convention provisions which affect
jurisdiction. A limitation fund may be constituted in any State party to the Limitation
Convention in which proceedings have been started in respect o f claims subject to
limitation, the setting up of a limitation fund being dependent on current liability
proceedings. It permits limitation claims although no fund has been established but
allows national laws to provide that invoking the right to limit is dependent on the
setting up of a fund. Such a restriction would be on the ability to make the claim and not
on the jurisdiction to hear it. It therefore lies outside the Brussels Conventio n.
6.63 The 1976 Convention prohibits the bringing of a second action following any
claim against the fund. It provides for the mandatory release from arrest of ships when a
fund has been set up. Article 13 provides:
"Bar to other actions
1 Where a limitation fund has been constituted in accordance with Article 11, any
person having made a claim against the fund shall be barred from exercising any right in
respect of such a claim against any other assets of a person by or on behalf of whom the
fund has been constituted.
2 After a limitation fund has been constituted in accordance with Article 11, any
ship or other property, belonging to a person on behalf of whom the fund has been
constituted, which has been arrested or attached within the j urisdiction of a State Party
for a claim which may be raised against the fund, or any security given may be released
by order of the Court or other competent authority of such State. However, such release
shall always be ordered if the limitation fund has been constituted:
(a) at the port where the occurrence took place, if it took place out of port, at the
first port of call thereafter; or
(b) at the port of disembarkation in respect of claims for loss of life or personal
injury; or
(c) at the port of discharge in respect of damage to cargo; or
(d) in the State where the arrest is made.
3 The rules of paragraphs 1 and 2 shall apply only if the claimant may bring a
claim against the limitation fund before the Court administering that fund and the fun d is
actuallyavailableandfreelytransferableinrespectofthatclaim.”Theprovisiondoesnotselecttheforum.However,itindirectlycontrols
jurisdiction insofar as jurisdiction could be based on arrest. In proceedings within

Regulation 44/200 1 or the Brussels Convention based on arrest either directly through
Article 5(7) (salvage of cargo or freight) or indirectly through the Arrest Convention a
court of a Member State would be obliged, where appropriate, to consider the eff ect of
the 1976 Limitation Convention.
6.64 All matters of distribution of the limitation fund are governed by the law of
the state in which the fund is constituted. Nevertheless the Limitation Convention
provides no jurisdiction link between liability and limitation. It is clear that jurisdiction
in liability proceedings is governed by the Regulation or Brussels Convention and,
where appropriate and through priority given by them, the Arrest Convention or the
Collision Jurisdiction Convention.
6.65 Limitation proceedings against a defendant are within the ambit of the
Brussels Convention and jurisdiction is allocated by it. The power of the limitation
plaintiff to bring the action in the court hearing liabi lity proceedings is in addition to the
generally applicable jurisdiction bases ( see 6.88). Coincidence of parties
All the contracting States are parties save Austria, Italy, Luxembourg and Portugal.
Denmark, Finland, Germany, Spain, Sweden and the United Kingdom are parties to the
Protocol
In addition to the States listed in (i) Estonia, Latvia, Lithuania and Poland are
parties to the 1976 Convention (Lithuania becoming so only after being bound by the
Regulation). Malta is a party to the Protocol, but became so only after being bound by
the Regulation. (vii) The Liens and Mortgages Conventions 1926, 1967 and 1993
6.67 The 1926 and 1993 Conventions are in force, that of 1993 coming into force
on 5 September 2004. The 1967 Convention is not force. 60 None of the Conventions
contain express jurisdiction provisions (although Schlosser includes that of 1967 in his
list of Conventions to which Article 57 is relevant). The Conventions of 1967 and 1993,
however, imply jurisdiction in respect of interests affected by a forced sale where the
vessel is in the jurisdiction of the state where the sale is conducted. 61 Such a provision
may affect jurisdiction in respec t of particular claims and in particular the exclusive
jurisdiction as regards entries in public registers in the state of the register. 62
Coincidence of parties
Belgium, France, Italy, Luxembourg and Portugal are parties to th e 1926
Convention. Spain is a party to the 1993 Convention.
In addition to those EU States listed in (i) Hungary and Poland are parties to the
1926 Convention. Estonia is a party to the 1993 Convention but only subsequent to the
date on which the Regulation became binding on it. (viii) The Rhine Navigation
Convention 1868
6.69 The Convention is concerned with the navigation of the Rhine between Basle
and the open sea. It is a mixture of public and private law. It provides for the he aring of
disputes on specified matters by the tribunals for Rhine navigation with an appeal.
"The Tribunals for Rhine Navigation shall also have jurisdiction, in accordance
with Article 34II(c), if the parties are bound by contrac t, without reference to Article
35; their jurisdiction shall not however extend to an action founded on a contract and
taken against a vessel for damages caused to persons or goods on board the said vessel
where liability lies with the said vessel."
6.71 Article 35 provides for allocation of jurisdiction as between the tribunals.
Article 35(b) goes further, recognising choice of jurisdiction in courts other than the
tribunals. It provides:
"When, in the case of Article 34II(c), the damages took place on territories of two
Riparian States or when it is impossible to determine what territory the damages took
place, jurisdiction shall lie with the Tribunal which is the only one before which the
case is brought or is the first before which the case is brought.
When a tribunal of one of the States has decided that it has no jurisdiction in the
matter, the Tribunal of the other State shall be regarded as having jurisdiction.
Article 35(c)
In a civil action, the parties may agree to take their case before a Tribunal for
Rhine Navigation other than the one whose jurisdiction is provided by Articles 35 and
35b, of, if national legislation does not prohibit another jurisdiction or court."
Undoubtedly the Convention provi des a jurisdiction framework which is to be
observed rather than that of the Regulation or Brussels Convention. 63 Coincidence of
parties
6.72 Of contracting States to the Brussels Convention and EU members bound by
Regulation 44/200 1 Belgium, France, Germ any and the Netherlands are parties, and
were parties prior to the Regulation. 64 (ix) United Nations Convention on Law of the
Sea 1982
6.73 In large measure this Convention is concerned with public international law
and the agreement between states for the use of the sea and orderly development of the
sea and seabed. The rights and obligations in that regard fall directly on and between
the states, but there are provisions which impose duties in respect of jurisdictio n in
civil law.65
6.74 So while the right of innocent passage in territorial waters and transit passage
through straits, not part of the high seas, 66 is confirmed, it is subject to the right of the
coastal state to adopt laws (e.g.) regarding the safety of navigation and control of
pollution. There are limitations on the exercise of criminal jurisdiction in relation to
ships exercising the right of innocent passage. As to civil jurisdiction it is provided —
1. The coastal State should not stop or divert a f oreign ship passing through the
territorial sea for the purpose of exercising civil jurisdiction in relation to a person on
board the ship.
2. The coastal State may not levy execution against or arrest the ship for the
purpose of any civil proceedings save only in respect of obligations or liabilities
assumed or incurred by the ship itself in the course or for the purpose of its voyage
through the waters of the coastal State.
3. Paragraph 2 is without prejudice to the right of the coastal State, in accordance
with its laws, to levy execution against or to arrest, for the purpose of any civil
proceedings, a foreign ship lying in the territorial sea, or passing through the territorial
sea after leaving internal waters.
There are rights or seizure or detention of slave trade ships, "private ships", ships
of no or false nationality in the exercise of the right of "hot pursuit" with the right to be
compensated if arrested or detained without justificati on.67 Coincidence of parties
6.75 All members of the European Community save Estonia, Latvia and the
Community itself are parties, the Convention coming into force in regard to each state on
different dates. All were parties prior to Regulation 44/200 1 be coming binding. (x)
Convention on Liability for Damage in connection with the Carriage of Hazardous
and Noxious Substances by Sea 1996 (HNS Convention)
6.76 The Convention is not yet in force. 68 The format is similar to that of the Oil
Pollution Convention. The Convention applies to damage as defined 69 (i) caused in the
territory of a Member State, (ii) by contamination of the environment in the exclusive
economic zone or equivalent area of each such state, (iii) caused outside the terri tory if
carried by a ship registered in or flying its flag of a Member State, (iv) preventative
measures wherever taken. 70 By express provision as between State parties the
Convention "shall supersede" any Convention agreed prior to it in conflict with it
(Article 42).
6.77 Damage caused by pollution within the scope of the Oil Pollution Liability
Convention or by specified radioactive material is excluded and there are provisions
enabling Member States to exclude its application in respect of ships not exc eeding 200
tons carrying substances only in packaged form and local carriage. 71 Coincidence of
parties
6.78 The Convention has been ratified by six states. Of these only Cyprus is a
Member State and such ratification is subsequent to Regulation 44/2001. As the
Convention is not in force any ratification will be inconsistent with the Brussels
Convention and Regulation 44/200 1. By virtue of Article 57 of the Brussels Convention
once in force it will take priority over it. As regards Regulation 44/2001 by Council
Decision of 18 November 2002 Member States are authorised to ratify or accede to the
Convention (see 5.12). Liability and insurance
6.79 The owner is liable for any damage save on proof of one of specified grounds
(such as acts of third parties, war, governments or the shipper of the person suffering the
damage). The owner is entitled to limit liability to a sum specified in the Convention
unless it is proved that the damage was caused by the owner intentionally or recklessly
with knowledge of the probable result. In claiming limitation the owner must set up a
fund in a State party in which action is brought under the Convention or if no action is
brought in which action could be brought (as to which see infra). Where a fund is
created there may be no claim save against the fund and any ship arrested or security
given shall be released. 72 The owner must insure up to the limit of liability and a
compulsory insurance certificate ca rried on board the ship. There may be a direct action
against the insurer with the benefit of defences available to the owner (save bankruptcy)
and of limitation even if the owner is not entitled to it. 73 The HNS Fund
6.80 The fund is to provide compensati on not available through the owner or
insurer, subject to a maximum amount with specified defences of war and intentional or
negligent acts of the person suffering the damage. 74 The fund is made up of contributions
by receivers of contributing cargo (as defined). 75 Jurisdiction
6.81 An action may be brought in relation to damage only in the state or the
territory or exclusive economic zone of where the damage occurred. Where damage has
not occurred within any such area but may be the gr ounds for compensation, an action
may be brought only in the State party:
(a) of registration, or if unregistered, the flag state; or
(b) of habitual residence or principal place of business of the owner; or
(c) the state in which a limitation fund has been established.
Once a fund has been established the courts of the state have exclusive jurisdiction
over matters of apportionment and distribution. 76 (xi) Convention (1965) and Council
Regulation 1348/2000 on the Service Abroad of Judicial and Extra judicial
Documents
6.82 As between EU Member States the Convention was replaced from 31 May
2001 by Regulation 1348/2000. The aim of the Convention and Regulation 1348/2000 is
to create means of ensuring the efficient transmission of such documents. 77 The
Convention
6.83 A state is to establish a central authority and may specify alternative
authorities for transmission and receipt of judicial documents. Methods and evidence of
service of judicial documents by the recei ving state are prescribed. 78 Extra judicial
documents may be served by the same process. States remain free to effect service
through its diplomatic and consular agents, 79 as agreed by a state. Unless the receiving
state objects, service may be affected directly by post, or through judicial officers. The
receiving state may not refuse to comply with a request made in accordance with the
Convention. There is a need for proof of service prior to judgment in a case in w hich
the defendant does not appear and the power in specified circumstances to relieve a
defendant from effect of expiry to time to appeal. 80 Regulation 1348/2000
6.84 The Regulation is similar in format to the Hague Convention. Each Member
State must designate transmitting and receiving agencies and a central body to assist in
the transmission. 81 As to judicial documents, methods of transmission, language
requirements, service and its date and responsibilities of the agencies are prescribed. A
State is free to effect service by post directly "in exceptional circumstances" to use
consular or diplomatic channels or subject to objection by a State through judicial
officer or other competent persons. 82 As with the Hague Convention where a defendant
does not appear there must be proof of service by a prescribed method and there is a
like power to relieve the defendant from expiry of the time to appeal. 83
6.85 Given the nature of the Convention and Regulation 1348/2000 and
particularly the provision relating to the power to deliver a judgment where a defendant
does not appear as applied by the Brussels Convention 84 there will be few conflicts. 85
Insofar as the rules as to service go to jurisdiction to consider a case and ove rlap with
the Hague Convention the latter will take priority over the Brussels Convention. 86
Identical reasoning applies to Regulation 44/200 1 insofar as by Article 26 it applies
Regulation 1348/2000 and the Brussels Convention ( see 4.54). 3. Mandatory
Allocation of Jurisdiction
6.86 In a number of instances the same provision applies the Regulation or
Convention and allocates jurisdiction within it. This occurs in relation to:
(i) the "exclusive jurisdiction" based on specified connection between the case and
a Member State
(ii)agreements for jurisdiction in a court of a Member State
(iii) appearance before a court of a Member State. 87
These provisions are discussed in Chapter 5. 4. Optional Allocation of
Jurisdiction
6.87 Optional allocation means that, assuming no mandatory allocation of
jurisdiction, the plaintiff is given the option in specified circumstances to sue in a state
other than that through the jurisdiction of whic h the Community regime is applicable. 88
With one exception the option operates as an alternative to the defendant’s domicile.
The exception is the option given to a person claiming limitation of liability to bring suit
in the court considering the liability claim—the option therefore being dependent on
jurisdiction in a different but related matter.
6.88 The circumstances creating the option are:
(i) claim for limitation of liability 89
(ii) where the defendant is domiciled in a Member State:
(a) suit in a state of domicile, bearing in mind there may be more than one such
90
state
(b) in insurance and consumer contract cases in accordance with Regulation or
Convention provisions and in the Regulation individual contracts of employment
(c) in a Member State with which there is a specified link with the dispute
(d) in suits with multi-defendant parties or counterclaims in the Member State of
one of the parties or the claim. (i) Claims for Limitation of Liability
Article 7 of the Regulation and, with the substitution of "contracting State" for
"Member State" Article 6a of the Convention reads:
"Where by virtue of this convention a court of a Member State has jurisdiction in
actions relating to liability arising fro m the use or operation of a ship, that court, or any
other court substituted for this purpose by the internal law of that State, shall also have
jurisdiction over claims for limitation of such liability."
This provision brings within the "liability" jurisd iction of a court of a Member
State any claim for limitation of that liability. So proceedings such as in English law
which a liability defendant may initiate apart from the liability proceedings may be
linked jurisdictionally to those proceedings. 91 The regime will apply to the limitation
suit as to any other. 92 This provision simply confers an option other than the jurisdiction
base which would otherwise apply directly to the limitation suit when the Convention
applies to the liability proceedings.
6.89 The taking up of the option by the liability defendant does not depend on the
institution of liability proceedings but simply on the court of a contracting State in which
limitation proceedings are launched having the power to adjudicate on liability. 93 Such
an option clearly makes sense in that it encourages liability and limitation actions in the
same court. 94 However it does not provide a foundation for a "pre -emptive strike" by
the liability defendant. Limitation and liability proceedings do not have the same subject
matter or involve the same cause of action. So the existence of one will not create a " lis
pendens" so as to confer jurisdiction in that court in respect of the other proceeding. 95
(ii) Where the Defendant Is Domiciled in a Contracting State The primary principle
6.90 The general principle of suit in the defendant’s domicile is underlined by the
express prohibition on the use of particular rules of Member States basing jurisdiction
on other ("exorbitant") bases. So far as the obligation to sue in the defendant’s domicile
is concerned the provision is simply one of emphasis of the principle set out in Article
2, but it also lays the foundation for extension of the scope of some such laws in respect
of defendants not domiciled in a contracting State ( see Chapter 5). The primacy of the
general principle is further emphasized by the established approach to the "options" —
that, as the provisions derogate from the principle of domicile they must be construed
strictly. The consequence of lack of option is not lack of any jurisdiction, but simply that
the suit must be brought in the court otherwise provided . The concept of domicile
6.91 The enquiry into the applicability of the Regulation or Convention through a
defendant’s domicile will in many cases also indicate the state of domicile of the
defendant. The approach of the regimes to domicile is discussed in Chapter 5 in the
context of applicability. Domicile for the purpose of applicability is also domicile for
the purpose of jurisdictional allocation.
6.92 However, it may be clear that the defendant is domiciled in a Me mber State
(and therefore the appropriate regime is applicable) but not so clear in which state he is
domiciled. The criteria applied to decide applicability must then be applied further to
decide the defendant’s domicile and hence (subject to any exceptio n) any jurisdiction
based on domicile. (a) Defendant domiciled in more than one contracting State
6.93 As indicated in Chapter 5, neither in the Convention nor Regulation is there a
Community concept of domicile of an individual. The internal law of the fo rum is to
determine whether an individual is domiciled in the forum, and the law of any other
State to determine if there is a domicile there. 96 National laws may not be at one as to
the concept or any one law may provide for domicile in more than one stat e. In such
circumstances the plaintiff would have a choice.
6.94 On the other hand as regards legal persons and associations there is a change
from Convention to Regulation in the introduction of a Community concept of domicile.
In the Convention the seat of a legal person or association of natural or legal persons is
its domicile, and that domicile is to be determined by the private international law of
the forum. So in this context multiple domiciles (and the possibility of a choice for the
plaintiff) may occur only insofar as the rules of private international law of the member
states differ. In the Regulation 97 the domicile is the statutory seat, central administration
or principal place of business 98 (see Chapter 5). (b) Special subject-matter regimes—
insurance consumer and individual employment contracts 98
6.95 Special mandatory regimes are set out in both Regulation and Convention for
disputes in insurance and consumer contracts and in the Regulation for individual
employment contracts where the defendant is domiciled (or in the case of a defendant
insurer or supplier) is deemed to be domiciled in a contracting State. They form self -
contained and exhaustive codes 99 based on the perceived need for protection of the
insured the consumer and the employee. They provide first for jurisdiction based on the
defendant’s domicile but where the defendant is the insurer supplier or employer for a
number of plaintiff options. These differ, at least in part from those generally
applicable. Secondly the regimes extend the applicability of the Convention and
Regulation through deeming an insurer or supplier to be domiciled in a Member State
through a branch or agency, and thirdly provide a limited ability to escape from the
regimes through a jurisdiction agreement. At least where the jurisdiction selection is of
a court of a contracting State, the agreement must comply with the generally applicable
criteria as well as the appropriate insurance or consumer contract requirements.
However, the scope and function of these agreements is more limited. They do not of
themselves provide a jurisdiction base unless the Regulation or Convention already
applies through the specialist provisions. In other words they are an alternative to those
provisions—they do not create grounds of applicability but go solely to jurisdiction
allocation.
Insurance (section 3)
6.96 The insurance structure is largely identical in Convention and Regulation save
in the latter providing for the courts of the domicile of the insured or beneficiary as
options (see below). Clearly Convention authority applies. The structure was amended
by the Accession Convention 1978 largely to meet the needs of the United Kingdom
insurance market (see Schlosser, paras 136 to 152). In pa rticular the concern of the
United Kingdom with the mandatory set of rules for the protection of the insured went to
the force and frequency of jurisdiction based on agreements where the policy holder
was domiciled outside the Community and secondly to the insurance of large risks
particularly in shipping and aviation linking the jurisdiction with the United Kingdom.
6.97 Compromise was reached. First, an escape route is provided from the
insurance framework through agreement where the policy holder is domiciled out of the
Community save in cases of compulsory insurance and insurance of immovable
property. Secondly, in recognizing that insurance by large undertakings does not raise
the same need for protection as "consumer" insurance, it is provided that as to shipping
and aviation matters the parties could opt out of the insurance jurisdiction rules by
agreement as to jurisdiction. 100
6.98 The English Court of Appeal has rejected the conten tion that the regime as a
whole applies only to domestic or private insurance —pointing to the failure of those
negotiating the exclusion to reach a satisfactory exclusion definition for the commercial
insurer.101 It has been held by the House of Lords and European Court that reinsurance is
not within the regime. 102
6.99 The insurance regime deals with actions by and against an insurer and by or
against an insured, a policy holder or a beneficiary of an insurance policy. It therefore
differentiates between the person who appears on the policy and any person who may
hold the benefit of the policy (see Schlosser, para. 152). Subject to this the regime
adapts a number of general jurisdiction bases to insurance, provides for the avoidance
of the applicable insurance framework through a jurisdiction agreement and when the
insurer is the defendant adds alternative bases of jurisdiction to the insurer’s domicile.
6.100 In both Convention and Regulation insurance section is "without prejudice"
to Articles 4 and 5(5). Article 4 is concerned with defendants not domiciled in a
contracting State so is not relevant in the present context. Article 5(5) provides for an
extension of "domicile" in that a suit may be brought against a defendant domiciled in a
contracting State in another contracting State in which the defendant, whether or not
domiciled there, has a branch, agency or other establishment in that state. Claims by
insured, policy holder or beneficiary
6.101 Consistently with the basic jurisdi ction rule, where an insurer is the
defendant and is domiciled in a Member State a suit may be brought in the domicile of
the insurer. If permitted by the governing law in respect of liability insurance (i) such a
suit may be a direct action against the in surer by an injured party (ii) the insurer may be
joined in proceedings by the injured party against the insured. 103 In disputes arising out
of the operations of a branch, agency or establishment an insurer may be sued in the
contracting State in which a b ranch, agency or establishment exists whether or not
domiciled in a contracting State. 104 In addition in respect of liability insurance or
insurance of immovable property the insurer may be sued in the place of the harmful
event.105 Thirdly (the most marked exception to the general jurisdictional framework),
an action against an insurer domiciled in a contracting State may be brought in any
Member State in which under the Convention or Regulation the policy holder is
domiciled or (under the Regulation) the insurer or a beneficiary is domiciled.
6.102 The general multi-defendant and mutual claims provision (Article 6 —see
infra) is applied in a restrictive way to insurance transactions. 106 First, a co-insurer
may be joined in proceedings against a leading insurer. Secondly, in direct actions by an
injured party against an insurer, jurisdiction is also conferred over the insured or policy
holder if by national law they may be joined as parties. As in the general framework a
court having jurisdiction over a claim against an insurer also has jurisdiction over any
counterclaim but in this context only against the original plaintiff. 107
6.103 In specified circumstances parties may opt out of the insurance regime by an
agreement on jurisdiction. Included within that provision are specified marine and air
risks, reflecting the compromise reached as to insurance by large undertakings ( see
below). Lacking such agreement, any insurance matter (marine or otherwise) falls with in
the insurance regime. Claims by insurer108
6.104 Subject to a jurisdiction agreement within Article 12, a counterclaim against
the original plaintiff, 109 the joining of the policy holder or insurer in a direct action by
an injured party, 110 or, arguably, suit in a Member State in which there is a branch,
agency or other establishment, the insurer whether or not domiciled in a Member
State111 must sue in the defendant’s domicile. It expressly applies whether the defendant
is a policy holder, a beneficiary or an insured 112 and had been held not to be restricted
to these categories of defendant. 113 The jurisdiction agreement
6.105 The insurance jurisdiction framework is mandatory save for jurisdiction
agreements defined in i t and complying with the general provision relating to
jurisdiction agreements. 114 The provisions in Regulation (Articles 13, 14) and
Convention (Articles 12, 12a) are identical in substance save for two amendments. 115
The Regulation provisions read:
"Article 13
The provisions of this Section may be departed from only by an agreement:
(1) which is entered into after the dispute has arisen, or
(2) which allows the policy holder, the insured or a beneficiary to bring
proceedings in courts other than those indicated in this Section, or
(3) which is concluded between a policy holder and an insurer, both of whom are
at the time of conclusion of the contract domiciled or habitually resident in the same
Member State, and which has the effect of conferrin g jurisdiction on the courts of that
State even if the harmful event were to occur abroad, provided that such an agreement is
not contrary to the law of that State, or
(4) which is concluded with a policy holder who is not domiciled in a Member
State, except in so far as the insurance is compulsory or relates to immovable property
in a Member State, or
(5) which relates to a contract of insurance in so far as it covers one or more of the
risks set out in Article 14.
Article 14116
The following are the risks referred to in Article 13(5):
(1) any loss of or damage to
(a) sea-going ships, installations situated offshore or on the high seas, or aircraft,
arising from perils which relate to their use for commercial purposes.
(b) goods in transit other than passengers’ baggage where the transit consists of or
includes carriage by such ships or aircraft;
(2) any liability, other than for bodily injury to passengers or loss of or damage to
their baggage,
(a) arising out of the use or operation of ships, installations or aircraft as referred
to in point (1 )(a) in so far as the law of the Member State in which such aircraft are
registered does not prohibit agreements on jurisdiction regarding insurance of such
risks,
(b) for loss or damage caused by goods in transit as described in point (1)(b);
(3) any financial loss connected with the use or operation of ships, installations or
aircraft as referred to in point (1)(a) above, in particular loss of freight or c harter-hire;
(4) any risk or interest connected with any of those referred to in points (1) to (3);
(5) notwithstanding points 1 to 4, all "large risks as defined in Council Directive
73/239/EEC as amended by Council Directives 88/357/ EEC and 90/618/EEC, as they
may be amended."
6.106 Article 13(4) refers to risks and property in addition to those specified in
Article 13(1)–(3). A broad approach is to be adopted (at least by English courts) to the
connection required on the principle th at an insurer of risks within Article 13(1) –(3)
cannot be said to need the protection of the insurance regime simply because of
inclusion of other risks. However, the risk must form a lesser part of the contract. 117
6.107 Article 13 is narrower than the general "jurisdiction agreement" provision 118in
that the escape route from the applicable regime through agreement is specifically
restricted to particular types of agreement. This fits with the general protective
principles on which the insurance jurisdic tion is based. 119 As Schlosser says (para.
148) a jurisdiction agreement would not affect third parties and therefore direct actions
by the injured party. However, if the law permitting the action also permits a
jurisdiction agreement between insurer and p olicy holder to apply to a direct action it
would seem that the Convention would not prohibit this. This is particularly so as the
basis of the direct action lies in national law. 120 Marine Risks (Article 13) 121
6.108 Hull insurance and the insurance for the value of goods destroyed or lost are
covered by Article 13(1)(a), the latter including of necessity combined transport. While
liability insurance is dealt with in 13(2) Schlosser comments only that whether liability
insurance in respect of repairs in the shipyard comes within "use or operation" remains
to be seen. Injury to passengers and loss of or damage to their luggage are excluded,
being referable to parties in need of the protective principles of the insurance regime.
6.109 The English Court of Appeal has held that only marine risks are
encompassed by the provision. Any agreement in a policy covering marine and other
risks cannot qualify. In assessing whether the risks are entirely marine, "connected risks
and interests" within Article 13(4) are to be construed widely —so long as such risks
form a lesser part of the whole. 122 There may, however, be a valid jurisdiction clause in
a policy only covering connected risks within Article 13(4). 123 Relationship between
the General and Insurance “Jurisdiction Agreement” Provisions 124
6.110 Failing agreement or the application of any specified exception the
Convention insurance regime will apply. The general provision specifically states that
no agreement contrary to Article 13 shall hav e any effect. Although it is uncertain
whether the general requirements apply to agreements within Article 13, the pattern
seems to encompass Article 13 agreements as included within those envisaged and
defined in the general provision.
6.111 Secondly, there would seem no reason why requirements for a valid
agreement which avoids the jurisdictional framework specially introduced for the
protection of one party should be any less strict than (or indeed different to) agreements
generally recognised. On this reading the requirements of Article 13 go to elements not
relevant to the general requirements, i.e. such requirements are additional.
6.112 It must be said however that the intention behind the provision inserted by
the Accession Convention 1978 relating to insurance contracts with policy holders
domiciled outside the Community and large shipping and aviation risks is arguably that
agreements are to be valid within the Convention if valid according to forum law —
without any question of the general requirements. The concern (largely of the United
Kingdom) was that to impose Convention obligations as they stood prior to the
Accession Convention would be to increase insurance premiums and the aim of the
amendment was to allow contractual freedom (see Schlosser, para. 136). On this view
the legal effect of the jurisdiction agreement would be a matter solely for forum law —if
invalid the Convention would then operate. Schlosser comments specifically that
jurisdiction agreements in consumer contracts are subject to the general provision (para.
161) but makes no comment either way on insurance contracts. On the text it is difficult
to justify any difference in approach either in the Convention or Regulation.
6.113 If agreements within the insurance regime are simply general agreements
with additional elements the effect is dictated by the general provision —the selected
jurisdiction is mandatory and exclusive. The contention that that provision applies to
Article 13 agreements is suppor ted by the European Court decision in Gerling
Konzern.125 In this case the European Court was concerned with construing the general
requirements as they applied to an insurance contract. Had it been that the insurance
regime operated independently the point at issue would not have arisen. Further, in
finding that the general provision did not require writing by a third party who benefited
from the forum clause in an insurance contract (i.e. the insured), the court saw this view
as supported by the Convention insurance regime.
6.114 Whatever the approach as to the connection it would seem that a jurisdiction
agreement under Article 13, just as agreements within the general provision, may be
waived by appearance under Article 18.
Consumer contract jurisdiction
6.115 The jurisdiction code in the Convention was initially generalised to
consumer contracts from the original text which applied to instalment sales and loans to
keep pace with Community provisions imposing consume r protection on Member States.
At the same time it was made clear that the protection was geared to the ultimate
consumer. 126 The protection extends only to consumers who are parties to the
proceedings at issue—so where a consumer assigns his rights to a non -consumer the
provisions do not apply. 127
6.116 The regime under the Regulation is further extended from the Convention to
maintain and enhance protection of consumers in the d evelopment of internet sales and
electronic commerce. The contracts within the provision are increased in scope, a
requirement that the consumer should act in his own State removed, and the protection
extended to activities directed at the consumer’s State rather than necessarily in it. The
restrictions to ultimate consumer’s parties to the relevant proceedings are not amended.
6.117 The regime is of restricted relevance to the enforcement of maritime claims.
The critical feature is that the contract should have been concluded for a purpose
"which can be regarded as outside the trade or profession" of the consumer —a
Community concept. Being a derogation from the general principle focused on the
defendant’s domicile the concept must be st rictly construed.128 Most maritime claims
therefore fall outside the ambit of these provisions. Secondly, under the Convention
contracts of transport are specifically excluded and therefore fall within the general
provisions.129 Nevertheless, they may apply, for example, to the sale of a yacht 130 or
supplies. The consumer transactions within the Convention regime are set out in Article
13:
"(1) a contract for the sale of goods on instalment credit terms, 131 or
(2) a contract for a loan repayable by instalments, or for any other form of credit,
made to finance the sale of goods; or
(3) any other contract for the supply of goods or a contract for the supply of
services132 and
(a) in the State of the consumer’s domicile the con clusion of the contract was
preceded by a specific invitation addressed to him or by advertising, and
(b) the consumer took in that State the steps necessary for the conclusion of the
contract." 133
6.118 In Article 15 of the Regulation Article 13(1)(2) are unchanged but 13(3) is
replaced by:
"in all other cases, the contract has been concluded with a person who pursues
commercial or professional activities in the Member State of the consumer’s domicile
or, by any means directs such activities to that Mem ber State or to several countries
including that Member State and the contract falls within the scope of such activities."
So the protection is widened to include all consumer contracts and to remove the
link of the contract to the consumer’s domicile. 134
6.119 Under both Convention and Regulation, subject to the applicability of a
branch, agency or other establishment, a suit against a consumer domiciled in a
contracting State must be brought in that state. 135 The consumer himself is given the
option to bring suit in (i) the state of domicile of himself or (ii) of the other party or (iii)
in a dispute concerning operation of a supplier in a branch agency or other
establishment in the state in which the establishment is. As with an insurer, a supplier
who is not domiciled in a contracting State is deemed to be so domiciled in such a state
in which there is a branch agency or establishment in respect of any dispute arising out
of the operation of the branch agency or establishment. A court having jurisdiction in a
suit by or against a consumer has jurisdiction on any counterclaim. 136
6.120 Under both Convention and Regulation the ability to opt out of the consumer
framework through a jurisdiction agreement entered into before the dispute is limited.
An agreement must (i) be entered into after the dispute or (ii) allow a consumer to bring
proceedings in courts other than those specified by the consumer contracts provisions or
(iii) select jurisdiction in a court of a contracting State in which at the time of the
contract both the consumer and the other party to the contract were habitually resident or
domiciled, the courts selected being of that State and agreement is not contrary to the
law of that state. 137 As with insurance matters (see supra) unlike the general provision
as to jurisdiction agreements the provision is apparently not restricted to jurisdiction
selection of a court of a contracting State. Where the agreement does select a court of a
contracting State it is c lear that it was intended that it must comply with the
requirements of the general provision. The issues arising out of the relationship of the
jurisdiction agreement provision are those discussed in the context of insurance ( see
supra). (c) Options based on connecting factor other than domicile between contracting
State and dispute
6.121 "Connecting factor" options for a plaintiff where the defendant is domiciled
in a contracting State and the case is not within the consumer contract or insurance
regime are set out in Article 5 of the Regulation. This reads:
"Section 2. Special Jurisdiction
Article 5
A person domiciled in a Member State may, in another Member State, be sued:
(a) in matters relating to a contract, in the courts for the place of performance of the
obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of
performance of the obligation in question shall be:
— in the case of the sale of goods, the place in a Member State where, under the
contract, the goods were delivered or should have been delivered,
— in the case of the provision of services, the place in a Member State where,
under the contract, the services were provi ded or should have been provided,
(c) if subparagraph (b) does not apply then subparagraph (a) applies;
in matters relating to maintenance, in the courts for the place where the
maintenance creditor is domiciled or habitually resident or, if the matter i s ancillary to
proceedings concerning the status of a person, in the court which, according to its own
law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based
solely on the nationality of one of the parties;
in matters relating to tort, delict or quasi-delict, in the courts for the place where
the harmful event occurred or may occur;
as regards a civil claim for damages or restitution which is based on an act giving
rise to criminal proceedings, in the court seised of those p roceedings, to the extent that
that court has jurisdiction under its own law to entertain civil proceedings;
as regards a dispute arising out of the operations of a branch, agency or other
establishment, in the courts for the place in which the branch, age ncy or other
establishment is situated;
as settlor, trustee or beneficiary of a trust created by the operation of a statute, or
by a written instrument, or created orally and evidenced in writing, in the courts of the
Member State in which the trust is dom iciled;
as regards a dispute concerning the payment of remuneration claimed in respect of
the salvage of a cargo or freight, in the court under the authority of which the cargo or
freight in question:
(a) has been arrested to secure such payment, or
(b) could have been so arrested, but bail or other security has been given;
provided that this provision shall apply only if it is claimed that the defendant has
an interest in the cargo or freight or had such an intere st at the time of salvage."
6.122 The substantive changes from the Convention are —
(i) the creation of a special jurisdiction for individual contracts of employment
rather than a particular rule appearing in 5.1 ( see 6.152).
(ii) the inclusion in 5.1 of an autonomous definition of the place of performance in
respect of sales of goods and provision of services.
6.123 The grounds may be categorised as:
(1)four substantive grounds of claim (i.e. contract, maintenance, tort and salvage —
Article 5(1), (2), (3), (7));
(2) a "place of business" ground, i.e. carrying on operations through a branch,
agency or other establishment (Article 5(5));
(3)a "capacity" ground—linking jurisdiction over actions brought against a party
in his capacity as a party to a trust or creation of a trust to the domicile of the trust
(Article 5(6));
(4)a "linked proceedings" ground—based on the link between civil proceedings
at issue and criminal proceedings from which they spring (Article 5(4) ).
Not relevant to maritime claims are claims for maintenance and peripherally
relevant are the provisions regarding civil claims in criminal proceedings and trusts. No
comment is therefore made as to the maintenance and brief comment only as to criminal
proceedings and trusts.
6.124 Each of the grounds reflects (in the European Court’s view) "the existence in
clearly defined situations of a particularly close connecting factor between a dispute
and the court which may be called upon to hear it" ( Peters v. ZNAV).138 There are
matters of construction particular to each ground and the general question arises as to
the extent to which national law or European law governs these issues. The construction
must be approached from the viewpoint that the grounds derog ate from the primary
Convention jurisdictional ground of domicile. 139 So a court having jurisdiction under
one head would not thereby have jurisdiction in regard to the same claims brought under
another head. A court having jurisdiction in respect of an ac tion in tort will not thereby
have jurisdiction over the claim if based on contract. It does not follow that if an action
is not related to contract (under Article 5(1)) it must be a tort, delict or quasi delict
(under Article 5(3)). So it may be that, for example, some claims for unjust enrichment
are within neither (see below).
6.125 The Court has underlined the importance in seeing the Convention as
primarily concerned with Convention concepts. In relation to the interpretation of
"establishment" within Article 5(5) the Court said in Somafer:
" . . . multiplication of the bases of jurisdiction in one and the same case is not
likely to encourage legal certainty and the effectiveness of legal protection throughout
the territory of the Community and therefore it is in accord with the objective of the
Convention to avoid a wide and multifarious interpretation of the exceptions to the
general rule of jurisdiction contained in Article 2." 140
6.126 The approach is underlined by the comment in Article 5(3) in 1988 in
Kalfelis v. Schroder141 that it was necessary to regard the phrase "matters relating to
tort delict or quasi delict" as an autonomous concept. It should be interpreted by
reference principally to the system and objectives of the Convention.
6.127 The observations apply generally to the optional jurisdiction under Article 5
and particularly to jurisdiction bases within it capable of widely divergent national
definitions. The approach reflects the general trend although there are exceptions. So in
Article 5.1 for contracts other than those for sale of goods and provision of services
"place of performance" is a matter for national law (see (i) below).
(1) Substantive claims
(i) Contract (Article 5.1)
6.128 This cannot apply where the place cannot be determined as the contractual
undertaking is not subject to any geographi cal limit or may be performed in more than
one place. 142 Secondly, the provision is qualified in respect of (a) maritime wage
disputes in specified Member states and (b) Luxembourg domiciliaries.
MARITIME WAGE DISPUTES
6.129 Article V(b) of the Annexed Protocol to the Convention provides:
"In proceedings involving a dispute between the master and a member of the crew
of a seagoing ship registered in Denmark, in Greece, in Ireland or in Portugal,
concerning remuneration or other conditions of service, a cour t in a Contracting State
shall establish whether the diplomatic or consular officer responsible for the ship has
been notified of the dispute. It shall stay the proceedings so long as he has not been
notified. It shall of its own motion decline jurisdictio n if the officer, having been duly
notified, has exercised the powers according to him in the matter by a consular
convention or in the absence of such a convention has, within the time allowed, raise
any objection to the exercise of such jurisdiction."
Article 64 of the Regulation provides:
"1. In proceedings involving a dispute between the master and a member of the
crew of a seagoing ship registered in Greece or in Portugal, concerning remuneration or
other conditions of service, a court in a Member Stat e shall establish whether the
diplomatic or consular officer responsible for the ship has been notified of the dispute.
It may act as soon as that officer has been notified.
2. The provisions of this Article shall apply for a period of six years from entry
into force of this Regulation."
So the qualification is now limited to Greece and Portugal, to staying proceedings
until notification and only until 28 February 2008.
PERSONS DOMICILED IN LUXEMBOURG
6.130 Annexed Protocol Article 1 provides so far as is r elevant to Article 5(1):
"Any person domiciled in Luxembourg who is sued in a court of another
Contracting State pursuant to Article 5(1) may refuse to submit to the jurisdiction of that
court. If the defendant does not enter an appearance the court shall declare of its own
motion that it has no jurisdiction."
As with the qualification on the enforceability of jurisdiction agreements by virtue
of Article 17 (see Chapter 5) the clause is inserted to protect Luxembourg domiciliaries
from the jurisdiction consequences of the probable place of performance of contracts in
countries other than Luxembourg. 143
6.131 In the Regulation the protection is continued in a more limited and perhaps
curious way. For six years from 1 March 2002 jurisdicti on based on delivery of goods
or provision of services in another Member State may be declined where the final
delivery or provision is in Luxembourg. 144 That is a greatly restricted protection, and
the reasoning underlying it slightly opaque. Although based on final delivery it applies
only to the types of contract specified when a delivery or provision would have meant
that the place of performance was in another State.
AMBIT OF ARTICLE 5(1)
6.132 Subject to the above qualifications Article 5.1 raises two points for
construction:
(i) "in matters relating to contract";
(ii) "the place of the performance of the obligation in question".
6.133 (i) "In matters relating to contract." As the phrase forms a basic
jurisdictional ground, as would be expected it reflects a Community concept. In Peters
v. ZNA V145 construing the Convention the European Court so held saying:
"Having regard to the objectives and the general scheme of the Convention it is
important that in order to ensure as far as possible the equality and uniformity of the
rights and obligations arising out of the Convention for the Contracting States and the
person concerned, that concept should not be interpretated simply as referring t o the
national law of one or the other States concerned. It must be interpreted by reference
chiefly to the system and objectives of the Convention in order to ensure that it is fully
effective."146
6.134 The category is limited to obligations freely enter ed into by one party to the
other. It may include circumstances which do not envisage the reciprocal obligations
required for the consumer special jurisdiction. 147 It does not therefore include a
consignee of damaged goods carried under a bearer bill of la ding or an insurer
subrogated to the consignee seeking compensation from the carrier 148 or a case in which
there is a remedy by national law to a purchaser not in direct contractual relation with a
manufacturer. A precontractual duty to conduct negotiations in good faith is not an
obligation freely entered into but a rule of law. 149 Bearing in mind the classification of
such issues in most contracting States as tort or delict their inclusion could n ot have
been foreseen in this provision. 150
6.135 In Effer SpA v. Kantner151 the European Court ruled that Article 5(1) may
found jurisdiction "even when the existence of the contract on which the claim is based
is in dispute between the parties". As the C ourt indicated, to exclude disputes going to
the existence of the contract would be to allow a party to remove the jurisdictional
foundation simply by pleading no contract existed. The principle was applied by the
English Court of Appeal (rightly) in Boss Group Ltd v. Boss France SA152 to declare
jurisdiction in a suit seeking a declaration that no contract existed.
6.136 In Kleinwort Benson v. Glasgow Council 153 the majority of the House of
Lords154 held that the Convention wording and the principles of European Court
decisions required that there be a contractual obligation. 155 If so consequential or
ancillary issues, such as the right to damages could also be considered. 156 If, however, a
contract was held or admitted to be a nullity there was no jurisdiction to go any further.
So a claim in English law for restitution for moneys paid under an invalid contract did
not fall within Article 5(1). 157
6.137 In 1997 in Agnew v. Lansforsakringbolagens 158 it was accepted by all the
courts and the parties that matters going to the formation of the contract such as
misrepresentation or disclosure were matters "relating to contract". Further, in Source
Ltd v. TUV Rheinland Holding AG 159 the Court of Appeal held that where there were
contract and tort actions on the same facts (contract and tort duty of care) both claims
were "related to contract". It is certainly arguable that on that approach it is unduly
technical to exclude issues stemming from a conclusion of invalidity.
6.138 Inclusion or exclusion, it would seem, depends whether the focus is on an
existing contract or the context in which the claim arose —and the latter appears to fit
with the framework of Articles 5.1 and 5.3 (as to which see below). Where the
foundation for the dispute is a contractual relationship "freely entered into" the whole
dispute is related to “ contract” in the sense of that being the reason or root of it. Yet, as
the majority in the Kleinwort Benson case point out, the jurisdiction is conferred on the
place of performance of the obligation in question —and where is the "contractual
obligation" if there is no contract? Given the need to construe the provisions strictly as a
derogation from domicile, the majority view seems preferable. In the Agnew case a
fundamental distinction was seen as the difference between voidable and void contracts.
Where a precontractual obligation was not fulfilled there was a right to set aside a
contract that existed—and the obligation is therefore to be regarded as contractual. 160
6.139 Criteria for assertion of jurisdiction . To bring an action in England based
on an assertion or domicile of a contract will require the court being satisfied that there
was a "good arguable case" that the jurisdictional prerequi sites are met (including,
where appropriate, the existence of the contract). 161 Although there is no express power
under the Convention to require (as in English law) that there must be a serious question
to be tried, there is power and an obligation not to permit the Convention to be abused.
However, that simply emphasizes the existence of jurisdiction to decide whether there is
(arguably) a contract, and, if not, to decline jurisdiction to go to the merits. 162
6.140 (ii) "The place of performance of the obligation in question." There are
two issues relating to the construction of this phrase, each raising the question of
whether Community law applies and, if so, the Community meaning —(a) "the obligation
in question"; and (b) "the place of the performance". The interpretation of each involves
both Community and national law, for Community law spells out the framework within
which national law may operate. The defining of the place of performance in the
Convention in respect of individual contracts of employment reflects the development
by the European Court of different principles of the obligation in question as between
such contracts and all other types of contract.
6.141 The definition meant the introduction of a Community concept and that
development is taken further under the Regulation. First, a special jurisdiction regime is
created for individual contracts of employment (and such contracts no longer form part
of the options of Article 5 (see supra). Secondly, subject to contrary agreement, 163 the
place of performance is specified in sale of goods (place of delivery in a member State)
and provision of services (place of provision in a member State). Where the relevant
place in these types of contract is in a non-member State the general rule of referring the
place of performance to national law is applied.
The obligation in question
6.142 The specification by the Regulation subject to contrary agreement in sales of
goods and provision of services necessarily implies the obligation in question. The
focus on the place of delivery prevents any contention that may be made generally that
depending on which party is the claimant or the nature of the contract the obligation
could be the payment. It would seem probable that the power to agree otherwise as in
regard to contracts generally excludes agreements in reality establishing jurisdiction
rather than the place (see below).
6.143 Apart from the sale of goods and provision of services the concept has a
Community meaning (or rather meanings) depending on the nature of the contract. In the
view of the English courts at any rate, duties arising in precontract negotiations such as
not to misrepresent or to disclose are within it pr ovided that the resulting contract
comes into existence. 164
6.144 The obligation on which a court must focus is that which is the basis of the
legal proceedings. 165 It is not, therefore, "appropriate or necessary" to identify the
obligation which characterises the contract. 166
6.145 The obligation may be positive or negative. 167 Where there is more than one
obligation forming the basis of the proceedings, it is the principal obligation which
controls.168 Where there are two or more obligations of equal rank (as, for example, the
payment of compensation and commission) which are to be performed in different
states, there is no court having jurisdiction over both claims on the basis of place of
performance. 169
6.146 It is for national law to identify the obligation on which the proceedings are
based.170 Apart from the provisions relating to delivery of goods or provision of
services and guiding Community principles it is further for that law to decide where the
obligation is to be performed (see infra). It may be that the obligation in question may
differ according to which party is the plaintiff or the claim made. So in respect of
contract of carriage of goods by sea it may be the port of discharge (if misdelivery is the
claim) or port of loading (if failure to provide a seaworthy ship is asserted). If the
assertion is lack of care during the voyage there may be no jurisdiction under Article
5(1).171 In respect of a contract of sale of goods not within the express provision it may
be the place of delivery or payment depending on which party complains, 172 although in
Mercury Publicity Ltd v. Loerke173 the English Court of Appeal thought the Convention
difficult to apply where the obligation sued on was to make payment —quite why this
should be so is unclear. As that Court pointed out in Chailease Finance Corporation v.
Credit Agricole Indosuez 174 the principal obligation of an issuing bank in respect of a
letter of credit was to pay on presentation of the confirming document —not acceptance
of those documents.
The place of performance
6.147 In 1976 in Industrie Tessili Italiana v. Dunlop AG175 the European Court
indicated that this was not a Community concept but a matter for the forum conflict of
law rules. It seems as if the Court’s general approach in that case has steadily been
eroded in that emphasis has increasingly (and rightly it is suggested) been placed on
Community concepts. However, apart from sale of goods or provision of service in a
Member State the decision in the Industrie Tessili case continues to reflect the Court’s
approach on the issue with which it was concerned, an approach confirmed by the Court
in 1994176 and again in 1999 on the matter being specifically referred to it. 177
6.148 In 1999 the Court reiterated the role of national laws in declining a
suggestion that the place of performance should be established as a Community concept —
dependent on the nature of the relationship creating the obligation and the
circumstances of the case. That approach, said the Court, would not resolve all the
relevant factors (such as identifying the contractual obligation forming the basis of
proceedings). As a consequence there would still have to be a reference to national law
—although the suggested criteria may form part of such law. 178 Subject to the provisions
for sale of goods or provision of services this approach applies to the Regulation.
6.149 Through reference to national law or through direct application, another
Convention may dictate the jurisdiction in dictating either the place of performance or,
for example, the place of payment which by the applicable law is the place of
performance. So the Hague Convention Relating to the Uniform Law on the International
Sale of Goods 1964 provides (in Article 59) that the buyer shall pay the price at the
seller’s place of business or residence. This provision may dictate the place of
performance for the purposes of Article 5(1).179
The sale of goods and provision of services
6.150 Subject to contrary agreement the place of performance is the place where
the goods are or should be delivered or services are provided or should be provided.
This fits with the factor generally applied of the final act of the obligation. The
approach rules out any contention that, because of the nature of the claim or contract, the
place of performance is the place of payment.
6.151 The place of performance will govern even if it has little or no connection
with the dispute—it is a criterion adopted because of its certainty and allows a national
court to determine its jurisdiction without considering factors going to the substance of
the dispute.180 In defining the place of performance courts tend naturally to focus on the
final act required of the obligation, 181 but this is not exclusively so. The nature of the
obligation may dictate the place of performance. 182 Where the plaintiff seeks damages
for breach of an obligation, the place of performance will normally be the place where
that obligation should have been performed. 183 It has been held in Scottish and Irish
courts that bearing in mind the derogation from the princ iple of domicile it is only a
mandatory place of performance which can found jurisdiction. It is not enough that the
contract may be performed. However, the English Court of Appeal upheld English
jurisdiction on the basis that the contract could be perform ed either in England or
Germany.184
INDIVIDUAL CONTRACTS OF EMPLOYMENT
6.152 The plaintiff’s option in a contractual dispute apart from domicile of the
defendant is and was "the place of performance of the obligation in question". That
applied to individual contracts of employment as to any other contract. In a series of
decisions the European court took the view that the focus generally applicable to link a
contractual dispute with a state simply on the obligation which is the basis of the
proceedings (see??) was inappropriate. To protect the employee it should be the wider
criterion of the obligation characterising the contract —normally the obligation to carry
out work.185 Such contracts created a long-term relationship bringing the work into the
framework of the business and are related to the place where the activities are carried
on 186—or where carried on in more than one place where the obligations are
principally performed. 187 So the employee’s position would be protected at that
place.188 The Convention text adopting the approach of the Court was introduced
through the Treaty of Accession when Portugal and Spain became contracting States.
6.153 The place of performance .189 Defining the place of performance by
reference to habitual work or place of enga gement creates a Community concept, 190 and
that concept is exclusive of any other factor. 191 Further the approach to the place of
performance where the contract is performed in separate states has also taken on a
Community meaning. Through adaptation of th e case law prior to amendment of the
Convention text it is (understandably) the place where in fact the employee performs
"the essential part of his duties". 192 This presumably leaves the characterisation of
duties to national law. While it further leaves the difficulty of "essential duties" carried
out in more than one state. The inability to identify one state leaves the employee free to
sue in the courts where the engaging business is situated. However, as a matter of
Community law where there are two su ccessive employees and the first has an interest
in the performance of the second employment, during suspension of the first
employment, the place of employment of the second engaged is that where the employee
habitually carries out the work. 193
6.154 This was further defined by the court in a case in which the duties were the
same in more than one State (a cook) and there were no criteria enabling a court to
localise the "essential" duties. Failing other criteria the place of performance will be
the place where the employee spent most of his working time. If there still can be no
choice between States there is no place of performance for this purpose and the
employee must sue either in the employer’s domicile or the place of the engaging
business.
6.155 The Regulation. The recognition of such contracts as a distinct category has
led therefore to the creation of a regime of special jurisdiction to match consumer
contracts and insurance. 194 The jurisdiction for actions by an employee is in the courts
of the domicile of the employer (including deemed domicile) or the courts or where the
employee habitually carries out his work or last did so or where the work is not
habitually in one country, the place of the business engaging the employee. 195 An
employer may sue only in courts of the employee’s domicile. This may be changed by
agreement either post dispute or which allows the employee to bring proceedings in
other courts. The employee is therefore given wider and more direct protection than the
Convention provision based on place of performance. Apart from the post dispute
agreement the employer’s options not to sue in the employees domicile 196 disappear.
The wording of the Regulation is relat ion to the place of performance is substantively
that of the Convention and authorities on this aspect continue to be relevant.
6.156 AGREEMENT BY THE PARTIES TO THE PLACE OF PERFORMANCE.
The validity of any choice in the contract of the place of performan ce is to be adjudged
according to the governing national law subject to any Convention provision. In Zelger
v. Salinitri197 the European Court held that an oral agreement fixing the place of
repayment of a loan which was at issue was a valid choice of jurisdiction through the
operation of Article 5(1) provided the clause is valid by the law applicable to the
contract. The requirements of Article 17 did not apply as the jurisdiction under Artic le
5(1) was based on a link between dispute and state. When Article 17 does apply it has
the effect of setting aside the general and special rules of jurisdiction of Articles 2 and
5.
6.157 However, an agreement in reality designed not to determine the pla ce of
performance but solely to establish which courts have jurisdiction is valid only if
complying with Article 17. The conferring of jurisdiction under Article 5(1) is on the
place of actual performance "by reason of its direct connection between it and the
relevant courts". 198 There is no reason why this should not apply to permitted
agreements contrary to the place of performance specified in the Regulation of sales of
goods and provision of services (see above).
(ii) Claims in tort or delict (Article 5 .3 of the Regulation and Convention)
6.158 Article 5.3 provides that a person domiciled in a Member State may be sued
in another Member State in matters relating to tort, delict or quasi delict in the courts of
the place where the harmful event occurred or, in the Regulation, may occur. The
addition reflects the conclusion of the European Court that preventative actions are
within the regime. 199
"MATTERS RELATING TO TORT, DELICT OR QUASI DELICT"
6.159 As for Article 5.1 and contract claims a central question is the extent to
which the jurisdictional ground is based on Community concept or national law. The
suspension of the allegedly tortious conduct giving rise to the action pending the
outcome of a ruling on legality (on industrial action on a ship) does not affect the
jurisdictional provision. Otherwise the principle of certainty of forseeability of court
may not be achieved. 200 The concept of "tort, delict or quasi delict" is independent of
national laws and must be interpreted by reference primarily to the system and
objectives of the Community. In Kalfelis v. Banque Schroder 201 the European Court
defined the concept as relating "to any action which seeks to establish a defendant ’s
liability and which is not related to a ‘contract’ within Article 5.1". In holding that
jurisdiction based on tort could not be the foundation for jurisdiction in "contract or
unjust enrichment” the Court held that tort jurisdiction could not lead to "n on-tort"
jurisdiction. But is the result that (e.g.) unjust enrichment may fall outside Article 5.1
and 5.3 or that the phrase is to be restricted to "delict"? 202 Where a consignee of goods
carried by sea (or an insurer subrogated to his right) seek to est ablish the carrier’s
liability for damage the claim does not relate to contract ( see above). It falls within
Article 5.3. 203
6.160 Scottish courts have construed the identical provision as it applies between
England and Scotland to mean "proceedings in del ict". So a claim against an insurer
based on a statutory obligation to pay a sum awarded against the insured was outside the
provision.204 But does that fit with the definition of the European Court?
6.161 Perhaps more arguable is the exclusion of a cause of action in tort
alternative to that in contract, so where there was a contractual duty to take care and a
tortious duty based on the same facts it was held by the Court of Appeal that both claims
related to contract. 205 The House of Lords has expressed the view that a claim for the
return of moneys paid under an invalid contract is also excluded. 206 That conclusion has a
defensible foundation on the basis that the claim is "related to contract" (as held by the
minority), but seems doubtful if the claim is not related to contract (as held by the
majority). Would not the broad approach of the European Court lead to the minority
conclusion?
"PLACE WHERE THE HARMFUL EVENT OCCURRED"
6.162 In Handelswekerij Gt Bier and Stichting Rein Water v. Mines de Potasse
d’Alsace207 the Court construed the phrase "place where the harmful event occurred" to
confer jurisdiction on either the place of the act causing the damage or the place where
the damage occurred. The Court referr ed to the basis of the jurisdiction grounds of
Article 5—that of a close connection between issue and state. Approaching claims
within Article 5.3 on that basis "it does not appear appropriate to opt for one of the two
connecting factors" (i.e. of occurrence of damage or harmful event) "since each of them
can depending on the circumstances be particularly helpful from the point of view of the
evidence and of the conduct of proceedings. To exclude one option appears all the more
undesirable in that by its comprehensive form of words Article 5.3 of the Convention
covers a wide diversity of kinds of liability." 208 The phrase cannot, however, have been
construed so extensively as to encompass any place where the adverse consequences
can be felt of an event which has already caused damage elsewhere (i.e. consequential
damage)209; not the worsening of a physical condition caused initially giving rise under
a national law procedurally to a further action. 210
6.163 The emphasis by the European Court on the direct pro duction of the harmful
effects led Rix J. in the High Court to conclude that any test of "close connection" or the
action arising in substance does not reflect the Convention. The place of the harmful
event causing the damage focuses o n the initial act—in negligent misstatement the
making of the statement. 211 The English cases concerning representations and the casual
act are not at all clear and perhaps do not approach the jurisdiction issue as Rix J. did —
bearing in mind that Article 5.3 contains also jurisdiction based on occurrence of
damage. There may still be some uncertainty as to whether the critical event is the
making of the representation or reliance on it. 212 While no doubt both events are in the
causal chain, it would seem that if there is to be one cause that which sets off the chain
should be regarded as it. It may be that there is only a need for a harmful act causing
damage, but more than one works against the principle of foreseeable certaint y of
jurisdiction. 213
6.164 Where damage is caused by an act in one state and occurs in a number of
other states there is jurisdiction in the courts of each state. However, the court where the
event occurred will have jurisdiction in relation to all the da mage whereas the courts of
the state where the damage occurred only in respect of the damage occurring in that
state.214
6.165 It would seem arguable as with the place of performance in Article 5.1 ( see
fn. 177) there may be no foundation for Article 5.3 if the event occurs on the high seas.
Any argument that it should be deemed to occur in the state of the flag of any ship
involved seems difficult to justify in the light of the purpose and role of this o ptional
jurisdiction215—particularly considering flags of convenience. However, the European
Court has equated damage created by industrial action occurring on a ship with the
country of its nationality. 216 The Court seem to have been unconcerned about the degree
of connection between ship and state of registration.
6.166 However, in Reunion Europeene SA 217 there was a claim by the consignee
of apples found damaged at their premises in France after transport from Australia by
sea to Rotterdam and then by land. The damage was due to a breakdown in the
refrigeration system on the ship. Insurers subrogated to the consignee’s rights sought to
bring proceedings in France against the maritime carrier. The European Court held in
respect of such international transport the place of the damage occurring was the port of
actual delivery by the maritime carrier. Although the principle is expressed generally on
the premise that the place of the event causing the damage may be difficult to ascertain,
it surely must be read in the context of the case, i.e. that the claim was against the
maritime carrier and (possibly) that the cause of the damage was known to have
occurred during the sea voyage. How far outside the context the interpretation should
apply seems uncertain.
EVALUATION OF "HARM"
6.167 In order to decide if there is jurisdiction it may be necessary to consider if
harm has occurred and therefore the stand ard of proof and evidence in a jurisdictional
context. These are matters for national law according to its conflict of laws rules
provided the Convention is not thereby impaired. 218
(iii) Remuneration for salvage (Article 5(7))
6.168 Article 5(7) provides that a person domiciled in a Member State may be
sued:
"(7) as regards a dispute concerning the payment of remuneration claimed in
respect of the salvage of a cargo or freight, in the court under the authority of which the
cargo or freight in question
provided that this provision shall apply only if it claimed that the defendant has an
interest in the cargo or freight or had such an interest at the time of salvage." 219
This provision was added by the Accession Convention 1978 at the instigation of
the United Kingdom delegation (see Schlosser, para. 122). Jurisdiction based on arrest
of ships is preserved in the Convention by the priority given to the Arrest Convention
1952 (or, where applicable, the Collision (Civil Jurisdiction) Convention 1952). 220
There was, however, no other saving for jurisdiction based on arrest of other property.
Such jurisdiction exists in English law in relation to cargo or freight to enforce a
maritime lien for salvage and may exist in respect of a maritime lien in respect of
bottomry and respondentia and (at least for freight) for collision claims. It may be
possible to argue that a maritime lien would lie in respect of cargo if that cargo causes
damage to another ship. 221
6.169 Whatever the scope of claims in rem in regard to cargo or freight, if a
defendant (i.e. the person liable in personam) is domiciled in a contracting S tate
jurisdiction based on arrest of cargo or freight is restricted to salvage claims within
Article 5(7) unless further jurisdiction emerges from a future Convention given priority
through a Council Decision. 222 It should be stressed that any arbitration proceedings
including a suit to enforce an arbitration award (as, for example, under Lloyd’s Open
Form) will fall outside the Convention. However, a judgment obtained in proceedings
conducted despite an arbitration clause or in a suit to enforce an award m ay arguably be
enforceable under the Convention (see Chapters 3, 28).
(2) Operations of a branch, agency or other establishment (Article 5.5)
6.170 Article 5.5 provides that a person domiciled in a Member State may be sued
in another contracting State "as regards a dispute arising out of the operations of a
branch, agency or other establishment, in the courts for the place in which the branch,
agency or other establishment is situated". This optional jurisdiction is retained as such
in the special frameworks governing insurance and consumer contract claims. 223
6.171 The fundamental point of construction of this provision turns on the meaning
of "branch, agency or other establishment". A further point arises as to whether relevant
operations must have taken p lace in the state in which the branch, agency or
establishment is situated.
“Branch, agency or other establishment ” —a Community concept
6.172 The European Court has held that "branch, agency or other establishment" is
a Community concept. 224 In spelling out the Community meaning the Court has stressed
the need for direction and control by a parent body. So, for example, a distributor of
goods will not of itself qualify, 225 nor will an independent and non -exclusive
commercial agent transmitting orders without negotiating the terms of transactions. 226
6.173 Further factors necessary to demonstrate the connection between dispute and
state to provide the ground for derogation from the general jurisdictional norm of the
defendant’s domicile in Article 2 are:
(i) material signs enabling the existence of the branch to be easily recognised and
(ii) a connection between the branch and the claim against the parent body. 227
EXTERNAL EVIDENCE OF THE EXISTENCE OF THE BRANCH
6.174 This implies a place of business "which has the appearance of permanency
such as the extension of a parent body, as a management and is materially equipped to
negotiate business with third parties so that the latter, although knowing that there will if
necessary be a legal link with the parent body, the head office of which is abroad, do
not have to deal directly with such parent body but may transact business at the place of
business constituting the extension".
6.175 Such an approach is understandable bearing in mind the underlying basic
principle of jurisdiction based on domicile but it may place a considerable onus (for
example) on a person dealing through correspondence with a company which through its
letterheads or negotiations appears to be conducting business through a branch. Today
commercial business is hardly conducted through office visits and it could be argued
that at the least a corporation giving the impression that a transaction is being han dled
by a branch should not be allowed to deny it. Such an argument was made in Somafer
but the Court held that in that case in the light of its decision on the definition of a
branch and operations it was unnecessary to deal with it. A. G. Meynas was of t he view
that estoppel had no place in a jurisdiction question and it would seem that the Court
was impliedly taking the same view. 228
6.176 In favour of the view of the Court is the underlying principle in Article 2 that
it is the existence of a close conn ecting factor which justifies the departure from
jurisdiction based on domicile. It is arguable therefore that it is for the plaintiff to
satisfy himself that the unit he is dealing with is a branch in substance if a jurisdiction
based in that country is of importance to him in the context of the contract.
CONNECTION BETWEEN DISPUTE AND PARENT BODY
6.177 In Somafer the Court appeared to restrict the operation of Article 5.5 to
undertakings or activities performed or engaged in the contracting State where the place
of business is established. Such a restriction puts a gloss on the provision which is
difficult to justify given the required connection between disputes and branch ac tivities.
However in 1995 in Lloyd’s Register of Shipping v. Société Campenon Bernard 229 the
Court held that such a restriction would largely nullify the extension from the courts for
the place of the obligation in question. The undertaking may be performe d outside the
state of the ancillary establishment, possibly by another ancillary establishment.
6.178 In The Tropical Reefer 230 a London branch of the defendants, a Norwegian
bank, caused the arrest of the ship in Panama on the defaulting on a loan to the
shipowners, the loan being secured by a mortgage on the ship. As a consequence the
claimants’ cargo of bananas perished. The Court of Appeal applying the Lloyd’s
Register case 231 held that it was not relevant to the jurisdiction is sue where the
activities relating to the dispute took place. As regards a claim in tort, under Article
5(5) it was not necessary for the harmful event (the arrest) to have taken place in the
State where the branch was situated. It was a question of fact in each case whether the
dispute had arisen out of the operations of the branch. In this case all the relevant acts
(the loan, the decision and the authority to enforce it) had taken place in London.
(3) Suing defendant in capacity as settlor, trustee or beneficiary of a trust
(Article 5(6))
6.179 It has been said by Schlosser (paragraphs 117 and 120) that this provision is
intended to apply only to trusts expressly constituted by agreement or by statute a nd
secondly only to disputes between the parties to the trust. If this is so it seems somewhat
inaptly drafted—for it does not specify intentional trusts and is focused on suits against
a defendant in its capacity as settlor, trustee or beneficiary. Clearl y the thought is that the
domicile of the trust is a major connecting factor in regard to any proceedings
concerning it and it is difficult to appreciate why this should be any the less critical
however the trust comes about.
6.180 The construction may have some relevance to maritime claims because of
the possibility of a "trust" imposed in favour of non -registered owners of ships and of
"beneficial ownership" through, for example, a contract of sale of a ship. 232
(4) Linked proceedings
Limitation of liability (Regulation Article 7, Convention Article 6(a))
6.181 This applies generally as an alternative jurisdiction base and not simply
where the defendant is domiciled in a contracting State. It is discussed supra.
Civil claims in criminal proceedings (Article 5.4)
6.182 Article 5.4 provides for jurisdiction in respect of damages or restitution
based on an act giving rise to criminal proceedings in the court hearing those
proceedings if it has such jurisdiction by its national law. 233 A judgment against a
defendant in a civil action in the criminal courts of another contracting State of which he
is not a national for an offence which was not intentionally committed in proceedings in
which the defendant having been ordered to appear fai ls to do so, need not be
recognised or enforced in other contracting States ( see further Chapter 28).234 (d) Multi
parties or actions
"Article 6
A person domiciled in a Member State may also be sued:
where he is one of a number of defendants, in the courts for the place where any
one of them is domiciled “provided that the claims are so closely connected that it is
expedient to hear
and determine them together to avoid the risk of irreconcilable judgme nts resulting
from separate proceedings". 235
as a third party in an action on a warranty or guarantee or in any other third party
proceedings, in the court seised of the original proceedings, unless these were instituted
solely with the object of removing him from the jurisdiction of the court which would be
competent in his case236;
on a counterclaim arising from the same contract or facts on which the original
claim was based, in the court in which the original claim is pending.
In matters relating to a contract, if the action may be combined with an action
against the same defendant in matters relating to rights inrem in immovable property, in
the court of the Member State in which the property is situated." Standard of proof and
date of domicile
6.184 In English law the plaintiff must show only an arguable case that a defendant
is domiciled in England. As the purpose of the provision is to identify the courts in
which the defendants are to be sued, the domicile (as for Article 2) is to be established
at the issue of the original proceedings and not the service of proceedings or when the
other defendants are joined. 237 Serious issue to be tried
6.185 It has been held in a number of cases that, just as in English law, the plaintiff
must also show there is a serious issue to decide. 238 In English law that element goes to
the discretion of the court to allow service of a claim from out of the jurisdiction ( see
Chapter 9). There is no such Community discretion but there is clearly no risk of
irreconcilable judgments (see infra) if there is no valid claim—whether the "serious
issue to be tried" is the correct criterion is debatable ( see infra). Relationship with
provisions of “exclusive” jurisdiction
6.186 It would seem that despite multiplicity of proceedings provisions for
exclusive jurisdiction because of the nature of the claim, and prorogation of jurisdiction
will, so far as they apply, take precedence over Article 6. Otherwise an optional
jurisdiction will have priority over one that is mandatory. 239 Other Convention
jurisdiction
6.187 As with any other head of jurisdiction multi -party jurisdiction is subject to
any other Convention given priority (see Chapter 5). This will be so whether the other
Convention jurisdiction is based directly on claims or is itself (as, for example, the
Collision Jurisdiction Convention 1952) based on third party proceedings.
6.187A The degree of incorporation of the other Convention is critical. 240 So the
Collision Jurisdiction Convention provides for jurisdiction in the court hearing the
principal claim over counterclaims for multi -plaintiffs and also that nothing in the
Convention shall prevent any court seised of an action from exercising jurisdiction in
respect of a further action arising out of the same incident. As the Collision Jurisdiction
Convention restricts jurisdiction it is arguable that it is this provision rather than the
Regulation or the Brussels Convention which should control multi -party claims within
both (see supra). If so, it would then be national law which interpreted the meaning and
scope of the Collision Jurisdiction Convention.241 Co-defendants (Article 6.1)
6.188 This provision can operate only if at least one defendant is sued in the court
of his domicile242 and that an action will lie against the "primary defendant". 243 Where
therefore the case is brought in a Member State by virtue, for example, of it being the
place of the harmful event (Article 5(3)) or by virtue of a jurisdictional agreement the
co-defendants cannot be joined in that state by virtue of Article 6. 244 It follows that a
defendant domiciled in a Member State may not be joined in an action in another
Member State against a defendant not domiciled there —even if the suits are
"indivisible". 245 Although there is no express prohibition (as in Article 6(2)) the
provision must not be used to defeat the basic principle of jurisdiction based on the
defendant’s domicile. So a court would not have jurisdiction in an action brought for the
sole purpose of excluding one of the defendants from the courts of his domicile. 246
6.189 There is uncertainty whether a common legal base is needed to establish the
necessary connection of claims for jurisdiction to be conferred. In the Reunion case the
European Court stated that actions in contract and in tort or delict could not be regarded
as connected. This was said to follow from the rule that in Article 5 jurisdiction in tort
(Art. 5.3) did not confer jurisdiction on any other base.
6.190 However, as the English Court of Appeal pointed out in Watson v. First
Choice Holidays Ltd and Aparta 247 that conclusion does not necessarily follow from
the reason. It will do so only if the connection required for Article 6.1 is linked to the
categorisation of Article 5.
6.191 In the Watson case the claimant was suing First Choice in contract and
Aparta in tort in respect of the same physical injury. As the Court also pointed out to
exclude claims based on contract and tort will create a considerable risk of
irreconcilable judgments for the same facts evidence and conse quences may be relevant
to an action in contract against A and an action in tort against B.248
6.192 For the application of the article at the inception of proceedings there must
exist such a connection between the claims as to make it desirable to rule on them
together to avoid possible irreconcilable judgments. Such irreconcilability, it has been
held may be in fact or law. 249 Whether such a connection exists is a matter in each case
for the national court 250; but it remains uncertain whether the risk must be wholly
avoidable as between all possible parties. 251 Third parties (Article 6(2))
6.193 Subject to the qualifications in respect of Germany and Austria set out in
Article 65.1252 the existence of this jurisdiction option will bring in a third party unless
it is established that the original proceedings were instituted solely to remove the third
party from an otherwise competent jurisdiction. 253 While as with Article 6(1) the
prerequisite for its operation is that the defendant is domiciled in a Member State,
unlike Article 6(1) the provision is not itself dependent on a suit in the domicile of a
defendant. The underlying principle is the attachment of third party proceedings to the
jurisdiction applicable t o the original action. 254 It would therefore be rare for
jurisdiction over a third party to be governed by the domicile of the original defendant
where the main proceedings are no longer active. 255 While the kind of nexus required
under English law for third party proceedings may be sufficient under the Regulation or
Convention the court must also consider the Community structure. 256 If a claim for costs
from a non-party is within that structure there is no reason why it is not with in Article
6(2).257
6.194 On its face the provision provides a wide exception to the jurisdiction norm
and optional bases. So without qualification a manufacturer or initial seller of goods
may find that the court of the domicile of the vendor has jurisdiction over any claim by
the purchaser because of the claim against the vendor. A consignee of a shipper may be
brought into the shipper’s domicile or a charterer brought into the shipowner’s
domicile.
6.195 However, the European Court held in the context of the Convention that the
effect of the provision is subject to national procedure. In Kongress Agentur Hagen
GmbH v. Zeehaghe B V258 the Court held that a national court could apply its own
procedural law to refuse to consider an action on a guarantee in proceedings on the
main claim, provided that the effectiveness of the Convention was not prejudiced. In
particular it was not open to a national court to refuse jurisdiction simply on the gro und
that the guarantor was domiciled or resident elsewhere.
6.196 This decision has been seen as "startling" in that, it is said, it strikes at the
heart of the mandatory allocation of Convention jurisdiction. However given the
availability of the domicile of the third party and the nature of third party proceedings
there seems little ground for seeing the Court’s approach as remarkable or for
generalising it. It seems defensible to allow national law the freedom to control the
bringing of the action within the broad ambit of the Convention. 259 The decision, its
impact and rationale apply equally to the Regulation. But such an argument cannot
justify anti-suit injunctions—for the simple and direct reason that such a remedy would
impair the Convention or Regulation.260 Counterclaims (Article 6.3)
6.197 The jurisdiction base is directed at attaching counterclaim jurisdiction to
jurisdiction over the claim. By the express terms of the provision a claim qualifies as a
counterclaim only if it arises from the same contract or facts on which the original claim
was based. 261 It applies, however, perhaps somewhat surprisingly only where a
defendant is domiciled in a Member State. It has therefore no application where the
Regulation or Convention is applicable on a different basis (as for example because of
the subject matter of the claim or by virtue of a jurisdiction agreement). However,
"related claims" made in two jurisdictions may be heard in the court first seised ( see
Chapter 12).262 Contracts connected with rights “in rem” immovables (Article 6(4))
6.198 This provision was added by the Accession Treaty when Portugal and Spain
became contracting States. It sensibly links any contract claim relating to immovables to
any concurrent "property" claim against the same defendants. As with all the options in
Article 6 it applies only where a defendant is domiciled in a Member State and is
therefore not to be entirely equated with the "rights in rem" jurisdiction in Article 16(1).
Its ambit is further restricted to proceedings which by national law may be combined
with an action against the same defendant.
1. References to a "Member State" should be understood as referring in relation to
(i) the Regulation as all EU Member Stat es save Denmark (see Chapter 1), (ii) the
Brussels Convention as a contracting State (including Denmark).
2. See e.g. Somafer SA v. Saar Ferngas AG 33/78 [1979] 1 C.M.L.R. 490;
Shearson Lehman Hutton Inc. v. TVB 89/91 [1993] I.L.Pr. 199; Handte v. TMCS 26/91
[1993] I.L.Pr. 5; Kalfelis v. Schroder 189/87 [1988] E.C.R. 5565; Reunion Europeene
SA v. Splietoffs Bevrachtingskantoor BV Case C–51/97 [1999] I.L.Pr. 205; Frahuil SA
v. Assitalia SpA 265/02, [2004] All E.R. (EC) 373.
3. For discussion as to Convention on judgments see Chapter 28. In addition in one
instance (Art. 15 of the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters 1965) provisions of another
Convention are specifically applied by the Brussels and Lugano Conventions (Art. 20).
As to that Convention, and its replacement as to Member States from 31 May 2001 by
Regulation 1348/2000 see infra and Chapters 4, 28.
4. Regulation Arts 69, 70 as corrected (see OJ L 301/28 of 24.11.2001;
Convention Arts 59, 60 as amended by the Accession Conventions (Art. 24 of the 1978
Convention, Art. 8 of the 1982 Convention, Art. 18 of the 1989 Convention and Art. 7 of
the 1996 Convention).
5. The Maciej Rataj [1995] 1 Lloyd’s Rep. 302. But see The Bergen [1997] 1
Lloyd’s Rep. 380 infra.
6. In the Convention (Art 57(3)) "or will be". There are other changes but only to
the wording.
7. In the Convention "or will be".
8. In the Convention Art 20.
9. See text.
10. A Convention concerned generally with jurisdiction (or indeed recognition or
enforcement of judgments) would not therefore be given priority —to be so a Convention
must constitute a "special law" (see infra).
11. It could arise only if "law of that State" did not include that based on a treaty
(as to which approach see infra).
12. See the discussion on the Hague-Visby Rules infra. Compare (in relation to
copyright) the Berne Convention 1886 which refers to gover ning law rather than
jurisdiction (Art. 5(2)). See Pearce v. Ove Arup Partnership Ltd [1999] 1 All E.R.
709.
13. In State of Netherlands v. Ruffer (supra) Warner A.G. expressed the view that
if the jurisdiction rules of the "other Convention" (in that case the Ems-Dolland bilateral
Convention between the Netherlands and Germany) were not exclusive the Brussels
Convention could apply. However, the Ems -Dolland Convention simply conferred
jurisdiction and it would seem by the most ge neral provisions. The European Court did
not consider the question as it ruled the dispute to be not within the subject -matter of the
Convention (see infra).
14. But see Schlosser (para. 240) who maintains the question was "left open". Cf.
Jenard, p. 60.
15. The Po [1991] 2 Lloyd’s Rep. 206 (C.A.) (considering the Collision Civil
Jurisdiction Convention 1952 —as to which see infra). The Court also held
(consistently with the interpretative provisions now in Art. 57) that it mattered not that
the plaintiff’s state of domicile was not a party to the other Convention —although it did
consider whether the state of the domicile of the defendant had made its ratification of
the Collision Convention subject to reciprocity. The latter point seems relevant only if
the United Kingdom recognises that limitation on the application of the Convention so
far as it is concerned.
16. See fn. 15.
17. Thereby not going so far as Hobhouse J. in The Nordglimt [1987] 2 Lloyd’s
Rep. 470 who had there held that the effect of Art. 57 was indirectly to incorporate the
"other Convention" into English law.
18. Replacing the Convention of 1971 which ceased to be in force on 24 May
2002, but the 1971 Fund apparently continues along side the 1992 Fund as not all
parties have acceded to the 1992 Convention.
19. The Brussels Convention Relating to Civil Liability in the Field of Maritime
Carriage 1971 which came into force in 1975 exonerates those engaged in maritime
transport from liability in respect of damage for which an operator of a nuclear
installation is liable in accordance with (or at least to a degree as favourable as) the
Paris or Vienna Conventions. Of the EU States parties are Belgium, Denmark, Finland,
France, Germany, Italy, Latvia, Netherlands, Spain, Sweden.
20. As amended in 1963 and Additional Protocols 1 –3. There are other
Conventions relating to river navigation which may arguably be relevant as (e.g.)
Relating to the Moselle 1956 (Luxem bourg, Germany and France) the Ems -Dolland
(Germany, the Netherlands) (see fn. 13 supra) and the Danube (1865) (as revised).
21. Replaced as from 31 May 2001 insofar as all Member States save Denmark, by
Regulation 1348/2000 (see Chapter??). As to the position of Denmark see Chapter 4, fn.
12.
22. As to the scope of the Arrest Convention both in regard to provisional
measures and merits jurisdiction see Chapters 10, 15.
23. As to which see infra.
24. Articles 1, 8(1)(2). A contracting State may exclude from Convention benefits
any Government of a non-contracting State or any person who at the time of the arrest
does not have habitual residence or the principal place of business in a contracting State
(Art. 8(3)).
25. In Siamar v. Spedimex [1990] I.L.Pr. 266 the Italian Supreme Court considered
the validity of a jurisdiction agreement in accordance with the Arrest Convention in an
action on the merits under that Convention.
26. The Deichland [1989] 2 All E.R. 1066 (C.A.).
27. [1997] 1 Lloyd’s Rep. 380.
28. See fn. 5.
29. See Art. 3(3).
30. I.e. Latvia, Lithuania, Poland, Slovenia.
31. It would seem hardly conceivable that becoming a party to the Arrest
Convention would render a Member State subject to its jurisdiction but n ot able to
enforce it. The limitation to Conventions in force on 1 May 2002 must mean as regards
multilateral conventions the mutual agreement implied through accession.
32. It will come into force six months after ten states have bec ome parties (Art.
14.1). As of 1 March 2005 seven states were parties —including of EU Member States
Estonia, Latvia and Spain (as to which see below). For discussion see Chapter 15.
33. See 1952 Convention Art. 3, 1999 Convention Art. 5.
34. Cp. The Collision (Civil Jurisdiction) Convention 1952 Art. 1(1)(b). Provision
was made for such jurisdiction in various drafts but seems to have disappeared at the
Diplomatic Conference in May 1999.
35. And that a state would not become a "party" until the Convention is in force.
36. The application to persons interested who belong to a non -contracting State
may be made conditional on reciprocity ( ibid.). For application through Art. 57 see The
Po [1991] 2 Lloyd’s Rep. 206 (C.A.). In Doran v. Power [1997] I.L.Pr. 52 the Irish
Supreme Court held an action against a crew member by the estate of a deceased person
whose death was caused by a collision to be within Art. 1(1)(a).
37. This is not quite the same question as decided in The Maciej Rataj (fn. 5)—
that reference to a Convention applies only to the provisions of it. If there is no
reference to multiple proceedings the Convention does not govern that issue ( ibid.).
This approach is supported (in relati on to multiple defendants) by a wide reading of
Art. 3(3) by the Irish Supreme Court in Doran v. Power (fn. 36) and (at least in regard
to a jurisdiction agreement) by a decision of a German court on the CMR (Judgment of
Landgericht Aachen of 16 January 1976 ECD 1–57–B2).
38. As to the implementation in the United Kingdom see Chapter 2.
39. An area beyond and adjacent to the territorial sea extending not more than 200
nautical miles from the baseline of the territorial sea.
40. Amended in form only by the 1992 Protocol.
41. I.e. the Limitation Fund. See Chapter 24.
42. As to the implementation in the United Kingdom see Chapter 2.
43. 1992 Convention Art. 7(1), Protocol Art. 7(1).
44. 1992 Convention Art. 7(3), Protocol 2003 Art. 7(2)( 3).
45. The Vienna Convention (see fn. 15) contains a jurisdiction structure and
provides for recognition of judgments (Arts. XI and XII).
46. Paris Convention, Art. 13. (As substituted by the Additional Protocol; Vienna
Convention, Art. X.) A further Co nvention was agreed in 1997 (Convention on
Supplementary Compensation for Nuclear Damage). No contracting State of the 1968
Convention is a party. It is not in force. It contained jurisdiction provisions similar to
the Paris and Vienna Conventions. Both the amended Vienna Convention and the
Convention on Supplementary Compensation provide for jurisdiction in an exclusive
economic zone consistent with the Law of Sea Convention.
47. But Denmark, Finland, Germany, Gree ce, Italy, Netherlands and Sweden are
parties to the Joint Protocol (as to which see n.??)
48. [1983] A.C. 565.
49. But not if as a result of the application of "global" limitations of liability based
on tonnage as the Rules are subjected to such provisi ons by their own terms (see Art.
VIII). The Benarty [1985] Q.B. 325; [1984] 2 Lloyd’s Rep. 244. Similar reasoning
applies in respect of the Hague-Visby Rules and nuclear damage (Art. IX). Cf. Chapter
12.
50. Article 22 provides for ar bitration.
51. Held in N.Y. Supreme Court to mean actual part of discharge rather than any
specified in waybills Best Cheese Corpn v. All-Ways Forwarding International Inc.
(1994) 646 LMNL 3.
51a. Article 31 of the CMR provides a uniform set of rules as t o jurisdiction (TSM
Compagnie D’Assurances Transports v. Geisseler Transport AG [1993] I.L.Pr. 61
(Hoge Raad Netherlands). But s.31(2) does not apply to prevent jurisdiction in an
action started in country A where a later action becomes pending in country B ( Royal
and Sun Alliance v. Hi Tec Electronics A/S and Ors [2005] EWHC 1408 (Comm).
52. See (treating the CMR as the governing Convention) Agence Belgo Danoise
NV v. Rederij Hapag Lloyd AG (Rechtbank Koophandel Antwerp ) Judgment of 25 July
1976 ECD 1–57–B3.
53. Andrea Merzario Ltd v. Internationale Spedition Leitner Gesellschaft GMH
[2001] EWCA Civ 61.
54. (The Vice Chancellor, Chadwick L.J.). Rix L.J. giving a contrary opinion. The
majority thought the decision on this point in Frans Maas Logistica (UK) Ltd v. CDR
Trucking CDV [1999] 2 Lloyd’s Rep. 179 to be wrong. The German Federal Supreme
Court has taken the same approach as Frans Maas see Re Parallel Proceedings
Relating to an International Contract of Carriage of Goods By Road [2004] I.L.Pr.
20.
55. Convention Art. 45, Regulation Art. 51. As to security for costs generally as
between contracting States and the application of the non-discrimination provision of
the Treaty of Rome (Art. 7) see Chapters 14, 28.
56. As amended by the Protocol of 1976 as to its effect in English law see Chapter
3. As to its scope and effect see Gaskell 1987 NLJ 285, 322. A further Protocol of 1990
did not come into force.
57. Article 17 bis is added so as to provide for recognition and enforcement of
judgments which, subject to the power of EU States to become parties, will take
precedence over like provisions of Regulation 44/2001. As to the powe r to become
parties, 5.13 and as to judgments see Chapter 28.
58. All these states are also parties to the 1976 Protocol. Of the contracting States
to the Brussels Convention only Spain is a party to the further Protocol 1990 (not in
force).
59. Convention Art. 6a, Regulation Art. 7.
60. Of the contracting States to the Brussels Convention Denmark and Sweden are
parties to the 1967 Convention.
61. There is an express obligation in contracting States to recognise the effects of a
forced sale in the extinguishment of encumbrance (see Chapter 17).
62. See Chapter 5. In the 1993 Convention there are provisions for registration of
ships in more than one state (see Chapter 17).
63. See Haeger and Schmidt GmbH v. Compagnie Francaise de Navigation
(C.A. of Central Commission for Navigation of the Rhine). Decision of 2 March 1977,
ECD 1–57–B4. Schlosser takes the Rhine Navigation Convention to illustrate the
working of Art. 57 (paras 24 1–245).
64. Switzerland is the only other party.
65. Rights and obligations impinging on civil jurisdiction include the provision that
ships have the nationality of the state whose flag they are entitled to fly (Art. 91), the
exclusive jurisdiction of such ships, and the maintaining of a register (Art. 92),
immunity on the high seas of ships owned or operated by a State from the jurisdiction of
other states (Art. 97), prohibition on transport of slaves and cooperation in repres sion
of piracy, illicit traffic in drugs and unauthorised broadcasting (Arts 99 –109).
66. See Arts 17–26, 37–45. The right of innocent passage extends to archipelagic
waters (Art. 52).
67. See Arts 105, 106, 110, 111.
68. I.e. United Kingdom, Germany, Sweden, Finland, Denmark and Netherlands,
the eighth being Norway.
69. Article 1. Hazardous and noxious substances are also defined in Art. 1.
70. Article 3.
71. Articles 4, 5. Unless a state decides otherwise.
72. Article 10. Subject to priority (with limitation) of claims in respect of death or
personal injury the fund is to be distributed proportionally to the claims (Arts 6(4), 11).
73. Article 12.
74. Article 13, 14. As to rights of subrogation to the rights o f a person
compensated see Art. 41.
75. See Art. 1, and as to contributions see Arts 16 –23.
76. Articles 38, 39. The court in which a compensation action is brought has
exclusive jurisdiction as regards an action against the Fund (Art. 39(4)).
77. There is no definition of documents within the Convention or Regulation —
under the Convention extra judicial document appears to be geared to documents issued
by authorities and required to be brought to the attention of the recipient by official
procedure.
78. Convention Arts 5–9. Regulation 1348/2000 Articles.
79. Art. 8 although a State may declare its opposition to such service save on
nationals of the transmitting State (ibid.).
80. Arts 10, 11, 13, 15, 16.
81. Arts 2, 3.
82. Arts 5–15. There may be objection to service by diplomatic or consular
officials save on nationals of the transmitting State (Art. 13).
83. Art. 19.
84. Brussels Convention, Arts 20, 40 and Chapter 4.
85. Provision as to transmission of judicial and extra judi cial documents in general
(contained in the Annexed Protocol, Arts IV and V) are much in line with the Hague
Convention—deleted in the Regulation.
86. See e.g. Societe Luxguard v. Societe Sn Sitraco [1996] I.L.Pr. 5 (Cour
d’Appel Versailles).
87. Regulation Arts 22–24, Convention Arts 16–18.
88. As to rules governing multiple proceedings in the same or a related cause of
action see Chapter 12.
89. Regulation Art. 7, Convention Art. 6a. In addition a transitional provision of
the Convention conferred jurisdiction on courts of the UK or Ireland where a pre -
Convention contract provided for choice of law of a part of the UK or Ireland (as
appropriate) Art. 54.
90. In the Regulation Arts 2, 3 and 52 are unchanged (Arts 2, 3, 5 6) save for
deletion of references to Denmark. Article 53 (Article 57 of the Regulation) is amended
to reflect the Community concept of domicile of legal persons ( see Chapter 5).
91. If limitation proceedings have no "defendant" they will not be within the
Convention (see Chapter 4).
92. So the provisions provide an alternative to the domicile of the limitation
defendant (Schlosser, para. 23).
93. Which may be through another Convent ion (see supra).
94. The Convention Relating to Limitation of Liability 1976 has no jurisdiction
provision but it appears that a limitation fund may be set up only where liability
proceedings have been started. As to jurisdiction provisions in the Oil Pollution HNS
and Bunkers Convention see supra.
95. Maersk Olie and Gas A/S v. Firma M de Haan Case C-39/02 ECJ [2005] 1
Lloyd’s Rep. 210. As to lis pendens see Chapter 12.
96. Regulation Art. 59. Convention Art. 52.
97. Art. 60. For the UK registered office or where no such office, place of
incorporation or where no such place, place of formation.
98. As to individual employment contracts see 6.152.
99. See (in relation to insurance) Jordan Grand Prix v. Baltic Insurance (fn. 107).
100. See generally Charman v. WOC Offshore BV [1993] 2 Lloyd’s Rep. 551.
101. New Hampshire Insurance Co. v. Strabag Bau AG [1992] 1 Lloyd’s Rep.
362. Contrast the focus on consumer contracts (infra).
102. Agnew v. Lapsforsakringsbolangens A.B. [2000] 1 All E.R. 727 (construing
the Lugano Convention) in agreement with Schlosser’s view (para. 151) that it did not
call for the protective approach of the insurer. Similarly so held by the ECJ in Group
Josi Reinsurance Co. SA v. Compagnie d’Assurances Universal General Insurance
Co. [2000] All E.R. (EC) 653. Third party proceedings between insurers are not within
the special regime (GIE Reunion v. Zurich Espana Case C77/04, Judgment 26 May
2005).
103. Jurisdiction in respect of such third party proceedings does not apply in
Austria or Germany (Convention Annexed Protocol, Art. V; Regulation Art. 65.1).
104. Regulation Arts 8, 9, 11, Convention Arts 7, 8, 10 —Art. 5.5 being applied to
insurance matters (as to which see infra), Art. 8 extending the concept of domicile so as
to create a deemed domicile in the place of the branch, agency or establishment.
105. Regulation Art. 10, Convention Art. 9. Including movable property if covered
by the same insurance policy and both are adversely affected by the same contingency
(ibid.).
106. Jurisdiction in third party proceedings under Art. 11 may not be exercised in
Austria or Germany (Art. 65.1). See para. fn. 236.
107. Regulation Arts 9.1(c), 11.3, 12.2, Convention Arts 8.3, 10, 11. It does not
include claims against new parties as (a) the jurisdiction derogated from domicile (Art.
2) and had to be construed restrictively, (b) in the insurance framework there was no
right to join co-defendants or third parties, (c) to include other parties would erode the
protection of the insured, the purpose of that framework. Jordan Grand Prix v. Baltic
Insurance [1999] 1 All E.R. 289 (H.L.).
108. Convention Art. 11, Regulation Art. 12.
109. See n. 107.
110. Art 11.3, see n. 107.
111. Jordan Grand Prix v. Baltic Insurance [1999] 1 All E.R. 289 (H.L.).
112. The power to sue in a state in which there is a branch agency or other
establishment would stem from preserving Art. 5.5. By Art. 5.5 the power is l imited to
disputes arising out of the operations of the branch, agency or other establishment. See
infra.
113. Ibid. [1997] T.L.R. 562 (C.A.) (where the defendants were directors of a
company alleged to be parties to a conspiracy to defraud the insurer) the point not being
considered by the H.L. The categories "elaborated rather than defined ‘defendant’".
114. Regulation Art. 22, Convention Art. 17. See Gerling Konzern v. Italian
Treasury [1983] E.C.R. 2503; Berisford Plc v. New Hampshire Insurance Co. [1990] 1
Lloyd’s Rep. 454. As pointed out in the Berisford case there is an express reference in
the general provision to the insurance regime. As to the relationship between the two
see infra.
115. (i) in Art. 13.3 which in the Convention Art. 12.3 read simply “domiciled in
the same Contracting State” —the amendment bringing the provision into line with its
equivalent regarding consumer contracts (as to which see below); (ii) the ad dition in the
Regulation of 14.5.
116. The Directive relates to the coordination of laws relating to direct insurance
other than life insurance, and is amended by Directive 88/357 and 90/6 18.
117. Charman v. WOC Offshore BV [1993] 2 Lloyd’s Rep. 551; Tradigrain SA v.
S.I.A.T. SpA [2002] EWHC 106 (Comm.) paras 41, 42.
118. It may be that it is wider in encompassing courts of non -contracting States
(see Chapters 5, 12).
119. For a list of subjects of compulsory insurance in contracting States to the
Convention see Schlosser, para. 138.
120. Cf. the approach to and discussion of the general provision as it applies to
third parties (see Chapter 5).
121. See generally Schlosser, paras 141–147.
122. Charman v. WOC Offshore BV (fn. 116) construing the Convention.
123. Article 12(5).
124. Regulation Art. 23, Convention Art. 17. The reasoning in construing the
Convention applies to the Regulation.
125. See fn. 113.
126. As to construction of contracts to decide if a party is a consumer compare
Standard Bank of London v. Apostolakis in the English High Court [2000] I.L.Pr. with
Athens First Instance Court [2003] I.L.Pr. 29.
127. Shearson Lehman Hutton Inc. v. TVB 89/91 [1993] E.C.R. 1–139; [1993]
I.L.Pr. 199 (ECJ) (assignment to broker).
128. Shearson Lehman Hutton (fn. 123); Benincasa v. Dentalkit Srl ECJ
Judgment 3 July 1997—so a contract with a view to pursuing a trade or profession is
not within the code nor is one wh ich is part within and part outside the trade or
profession unless the part within is negligible Gruber v. Bay Wa AG Case C464/01 20
January 2005. An impression given to the other party that in a "dual purpose" contract it
is for business would put the contract out of the protective provisions ( ibid.).
129. Under the Regulation contracts for an inclusive price providing for a
combination of travel and accommodation are excluded from "contracts of transport"
and are therefore within the scope of the consumer contract code. As to such contracts
see Directive 90/134.
130. As in Rayner v. Davies [2003] 1 All E.R. (Comm) 394.
131. Intended to protect a purchaser where possession is transferred before the
price was paid in full, credit being granted by the vendor. So a contract for the sale of a
yacht after alterations, the price to be paid in instalments, and to be paid in full before
possession was transferred is not within the provision ( Mietz v. Intership Yachting
Sneek Bv [1999] I.L.Pr. 541 (ECJ)). But it is either a contract for supply of goods or for
the supply of services within 13(3) of the Convention ( ibid.).
132. As to the scope of such contracts see fn. 127.
133. Implying some positive conduct by the seller normall y before involvement of
the consumer—see Rayner v. Davies (n. 130) but requiring also reciprocal obligations
(Engler v. Janus Versand GmbH Case C-27/02 [2005] I.L.Pr. 8).
134. So, according to the Commission included are contracts concluded (i) outside
the consumer’s domicile, (ii) (just as contract concluded by telephone) via an
interactive website in the consumer’s domicile. There are concerns of those in
electronic commerce that directing activities towards a Member State may lead to
jurisdiction in all Member States not excluded by them. The matter is to be discussed
further.
135. Jurisdiction is conferred on a consumer only if the supplier is domiciled or
deemed to be domiciled in a contracting State: Brenner v. Reynolds C318/93 [1995]
All E.R. (EC) 278.
136. Convention Art. 14, Regulation Art. 16.3. The reasoning restricting a similar
provision in relation to qnsurance contracts to claims against the original plaintiff ( see
fn. 107) applies to consumers.
137. Convention Art. 15, Regul ation Art. 16.
138. 34/82 [1983] ECR 987; [1984] 2 CMLR 605.
139. See e.g. Somafer SA v. Saar-Ferngas AG 33/78 [1978] ECR 2183; [1979] 1
CMLR 490; but exceptional does not mean subservient. See Gascoigne v. Pyrah [1994]
I.L.Pr. 82 (C.A.); Bank of Scotland v. Seitz 1990 SLT 584 (Court of Session).
140. Paragraph 7. See also Peters v. ZNAV, supra fn. 134.
141. 189/87 [1988] ECR 5565. Although the court inferred that where such
proceedings are brought concurrently the entire case could be determined in the court
first seised (see Chapter 12).
142. Besix S.A. v. Wabag and anor. Case C-256/00 [2004] 1 All E.R. (Comm.)
521. Mora Shipping Inc v. Axa Assurance SA and ors [2005] EWCA Civ 1069. But it
may apply to a negative obligation in a Member State Kenburn Waste Management Ltd
v. H. Bergmann [2002] EWCA Civ 98, [2002] 1 L.Pr. 33.
143. The contracts being likely to be performed in Belgium ( Schlosser Chapter
XI).
144. A r t . 6 3 .
145. F n . 1 3 8 .
146. Ibid., paras 9, 10.
147. See Engler v. James Versand GmbH (n. 133)—the sending of a letter offering
a prize if the address, the acceptance of the prize and conditions of award is a matter
relating to contract.
148. Reunion Europeene SA v. Spliethoffs Beurachtingskantoor BV [1999] I.L.Pr.
205. See also Frahuil S.A. v. Assitalia SpA Case C-265/02 Judgment 5 February 2004.
149. Fonderie Officine Meccanicle Tacconi Spa v. HWS (Case C-334/00
Judgment 17 September 2002).
150. Handte GmbH v. TCMS 26/91 (ECJ) [1993] I.L.Pr. 5. An action by the
beneficiary of a contract between two others (based on implied trust in English law) is
to enforce the contract and therefore a matter relating to a contract: The Gulf Grain
[1995] I.L.Pr. 600. A Scottish court has construed the wording narrowly in respect of
the identical provision between England and Scotland as limited to proceedings based
in contract (Straithaird Farms Ltd v. Chattaway 1993 SLT (Sh. Ct.) 36)—applying by
analogy the Scottish interpretation of Art. 5(3) (as to which infra) but acknowledging
the wider view as to 5(1) expressed by Lord Prosser in Engdiv Ltd v. Trentham Ltd
1990 SLT 617—interpreting a case not based directly on breach of contract as within
the provision.
151. 38/81 [1982] ECR 825; [1984] 2 CMLR 667.
152. [1994] 4 All E.R. 970.
153. [1997] 4 All E.R. 641 (construing the article in Sch. 4 of the 1982 Act as
applied to jurisdictional issues between England and Scotland (as to which see Chapter
7) but principles based on Convention ( see ibid. at pp. 646, 667)) provision unchanged
in amended Schedule. See Chapter 7.
154. The minority thought issues consequential on declaration of invalidity were as
in other contexts an integral... part of the res olution of... disputes relating to contract.
The case had also split the C.A.—the majority being of the view of the H.L. minority.
155. A conclusion supported, it is said, by the conferment of jurisdiction on the
place of performance.
156. As to assessing whether such obligations are independent see 6.145.
157. But where a plaintiff claims termination of a valid contract that, it is said, may
be within the provision—the basis is the contractual obligation. Ibid. at p. 663 per Lord
Clyde.
158. [2000] 1 All E.R. 737 (H.L.). The House upheld the C.A. by a majority of 3 –
2.
159. [1997] I.L.Pr. 514.
160. But a precontractual duty of good faith not resulting in a contract is not within
the provision (See Tucconi n. 149).
161. Canada Trust Co. v. Stolzanberg (No. 2) [1998] 1 All E.R. 318 (C.A). As to
discussion of this “ standard of proof” as regards Convention jurisdiction see 5.72,
(regarding the Lugano Convention) Karlung v. Svensk Vagguide Comertex AB [1999]
I.L.Pr. 298 (Norwegian Supreme Court, Appeal Committee) and generally as to the
continued confusion between this aspect and the jurisdictional links see infra.
162. See e.g. Tesam Distribution Ltd v. Schuh Mode Team GmbH [1990] I.L.Pr.
149 (C.A.); Rank Film Distributors v. Lantern Editrice Srl [1992] I.L.Pr. 57.
163. As to a qualification in respect of Luxembourg domiciliaries ( see 6.130).
164. The Agnew case (H.L.) (fn. 158) upholding the C.A. in disagreeing with
Trade Indemnity v. Forsakrings AB [1995] 1 All E.R. 796. See also Source Ltd v. TUV
Rheinland Holding AG [1997] I.L.Pr. 514 (claim for negligent misstatement lying in
contract or tort “ related to contract” and therefore excluded from Art. 5(3) —see infra.
165. De Bloos Sprl v. Bouyer SA 14/76 [1976] ECR 1497; [1977] 1 CMLR 60.
See also Custom Made Commercial Ltd v. Stawa Metallbase Gmbh [1994] ECR 1–
2013; [1999] I.L.Pr. 516.
166. Shenavai v. Kreischer [1987] 3 CMLR 782, applied in Medway v. Meurer
(fn. 163); Sedex v. Societe Vetex [1990] I.L.Pr. 254 (Cour de Cassation) and to disputed
contracts (see Re a Jurisdiction Clause [1998] I.L.Pr. 243). The obligation
characteristic of the contract is the focal point for establishing the law applicable to the
contracts under the Rome Convention Relating to the Law Applicable to Contract 1980
(as to which see Chapter 26).
167. See Kenburn Waste Management Ltd v. H Bergmann [2002] I.L.Pr. 33.
168. Shenavai v. Kreischer (fn. 166). In English law the principal obligation of a
tonnage to be nominated charter is the obligation to nominate and not to proceed to the
loading port (Union Transport Group Plc v. Continental Lines SA [1992] 1 All E.R.
161 (H.L.)). Where there are several heads of compensation the principal obligation is
that which gives rise to the largest amount ( Societe Filtertechnick Nederland BV v.
Hoff[1998] I.L.Pr. 196 (Paris C.A.)). It is possible that there may be more than one
principal obligation leading to different jurisdictions. See e.g. The Sea Maas infra; the
Leathertex case (ECJ) (fn. 162). In a contract of carriage the obligation in question will
depend on the claim—e.g. delivery or to exercise due diligence to provide a seaworthy
ship (The Sea Maas [1999] 2 Lloyd’s Rep. 281). As to a letter of credit see Chailease
Finance Corpn v. Credit Agricole Indosuez [2000] 1 Lloyd’s Rep. 348.
169. Leathertex Divisione Sintetici SpA v. Bodetex BVBA Case 420/97 Judgment
of 5 October 1999 (ECJ).
170. See e.g. WH Martin Ltd v. Feldbinder Spezialfahrzeugwerke [1998] I.L.Pr.
794 (C.A.); AIG Europe v. Ethniki [2000] 1 All E.R. Comm 65. It is therefore for the
national court to decide whether the obligation to compensate is independent or
replaces the unperformed contractual obligat ion (ibid.). See e.g. Societe Filtertechnick
(fn. 168). For application by national courts see e.g. Medway Packaging Ltd v. Meurer
GmbH [1990] 2 Lloyd’s Rep. 112 (C.A.); Promac Sprl v. SA Sogeservice [1993] I.L.Pr.
309 (Cour d’Appel Paris); Campbell v. Van Aart [1993] I.L.Pr. 314 (Irish High Court);
Societa Kretschmer v. Muratoir (Corte di Cassazione) [1991] I.L.Pr. 361.
171. See the Sea Maas [1999] 2 Lloyd’s Rep. 281 (in fn. 174).
172. See e.g. Machinale Glasfabrieke De Maas BV v. Amaillerie Alsacienne SA
[1984] ECC 124 (District Court Arnhem) —place of payment. Compare Re the M/S
Koop (Bundesgerichtshof) [1982] ECC 333—place of performance being the specified
place of delivery.
173. [1993] I.L.Pr. 142—in the case it was arguable that the law applicable to the
contract was English or German, and those laws led to opposite conclusion as to the
place of the obligation (English law being that payment is due at the creditor’s
residence or domicile). As to identification under English conflicts rule of the place of
performance in inter bank transactions see Royal Bank of Scotland v. Cassa di
Risparmia [1991] I.L.Pr. 411.
174. [2000] 1 Lloyd’s Rep. 348.
175. Case 12/76 [1976] ECR 1473; 1977 1 CMLR 26.
176. Custom Made Commercial Ltd v. Stawa Metallbau GmbH [1994] I.L.Pr.
516. For decisions of national courts applying the principle see e.g. Mercury Publicity
Ltd v. Loerke [1993] I.L.Pr. 142; Bosma Meubel Impex BV v. Backer Gerechsthof
Leeuwarden [1991] I.L.Pr. 384; Domicrest Ltd v. Swiss Bank Corpn [1999] 1 Lloyd’s
Rep. 80 (Lugano Convention); Stoppani SPA v. Stoppani France [1992] I.L.Pr. 384
(French Cour de Cassation); Re Supply of Equipment for the Purification of Waste
Gases [1998] I.L.Pr. 77 (Lugano Convention) (Swiss Federal Court).
177. GIE Groupe Concorde v. Capitaine Commandant le navire Suhardiwarno
Pangan and ors Judgment 28 September 1999.
178. The Court (1) did not follow the Advocate General who recommended a
change to the criteria suggested and a focus on the performance of the obligation
characterising the legal relationship in question; (2) linked the retention of the current
approach to Art. 5(1) this now qualified in respect of sales of goods and provision of
services (see supra).
179. The Stawa Metallbau case (fn. 87). See also to the same effect Vienna
Convention 1980 (applied by French Cour de Cassation in Les Verreries De Saint
Gobin SA v. Martinswech SA [1999] I.L.Pr. 291 and Swiss Federal Court in Re The
Supply of Equipment for the Purification of Waste Gases [1998] I.L.Pr. 77 (Lugano
Convention)); Hague Convention 1955 (applied by French Cour de Cassation in San
Carlo Grippo Alimentari SpA v. SNC Vico [1996] I.L.Pr. 493 and Mode Jeune
Diffusion SA v. Maglificio Il Falco [1998] I.L.Pr. 812.
180. Ibid. As to agreements as to the place see infra.
181. So the place of performance in a contract of carriage will normally be the
port of unloading for the purpose of a claim for damage to cargo ( The AJP Pritt [1991]
I.L.Pr. 194 (Corte di Appello Genoa)); or the wrongful conduct about which the suit is
brought (Campbell v. Van Aart [1993] I.L.Pr. 314 (Irish High Court)).
182. So the duty to provide a machine reasonably fit for its purpose is in English
law one which occurs on delivery, and is not a continuing one dependent on the
performances of the machine even if there is an undertaking of a standard of
performance. See Viskase Ltd v. Paul Kieful [1999] 1 W.L.R. (C.A.) (a 2–1 majority
reversing the High Court judge).
183. See e.g. Bosma Meubel Impex BV v. Hacker Gerechsthof Leeuwarden
[1991] I.L.Pr. 384; SCAS (Transport) (USA) Inc. v. Adriatica SpA di Navigazione 1982
ECD 457.
184. Compare Bank of Scotland v. Seitz 1990 SLT 584; [1991] I.L.Pr. 426 (Court
of Session) (although also holding that payment being due under Scottish law at the
creditor’s place of business identified the place of performance); Hanbridge Services
Ltd v. Aerospace Communication Ltd [1993] I.L.Pr. 778 (Irish Supreme Court) with
Medway Packaging Ltd v. Meurer Maschinen GmbH [1990] 2 Lloyd’s Rep. 112.
185. Ivenel v. Schwab [1982] ECR 1891; Shenovai v. Kreisher (fn. 166); Six
Constructions v. Humbert [1989] ECR 341; Mulox IBC v. Geel’s [1993] ECR 1–4075,
[1993] I.L.Pr. 668.
186. Shenavai v. Kreischer (fn. 166).
187. Mulox IBC v. Geels (fn. 185).
188. In Mercury Publicity Ltd v. Loerke [1993] I.L.Pr. 142 the English Court of
Appeal refused to apply the employment principle to an agency contract between two
corporate entities—having regard both to the nature of the parties and the degree in
which the agent became involved in the organisational framework of the principal.
189. Employment on a fixed or floating installation above the continental shelf of
State is in that State for this purpose Weber v. Universal Ogden Services Ltd. Case-
37/00 [2002] All E.R. (EC) 397.
190. See e.g. Mulox IBC Ltd v. Geels (fn. 185).
191. See Pugliese v. Finmeccanica SpA Case C437/00 Judgment 10 April 2003;
Weber v. Universal Ogden Services Ltd (n. 189).
192. Rutten v. Cross Medical Ltd [1997] All E.R. (EC) 121.
193. Pugliese n. 191.
194. Arts 18 – 21.
195. A counterclaim may be brought by ei ther party in the court of an original
claim.
196. As specified in Convention Art. 5(1).
197. 56/79 [1980] ECR 89; [1980] 2 CMLR 204.
198. MSG v. Les Gravieres Rhenanes SARL [1997] All E.R. (EC) 384.
199. Verein fur Konsunenteninformation v. Henkel Case C-167/00 Judgment 1
October 2002; Denmark para. 6.133.
200. Danmarks Rederiforening v. Lo Landsorganisationen 1 Sveirge ECJ Case
C-18/02 [2004] 2 Lloyd’s Rep. 162.
201. 1988 ECR 5565.
202. Kalfelis v. Schroder 189/87 [1988] ECR 5565 (ECJ); Reichert v. Dresdner
Bank (No. 2) 261/90 [1992] I.L.Pr. 404 (ECJ); Reunion Europeene SA v. Spliethoffs
Beyrachtingskantoor BV [1999] I.L.Pr. 205 (ECJ).
203. Reunion Europeene SA v. Spliethoffs Beyrachtingskantoor BV [1999] I.L.Pr.
205 (ECJ).
204. Sante Fe (UK) Ltd v. Gates Europe [1991] LMLN 295; Davenport v.
Corinthian Motor Policies at Lloyd’s 1991 SLT 774.
205. Source Ltd v. TUV Rheinland Holding AG [1997] I.L.Pr. 514. But cp.
Domicrest v. Swiss Bank Corpn [1999] 1 Lloyd’s Rep. 80 where the tort and contract
claims were based on different factual conclusions —there both Arts 5(3) and 5(1)
operated as jurisdiction foundations.
206. Kleinwort Benson Ltd v. Glasgow City Council [1997] 4 All E.R. 141
(construing the Convention as adapted to the UK—see infra).
207. 21/76; [1977] 1 CMLR 284.
208. Paragraphs 17, 18. See also Schimmel Pianoforkfabrik GmbH v. Hubert
Bion [1992] I.L.Pr. 199 (Cour de Cassation). In Geobra Brankstatten GmbH v. Big
Spielwarenfabrik (1977) (District Court Amsterdam) it was held that an action could
not be brought at the place of damage once it had been started at the place of the event
(ECD 1–5.3–B5). A threatened wrong being included seems uncertain (as to its
inclusion in the draft Regulation see fn. 186).
209. Marinari v. Lloyds Bank 364/93 [1995] I.L.Pr. 737; Dumez v. Hessiche
Landesbank Case 220/88 [1990] ECR 1–49; [1990] I.L.Pr. 299. See also Krunhofer v.
Maier Case C-168/02 Judgment 10 June 2004. Waterford Wedgwood Plc v. Nagli Ltd
[1999] I.L.Pr. 9 (third party proceedings being treated as consequential damage) Bank
of Tokyo-Mitsubishi Ltd v. Baskan Gida Sanayi Ve Pazarlama AS [2004] 2 Lloyd’s
Rep. 395.
210. Henderson v. Jaouen [2002] 1 W.L.R. 2971 (C.A.).
211. Domicrest v. Swiss Bank Corporation [1999] 1 Lloyd’s Rep. 80 (disagreeing
with the decision of Minster Investments Ltd v. Hyundai Precision and Industry Co.
Ltd [1988] 2 Lloyd’s Rep. 621); Dunhill v. Diffusion Internationale [2002] 1 All E.R.
(Comm.) 950. See also for the earlier approach in relation to passing off Modus
Vioendi Ltd v. British Products Sanmefo Ltd [1997] I.L.Pr. 654; Mecklermedia Corpn
v. DC Congress GmbH [1998] 1 All E.R. 148. See also Bank of Tokyo-Mitsubishi (n.
209).
212. Compare Domiciest with Raiffeisen Zentral Bank v. Tranos [2001] I.L.Pr. 85
(Judgment 24 November 1999) and see the consideration of authority in Bank of Tokyo-
Mitsubishi (n. 209).
213. See e.g. Cronos Containers NU v. Palatin [2003] I.L.Pr. 16.
214. Shevill v. Presse Alliance SA 68/93 [1995] All E.R. (EC) 289 —a libel case
concerning publication in a number of states.
215. See Kaye, Civil Jurisdiction and Enforcement of Judgments (1987), pp.
585–586 et seq.;
216. Danmarks (n. 200).
217. n. 203. The place of final delivery or damage ascertained was rejected as
leading often to the plaintiff’s domicile and would be uncertain as it could be changed
in mid voyage.
218. Shevill v. Presse Alliance SA (fn. 214). As to the standard of proof in E nglish
law see supra.
219. Identical in Convention.
220. See Chapters 3, 15.
221. E.g. through the explosion of dangerous cargo or the escape of oil.
222. The International Conventions for the Unification of Certain Rules Relating to
Maritime Liens and Mortgages 1926, 1967 and 1993 do not encompass cargo and only
that of 1926 includes freight. None has any express jurisdictional provisions ( see
supra).
223. As well as providing a basis for domicile in a Member State if there is no
other (see supra). In the Regulation both aspects are applied to the new special
jurisdiction relating to individual contracts of employment ( see supra).
224. Somafer SA v. Saar Ferngas AG 33/78 [1978] ECR 2183; [1979] 1 CMLR
490.
225. De Bloos Sprl v. Bouyer SA 14/76 [1976] ECR 1497; [1977] 1 CMLR 60.
226. Blankaert and Willems PVBA v. Trost 139/80 [1981] ECR 819; [1982] 2
CMLR 1.
227. Somafer fn. 224.
228. But the way in which the entities are presented to outsiders dealing with them
remains relevant. See e.g. Zellner v. Phillip Alexander Securities and Futures Ltd
(Landesgericht Krefeld) [1997] I.L.Pr. 716.
229. C439/93 [1995] 1 All E.R. (EC) 531.
230. [2003] 2 W.L.R. 1286 (under the name Anton Durbeck GmbH v. Den Norske
Bank ASA).
231. A case of contract in which the nexus required may consist (as in Lloyd’s
Register) in negotiations between the claimant and the branch.
232. See e.g. The Permina 3001 [1979] 1 Lloyd’s Rep. 327. As to which see
Chapter 10.
233. As to the scope of the provision see Rinkau 159/80 [1981] ECR 1; [1983] 1
CMLR 205.
234. Convention Annexed Protocol, Art. II, Regulation Art. 61.
235. The sole change from the Convention is the addition of the proviso —
reflecting a requirement introduced by the ECJ in Kalfelis v. Schroder (infra).
236. This jurisdiction may not be exercised in Austria, Germany (Art. 65.1 —in the
same substantive terms as Convention Annexed Protocol Art. V). A suit by a person
domiciled in another Member State is to be pursuant to specified national laws
concerning third party notices. Judgments based on Art. 6(2) or on the national laws are
to be recognised in Member States (Art. 65.2). See Chapter 28.
237. Canada Trust Co. v. Stolzenberg (No. 2) [1998] 1 All E.R. 318 (C.A.);
Petrotrade v. Smith [1998] 2 All E.R. 341.
238. See The Rewia [1991] 2 Lloyd’s Rep. 325 (C.A.); The Xing Su Hai [1995] 2
Lloyd’s Rep. 11; Mecklemedia Corpn v. D.C. Congress [1988] 1 All E.R. 148.
239. See the discussion in Hough v. P. and O. Containers [1998] 2 Lloyd’s Rep.
318 (High Court) (Art. 6(2)) and see Jenard, p. 27. For a contrary view regarding Art.
6(1) see Ammerlaan Agro Proj ecten BV Les Serres de Cosquerou [1999] I.L.Pr.
(French Cour de Cassation).
240. See The Maciej Rataj [1995] 1 Lloyd's Rep. 302.
241. See e.g. The Po [1991] 2 Lloyd's Rep. 206 (C.A.).
242. However in an action in England the defendant domiciled there need not be
served before the issue of service and joinder of others.
243. See The Rewia (fn. 220); The Xing Su Hai (fn. 220); The Ikarian Reefer (No.
2) [2000] 1 Lloyd's Rep. 129 (application for costs against a non -party—not a co-
defendant).
244. See Oving Diepeveen Sturycken NV v. Berlinen Franchtschiffart [1983]
ELD 361; Societe Ley bold v. Seima (1978) ECD 1-6-R3.
245. Reunion Europeene SA v. Spliethoffe Berrachtingskantour BV [1999] I.L.Pr.
205 (ECJ)—suits by consignee against shipper sea carrier and Master of carrying
vessel (see supra).
246. Kalfelis v. Schroder 189/87 [1988] ECR 5563. Relied on as support in
Reunion (fn. 227).
247. [2001] 2 Lloyd's Rep. 339.
248. See also Andrew Weir Shipping Ltd v. Wartsila UK Ltd. [2004] 1 Lloyd’s
Rep. 1 (H.C.) in which both contract and tort claims against two defendants was held to
constitute the required connection.
249. See Gascoine v. Pyrah [1994] I.L.Pr. 82. The issue was referred to the ECJ
in Watson v. First Choice Travel but the case was removed from the Register.
250. See e.g. Gannon v. Band I Steam Packet Ltd [1994] I.L.Pr. 405 (Irish
Supreme Court). Messier Dowty Ltd v. Sabena SA [2000] 1 Lloyd’s Rep. 428 (C.A.).
Carnoustie Universal SA v. ITF [2002] EWHC 1624. See also Barclays Bank v.
Glasgow City Council [1994] 4 All E.R. 865 (England and Scotland cases not being
heard together but issues likely to be determined by H.L. —no risk of irreconcilable
judgments).
251. Issue referred to ECJ by C.A. in Watson (n. ) but case removed from register
in 2002.
252. As to which see supra and Jenard, p. 27.
253. So if there was good reason to sue the defendant in the domicile it could
hardly be said the proceedings were instituted solely to remove the third party to that
jurisdiction. See Hough v. P. and O. Containers Ltd [1998] 2 Lloyd’s Rep. 318.
254. Subject to “ exclusive” jurisdiction (see supra). As to the binding effect of
jurisdiction agreements on third parties see The Tilly Russ case (Chapter 5).
255. Waterford Wedgwood Plc v. David Nagli Ltd [1999] I.L.Pr. 9 (High Court).
256. Kinnear v. Falconflims NV [1994] 3 All E.R. 42 as interpreted in Waterford
(fn. 233). The nexus at the date of Kinnear was set out in RSC Ord. 16, r. 1(1)—claim
for contribution or indemnity, substantially the same relief or remedy or need to
determine any question relating to original claim. As to the connection between the
criteria of this rule and Art. 6(2) see also Caltex Trading Plc Ltd v. Metro Trading
International Inc. and Others [1999] 2 Lloyd’s Rep. 725.
257. Comninos v. Prudential Assurance Co. Ltd [1999] N.L.J. 1561 (C.A.); (sub.
nom.) The Ikarian Reefer (No. 2) [2000] 1 Lloyd’s Rep. 129. As to the scope of the
Regulation or Convention see supra and Chapter 4.
258. 365/88 [1980] 1 ECR 1845. For comment see Briggs [1991] LMCLQ 10.
259. See GIE Reunion europeene v. Zurich Espana Case C77/04 Judgment 26
May 2005.
260. Turner v. Grovit (ECJ) Case 159/02 [2004] 2 Lloyd’s Rep. 169, as to which
see Chapters 12, 25.
261. It applies only where the defendant’s claim would involve a separate
judgment, and not to a defence classified as such by national law ( Danvaern Production
A/S v. Schuhfabrik Otterbeck GmbH [1995] I.L.Pr. 649). For an application to a
triangular business relationship “comparable to a basic contract” see Re the Assertion
of a Set-Off and Counterclaim [2003] I.L.Pr. 543 (Regional C.A. Rostock).
262. Claims for limitation of liability may be considered by a court having
Convention jurisdiction over the liability claim ( see supra).
Chapter 7
Jurisdiction as between England, Scotland and Northern Ireland

7.1 For the purposes of Regulation 44/2001 and the Brussels and Lugano
Convention the United Kingdom is one state. However, it is made up of three constituent
legal parts—England and Wales, Scotland and Northern Ireland. Becau se these parts
have different legal systems it is domestically necessary to provide a connecting factor
between a dispute and a particular part if the jurisdictional factor provided by the
regimes is a link with the United Kingdom as a whole, or conversely with a "place" in
the United Kingdom. In addition the United Kingdom adapted the Brussels Convention
structure to disputes having connections with two or more of the three parts. For
proceedings started on or after 1 March 2002 the adaptation was amended so as with
one exception to be based on the Regulation. Allocation of jurisdiction within the
United Kingdom has therefore three functions:
(a) For Regulation and Convention purposes where jurisdiction is conferred on a
"place in a Contracting State";
(b) Domestic allocation to a "part of the United Kingdom" following Regulation or
Convention allocation to the United Kingdom as a whole;
(c) Apart from the special jurisdiction as to contract adaptation of the Regulation
framework to intra United Kingdom disputes.
7.2 The allocation for the purposes of (b) and (c) is accomplished by the Civil
Jurisdiction and Judgment Acts 1982 and 1991 and the Civil Jurisdiction and Judgments
Order 2001 1 largely through the same general structure provided for and set out in
section 16 and Schedule 4 (as qualified by Schedule 5) of the 1982 Act. That structure
applies either if a defendant is (or would be) domiciled in the United Kingdom or the
subject matter of the proceedings creates exclusive jurisdiction. 2 Only in two other
types of case is it necessary to provide for allocation of Regulation jurisdiction within
the United Kingdom (domicile of a trust or consumer and the deemed domicile of an
insurer supplier in a consumer contract and an employer in an individual employment
contract). In all other cases the relevant court can be identified directly ( see infra).
7.3 Where the Regulation or Convention jurisdiction is based on domicile there is
a need to provide for domicile in a place or part of the United Kingdom. The criteria for
that assessment are set out in the 1982 Act (section 41(4), (5), (6) as regards
individuals and section 42(4), (5) as regards corporations or associations) 3 and are
discussed in Chapter 6. 1. Regime Allocation to a Place in the United Kingdom
7.4 Where jurisdiction is conferred on the courts of a place in a Member State, to
confer jurisdiction on the courts of the part of the United Kingdom in which the place is
will require an allocating step only where domicile is the jurisdiction base. In that case
it is necessary to particularise from domicile in the United Kingdom to the appropriate
part. As indicated above the applicable criteria are set out in the provisions generally
providing for domicile (see Chapter 6). 2. Domestic Allocation Following Allocation
to the United Kingdom as a Whole
7.5 In four contexts it is necessary to localise th e jurisdiction by substituting "part
of the United Kingdom" for "the United Kingdom" and applying the criteria for
jurisdiction accordingly:
(i) the general jurisdiction rule based on the defendant’s domicile;
(ii) exclusive jurisdiction because of subject matter (this being conferred on
"courts of a Member State");
(iii) jurisdiction based on the domicile of a trust or a consumer;
(iv) the "deemed domicile" of an insurer supplier in insurance and consumer
contract matters or (in the Regulation) an employer in an individual employment
contract.4
In all other cases jurisdiction is conferred on the courts of a place, the courts in
which proceedings are pending or (in the case of jurisdiction based on arrest of salva ge
of cargo or freight) in the court under the authority of which the arrest has or could have
taken place.5 Problems may arise if a jurisdiction agreement refers to “the courts of the
United Kingdom”. Although such an agreement may literally comply with t he regime
requirements it must be open to argument that the agreement is uncertain because of the
differences between the parts of the United Kingdom. There is no criterion for the
necessary selection within the agreement. 6 If such an agreement is not vali d the
jurisdiction will depend on the applicability of the Regulation or Convention as
appropriate and any other jurisdiction base within it. 3. The Intra United Kingdom
Structure
7.6 This structure was set out in Schedules 4, 5 of the 1982 Act. This was initially
adapted from the Convention, but as regards proceedings instituted after 1 March 2002
is governed by Schedule 4 as substituted by, and Schedule 5 as amended by, the 2001
Order.7 Schedule 4 is with some exceptions an adaptation of the Regulation. 8 A case is
within the provisions if:
(a) (subject to specified exclusions) the subject -matter of the dispute would be
within the scope of the Regulation; and
(b) a defendant is domiciled in the United Kingdom or (subject to amendments
specified) the matter is one which if the Regulation applied would be within Article 22
and therefore be within the exclusive jurisdiction of the appropriate Member State.
7.7 Unless within the Regulation any case falling outside the statutory framework
will therefore be subject to the jurisdictional rules of each part of the United Kingdom,
the English rules being mainly based on service of process. If the defendant is not
domiciled in the United Kingdom but is domiciled in another Member State the
substance of the Regulation will apply; if the defendant is not domiciled in the United
Kingdom nor in another Member State the Convention applies only to the limited extent
discussed in Chapter 5, and in neither case does the intra United Kingdom framework
apply. The scheme is domestic
7.8 In determining any question as to the meaning or effect of the structure regard is
to be had to the Regulation, to any relevant principles laid dow n by the European Court
and the Schlosser and Jenard Reports. 9 However, the regime is domestic. In Barclays
Bank Plc v. Glasgow City Council 10 the Court of Appeal referred a question of
construction of Schedule 4 to the European Court. The issue conce rned two provisions
directly adapted from the Convention. The question was whether a claim based on
unjust enrichment, money having been paid under a contract later held to be void, fell
within Article 5(1) ("matters relating to a contract") or Article 5(3 ) ("tort delict or
quasi delict") or neither. The Schedule does not incorporate Convention provisions into
United Kingdom law but takes the Convention as a model only. The United Kingdom
courts are not required to apply the Convention unconditionally. Repl ies by the
European Court cannot be advisory and given the context of the enquiry the Court had no
jurisdiction.11 This applies equally to the adaptation of the Regulation. The role of Civil
Procedure Rules
7.9 To be consistent with and implement the refor mulation in the 1982 Act of intra
United Kingdom jurisdiction rules in English law, a claim form may be served out of the
jurisdiction without the permission of the court in respect of a matter falling within the
Civil Jurisdiction Act 1982 provided certai n conditions are met (see Chapter 9).
Scotland and Northern Ireland are equated to a territory of a Member State for the
purpose of these conditions. 12 Applicability of the Adapted Framework Subject-
matter—"civil and commercial matters" Matters within the adapted framework
7.10 All matters within the scope of the 1968 Convention save those excluded by
Schedule 5 are within the adapted allocation framework. Schedule 5 may be amended
by Order in Council following a positive resolution of each House of Parliament. 13
Matters excluded
7.11 The following matters possibly relevant to maritime claims are excluded by
Schedule 5 as presently drafted 14:
(i) Winding up proceedings under the Companies Act 1985. Winding up on
insolvency is excluded from the Regulation (see Article 1.2): winding up a solvent
company must take place at its place of incorporation and therefore it would be
inappropriate to submit it to rules of allocation;
(ii) Proceedings under the Protection of Trading Interests Act 1980 for recovery of
sums paid as multiple damages (as to which see Chapter 12);
(iii) Proceedings brought pursuant to a statutory provision or rule of law
implementing any Convention given priority over the Regulation 15 (and therefore
outside the Regulation) (as to which see Chapter 6);
(iv) Proceedings in Scotland in an Admiralty cause where the jurisdiction of the
Court of Session or, as the case may be, of the sheriff is based on arrestment in rem or
ad fundandam jurisdictionem of a ship, cargo or freight;
(v) Proceedings brought pursuant to jurisdiction conferred on a court in respect of
a designated area of the Continental Shelf (Petroleum Act 1998, section 11) or adjacent
seas. Connecting links with the United Kingdom
7.12 The structure applies when by the Convention either the defendant is
domiciled in the United Kingdom or exclusive ju risdiction is allocated to the United
Kingdom by virtue of Article 22 (i.e. by virtue of the subject matter of the dispute). The
general pattern of the regime
7.13 The pattern of the adapted regime is similar but not identical to that of
jurisdiction allocation as between the United Kingdom and other contracting States.
Subject to exceptions, a defendant must be sued in the court of the part of the United
Kingdom in which he is domiciled. There are both mandatory and optional exceptions
matching in part those of the Regulation. So a case within the adapted Article 22 must
be brought in the part specified, the appearance of a defendant will create jurisdiction
and a jurisdiction agreement may (but not must) form the foundation for jurisdiction. 16 In
specified circumstances a plaintiff may opt to sue a defendant in a part other than that in
which he is domiciled.
7.14 Apart from the exclusion of the matters set out in Schedule 5 ( see supra)
differences between the Regulation and the adapted framework i n respect of initial
proceedings are—
(i) the omission of special jurisdiction rules relating to insurance —thereby making
it subject to the general jurisdiction regime
(ii) the change of the seat of a company from an exclusive jurisdiction base to an
optional alternative in respect of company proceedings
(iii) the addition to links as grounds of optional jurisdiction alternative to the
defendants domicile of the place of property in relation to property or security rights
(iv) the change of the general provision regarding jurisdiction agreements from a
mandatory to an optional jurisdiction base. Particular Jurisdiction bases Primary basis
of the domicile of the defendant in a part (Articles 2 to 4)
7.15 Articles 2 and 3 as adapted provide:
(rule 1)
Subject to the rules of this Schedule, persons domiciled in a part of the United
Kingdom shall... be sued in the courts of that part.
(rule 2)
Persons domiciled in a part of the United Kingdom may be sued in the courts of
another part of the United Kingdom only by virtue of the rules 3 –13 of this Schedule.
7.16 The laws of the United Kingdom do not draw any jurisdictional distinction in
civil and commercial matters between nationals and non-nationals. The provision of
Article 2 of the Convention equating the two in respect of domiciliaries is therefore
irrelevant. That part of Article 3 outlawing rules of exorbitant jurisdiction is also
omitted, but the omission has no substantive ef fect. The jurisdiction bases are those
provided by the statute—subject to the exceptional categories and the domicile of the
defendant. Given the adoption of the defendant’s domicile in the United Kingdom and of
Article 22 as the boundaries of the framewor k Article 4 (apart from Article 22 referring
to defendants not domiciled in a contracting State) has no relevance. It is therefore
omitted. "Exceptional category" cases —i.e. exceptions to domicile in a part of the
United Kingdom as the basis of initial jur isdiction allocation (Articles 22, 23)
Mandatory criteria
Exclusive Jurisdiction (Article 22)
7.17 Article 22 is applied (rule 11) with the exception of Article 22.4 (dealing
with patents, trade marks, design and other similar rights) and that part of Arti cle 22.2
referring to decisions of organs of a company or association. 17 Where the Convention
confers jurisdiction on the " courts of a Contracting State" it is conferred on the " courts
of the part of the United Kingdom".
Appearance (Article 24)
7.18 Article 24 is directly adapted (rule 13) by the substitution of "a court of a part
of the United Kingdom" for "a court of a Contracting State".
Jurisdiction Agreements (Article 23)
7.19 Article 23 is adapted to create optional rather than exclusive jurisdi ction (see
infra). Domicile and optional alternatives
Specific subject-matter jurisdiction (insurance, consumer and individual
employment contracts)
7.20 The Convention provisions relating to insurance are not included, thereby
subjecting insurance matters to the basic jurisdictional framework based on the
domicile of the defendant and the exceptions there listed.
7.21 The provisions relating to consumer contracts (Articles 15 –17) (with the
express exclusion of insurance) and individual employment contracts (Articles 18 –21)
are adapted directly (rules 7–10). As with the Regulation the special jurisdiction is
expressly subject to the provision for jurisdiction based on the operations of a bran ch
agency or other establishment (Article 5(5)). In addition it is made subject to an added
plaintiff’s option for property claims (as to which see infra).
Plaintiff’s options instead of the defendant’s domicile 18
General Alternatives (Articles 5 to 7)
7.22 Link with dispute (rule 3). With two exceptions Article 5 (providing
categories of case in which a plaintiff may opt for a jurisdiction specified) is directly
adapted to provide for suit in a part of the United K ingdom against a defendant
domiciled in another part. One exception is the omission in relation to jurisdiction in
contractual issues of any definition of the place of performance. So there are no separate
categories of sale of goods or provision of servic es (see Chapter 6). There is an added
provision that a person domiciled in a part of the United Kingdom may be sued:
"in proceedings—
(a) concerning a debt secured on immovable property; or
(b) which are brought to assert, declare or determine proprietary or possessory
rights, or rights of security, in or over movable property, or to obtain authority to
dispose of movable property.
in the courts of the part of the United Kingdom in which the prop erty is situated."19
7.23 Rule 4 provides:
Proceedings which have as their object a decision of an organ of a company or
other legal person or of an association of natural or legal persons may, without
prejudice to the other provisions of this Schedule, be brought in the courts of the part of
the United Kingdom in which that company, legal person or association has its seat."
Together with the omission of the provision relating to a decision of an organ of a
company from the adapted Article 22 ( see supra) the effect is to provide for optional
instead of exclusive jurisdiction based on the seat of the corporation.
7.24 Multi parties and multi claims (rule 5). Article 6 (providing for multi-party
optional jurisdiction) is directly adapted. However, the ground for its application—risk
of irreconcilable judgments—is greatly reduced at least in terms of final judgments by
the role of the House of Lords. 20
7.25 Limitation of liability (rule 6). Article 7 (providing jurisdiction on issues of
limitation of liability in courts hearing liability arising from the use or operation of a
ship) is directly adapted.
7.26 Article 23 as amended and adapted (rule 12) reads:
"(1) If the parties have agreed that a court or the courts of a part of the United
Kingdom are to have jurisdiction to settle any disputes which have arisen or which may
arise in connection with a particular legal relationship, and, apart from this Schedule,
the agreement would be effective to confer jurisdiction under the law of that part, that
court or those courts shall have jurisdiction.
(2) The court or courts of a part of the United Kingdom on which a trust instrument
has conferred jurisdiction shall have jurisdiction in any proceedings brought against a
(3) Agreements or provisions of a trust instrument conferring jurisdiction shall
have no legal force if they are contrary to the provisions of rule 9, or if the courts whose
jurisdiction they purport to exclude have exclusive jurisdiction by virtue of rule 11. 21
The provision differs from the text of Article 23 in the Regulation in that:
(a) By virtue of the limits on applicability of the framework the provision applies
only if the defendant is domiciled in the United Kingdom;
(b) There are no requirements of formality and the validity of the agreement in all
respects is subjected to the law of the part of the United Kingdom on which jurisdiction
is conferred;
(c) There is no provision for exclusive jurisdiction22: where there are a number of
possible jurisdiction bases a suit may be brought in any one applic able, raising the
question of competing jurisdictions;
7.27 As a consequence there is little change in the national laws of each part. The
sole effect of the adapted provision is to subject the validity of the jurisdiction
agreement to the rule and, where appropriate, requirements in relation to consumer or
individual employment contracts (see infra).
7.28 The "multiple proceedings" provisions (Articles 27 –30—as to which see
Chapter 12) are not adapted, thereby leaving the d oor open for forum non conveniens.23
Section 49 of the Act specifically provides that nothing should prevent any court in the
United Kingdom "from staying, sisting, striking out or dismissing any proceedings
before it, on the ground of forum non conveniens or otherwise, where to do so is not
inconsistent with the 1968 Convention". There is thereby preserved the jurisdiction to
uphold or not a jurisdiction agreement falling within the adapted framework as against
any other permitted "Convention" base.
7.29 Jurisdiction agreement in consumer and individual employment contracts.
Articles 17, 21 are adapted without modification (rules 9, 10(5)) and any jurisdiction
agreement in a contract within those categories of the Regulation ( see supra) must
thereby comply with the additional requirements. Procedural safeguards
7.30 The adaptation of Articles 19 and 20 (the foundation of the obligation of a
court to declare lack of jurisdiction of its own motion (as to which see Chapter 4) are
adapted directly (rules 14, 15). The rules provide that a court in one part of the United
Kingdom has to make such a declaration if:
(a) it is seised of a case principally concerned with a matter within the exclusive
jurisdiction of a court in another part; or
(b) if a defendant domiciled in another part does not appear unless the jurisdiction
is derived from the adapted Regulation.
Further, a court is obliged to stay the proceedings if not satisfied that necessary
steps have been taken to ensure that t he defendant has received or that he has been able
to receive the document instituting the process so as to enable him to prepare his
defence. Provisional measures (Article 31)
7.31 Jurisdiction under the Regulation (as to which see Chapter 14) is directly
adapted (rule 16).
1. SI 2001/3929.
3. This applying to the Convention only —see Chapter 6.
4. (Convention) 1982 Act, ss.10, 16 (and Schedule 4) 43, 44 (Regulation) 2001
Order Sch 1, paras 7, 9, 10, 11, 12, Sch 2, para 3.
6. See Chapter 5—although in The Komninos S [1991] 1 Lloyd’s Rep. 370 the
selection of British courts was construed by the Commercial Court as the English High
Court.
7. The format differs from the adaptation of the Convention in that it is not set out
according to the Articles of the Regulation. Apart from the contract rule the structure is
similar to that of the adapted Convention subject to the amendments disc ussed in
Chapters 5, 6. Given the date when the adapted Convention ceased to be applicable the
text discussed is that of the adapted Regulation. As to the earlier text see the 3rd edition
of this work.
8. See the 2001 Order, Arts 3–6.
9. Section 16(3). For application of Convention (and hence Regulation) concepts
see e.g. (Art. 5) (England) Sante Fe v. Gates [1991] LMLN 295; Barclays Bank Plc v.
Glasgow City Council [1994] 4 All E.R. 865; (Scotland) Bank of Scotland v. Seitz
1990 SLT 584; Universal Steels Ltd v. Skanska Construction UK Ltd [2003] Scots
C.S. 271; Davenport v. Corinthian Motor Policies 1991 SLT 774; Engdiv Ltd v.
Trentham Ltd 1990 SLT 617 (not cited in Davenport); Strathaird Farms v. Chattaway
1993 SLT (Sh. Ct.) 36; (consumer contracts) Waverley Asset Management Ltd v. Saha
1989 SLT (Sh. Ct.) 87.
10.[1994] 4 All E.R. 865.
11. Kleinwort Benson Ltd v. Glasgow City Council C346/93 [1995] All E.R.
(EC) 514, as distinct from national adoption of Community law (see Leur Bloem v.
Inspecteur der Belastingdienst/Ondernemigen Amsterdam 2 [1998] 2 W.L.R. 27
(ECJ).
12.See CPR 6.19(1). Prior to the CPR there was some doubt whether leave was
required in all Admiralty actions (see Chapter 9).
13.Section 17. It has been statutorily amen ded but not as regards any matters
relevant to maritime claims (see Companies Act 1989, s.200; Children Act 1989, Sch.
13; Social Security (Consequential Provisions) Act 1992, Sch. 2.
14.Also excluded are proceedings concerning registration or validity of patents,
trade marks design or other like rights, maintenance payments to local authorities,
rectification of Register of Aircraft Mortgages and such proceedings as are mentioned
in s.188 of the Financial Services Act 1986.
15.By the Regulation Art. 71. Reference to Art. 57 (of the Brussels Convention) is
retained but its effect is uncertain.
16.There are no provisions as regards "lis pendens" leaving intact the forum non
conveniens principle (see Chapter 12).
17.As to the seat of a corporation (i.e. the domicile) for the purposes of Art. 16(2)
see Chapter 6. Article 4 provides an optional jurisdiction in respect of decisions of
organs of a company (see infra). Jurisdiction in respect of patents etc. is allocated
according to general principles apart from the Convention.
18. For examination of English/Scottish jurisdiction in regard to 6(1) see
Kleinwort Benson v. Glasgow City Council [1994] 4 All E.R. 865 (C.A.), in regard to
Arts 5(1), 5(3), ibid. [1997] 4 All E.R. 641 (H.L.) the approach being identical to that
appropriate to Convention obligations.
19. Para. 3(h) reflecting the jurisdictional ground of property within the UK ( see
CPR 6.20(10) and Chapter 9). In relation to (b) raising the question of the appropriate
date—in Kleinwort it may have been taken to be the date of the hearing. But despite the
nature of the claim it would more normally be the issue or service of the claim form
(see Chapter 9) (as to the applicable date under the Regulation see Chapter 6).
20. Kleinwort Benson v. Glasgow City Council [1994] 4 All E.R. 865.
21. Rule 9 limits the availability of jurisdiction agreements regarding consumer
contracts, rule 11 relates to exclusive jurisdiction based on subject matter.
22. The question of whether an agreement is exclusive in non exclusive is for the
law governing the agreement McGowan v. Summit at Lloyd’s Court of Session, 12 June,
2002.
23. For application of the principle see Cumming v. Scottish Daily Record and
Others, The Times, 8 June 1995, Drake J. acknowledging that a previous decision of his
to the contrary was wrong (as to which see Foxe v. Scotsman Publications Ltd (1994)
T.L.R. 84).
Chapter 8
The Lugano Convention—Divergences from Regulation 44/2001 or the

Brussels Convention
8.1 The Lugano Convention 1988 follows faithfully the pattern of the Brussels
Convention. 1 It remains in force alongside the Regulation and the Brussels Convention. 2
The parties to it are the EU Member States prior to the ten states acceding in 2004,
Iceland, Norway, Poland and Switzerland. According to the terms of accession of the
ten states it is desirable to become parties to the Convention. Apart from Poland no su ch
state is yet a party. As with the Brussels Convention it applies to legal proceedings after
its entry into force in the state of origin. 3 It varies from the Convention only in the
following respects: (i) there is no central interpret ing judicial authority 4 equivalent to
the European Court; (ii) provision is made for the accession of states not members of
the Community or the Free Trade Association (Article 6 1); 5 (iii) the applicability of
other Conventions (under Article 57) may be w ider insofar as the non-EU state are
parties to such Convention; (iv) provision (now spent) was made for jurisdiction in
maritime matters in respect of States not parties to the Arrest Convention for a period of
three years or until they become parties to that Convention; 6 (v) there are differences in
the jurisdiction regimes relating to (a) individual employment contracts; 7 (b) rights in
rem in immovable property; 8 (vi) there is a need to fit together the Brussels and Lugano
Conventions; 9 (vii) there are distinctions in the recognition and enforcement of
judgments (see Chapter 28).
8.2 The rules as to the applicability, jurisdiction allocation and procedural
safeguards are identical to the Brussels Convention. The pattern is therefore that,
subject to Convention provisions (including the reference to other Conventions), a
defendant is to be sued in the state of his domicile and domicile is to be defined by
national law. Rules of "exorbitant jurisdiction" are outlawed as between contracting
States.10 Jurisdiction bases other than the defendant’s domicile are identical to the
Brussels Convention. 1. Applicability of Article 57—Priority of Other Conventions
8.3 Insofar as another convention is applicable because a party to the Brussels
Convention is a party to it, the circumstances are as outlined in Chapter 6. Of the
Conventions there discussed the states parties to the Lugano but not the Brussels
Convention (Iceland, Norway, Poland, Switzerland) are parties as follows:
(1) The Arrest Convention 1952
Norway, Poland and Switzerland.
(2) The Arrest Convention 1999
Not in force, no parties as yet.
(3) The Collision Jurisdiction Convention 1952
Poland, Switzerland.
(4) The Oil Pollution Conventions 1992
(i) The Liability Convention
Iceland, Norway, Poland and Switzerland.
(ii) The Fund Convention 1992
Iceland, Norway, Poland and Switzerland (but not parties to 2003 Protocol).
(iii) The Bunkers Convention
Not in force, none.
(5) The "nuclear incident" Conventions
(i) The Paris Convention 1960 (as supplemented by the Brussels Convention 1963
and Additional Protocols
Norway and Switzerland.
(ii)The Vienna Convention 1963 and Protocols 1992 and 1997
Poland (not a party to 1997 Protocol)
(iii) Convention Relating to Liability of Operators of Nuclear Ships 1962
Not in force, no parties.
(6) Convention concerning carriage of goods by sea
(i) The Hague Rules 1924 and Hague Visby Rules 1968
(Hague Visby) Norway, Poland and Switzerland.
(ii) The Hamburg Rules 1978
None
(iii) The Multimodal Convention 1980
Not in force, none.
(iv) The CMR (Carriage of Goods by Road)
Norway, Poland, Switzerland.
(7) The Athens Convention Relating to Carriage of Passengers and their
Luggage (and Protocol of 1976)
Poland, Switzerland.
(8) The Limitation Convention 1976 (and Protocol 1996)
(1976 Convention) Norway, Poland, Switzerland (Protocol) No rway.
(9) The Liens and Mortgages Conventions 1926, 1967 and 1993
(1926) Poland, Switzerland
(1967) (not in force) Norway
(1993) none
(10) The Rhine Convention
Switzerland.
(11) The Law of the Sea Convention
Iceland, Poland, Norway.
(12) The HNS Convention
Not in force, none.
(13) The Service of Documents Convention
Norway, Poland, Switzerland. 2. Individual Employment Contracts (i)
8.4 Such an agreement has force in relation to an individual employment contract
only if entered into after the dispute has arisen. The two Conventions differ in that under
the Brussels Convention as amended by the Accession Treaty of Spain and Portugal
(after the Lugano Convention) a pre-dispute agreement would be valid insofar as it is
invoked by the employee to sue in courts other than the defendant’s domicile or place of
performance. So the employee currently has the greater advantage under the Brussels
Convention. 11 (ii) Place of Performance (Article 5(1))
8.5 The Lugano Convention provides that where an employee does not habitually
carry out his work in any one country the place of performance is the place of business
through which he was engaged. In the Brussels Convention as amended by the
Accession Treaty of Spain and Portugal it is only the employee who can take advantage
of suit in those circumstances. On the other hand the approach of the Lugano Convention
would allow an employee to sue in the state of his domicile, this being rejected in the
amended text of the Brussels Convention. 12 3. Relationship to Brussels Convention
(Article 54B)
8.6 In matters of jurisdiction the Lugano Convention is to be applied in any case in
which (i) the defendant is domiciled in a contracting State not a member of the European
Communities or (ii) jurisdiction is conferred on such a state as is referred to in (i) by
virtue of Article 16 (by nature of the dispute) or by a jurisdiction agreemen t under
Article 17.
8.7 Nothing in the Lugano Convention is otherwise to prejudice the Brussels
Convention, but clearly if looking at the Brussels Convention alone that Convention
does not apply, there will be no restriction on the application of the Lugano Convention.
So where the Brussels Convention has no application because the issue involves a
contracting and a non-contracting State it leaves the field open to the Lugano Conven tion
if both states are parties to that Convention.
8.8 When the Lugano Convention is given precedence by the presence of one of the
specified connecting factors this will remove the case from all aspects of the Brussels
Convention. As all parties to the Brussels Convention are also parties to the Lugano
Convention this should make little difference as the jurisdiction bases are common as
between the Conventions.
8.9 The provisions for mutual consideration of judgments under the two
Conventions (see fn. 3) is reflected in the case law. Decisions of the European Court
under the Brussels Convention carry great weight in the interpretation of the Lugano
Convention and the approaches of national courts do not seem to differ. The emphasis
on autonomous concepts seem to be applied to the Lugano as well as the Brussels
Convention. 13 Decisions on the Lugano Convention are considered in Chapters 4 –6 with
those of identically worded provisions of the Brussels Convention. 4. Regulation
44/2001
8.10 There are no provisions in Regulation 44/200 1 in relation to the Lugano
Convention. As a consequence EU Member States which are also parties to the Lugano
Convention will in any conflict be bound by the Regulation. The Lugano Convention is
not given priority as a Convention as it is concerned generally with jurisdiction and
judgments.
8.11 As the Regulation may affect issues connected with contracting and non
contracting states (see Chapters 6, 12) there is some room for conflict where the
Regulation and Lugano Convention are couched differently. That occurs wherever the
Brussels Convention and Regulation differ ( see Chapter 6) and as with the Brussels
Convention in respect of individual employment contracts in regard to (a) jurisdiction
agreements and (b) places of suit by the employer and employee ( see 8.5).
1. As with the Brussels Convention there is a report which may be considered in
ascertaining the meaning and effect of Convention provisions —in this instance by Mr P.
Jenard and Mr G. Moller 1990 OJ C189/07.
2. Discussions have continued since 2002 on a revised Convention with the thought
that the EU would become a party (see Chapter 1).
3. Article 54 Davy International Ltd v. Voest Alpine Industrian Lagenbau GmbH
[1999] 1 All E.R. 103 (C.A.). As to the application in respect of multiple proceedings
where the later set of proceedings is after entry into force see ibid. and (in respect of the
Brussels Convention) von Horn v. Cinnamond [1997] All E.R. 913 (ECJ) and Chapter
4.
4. There is an obligation on courts of contracting States to pay due account to
decisions of courts of other contracting States when applying and interpreting the
Convention (Protocol No. 2). Provision is made for a system of exchange of information
concerning judgments of the ECJ and specified national courts under the Lugano and
Brussels Conventions (ibid.). For an unsuccessful attempt to obtain a reference to the
ECJ see Agnew v. Lansforsakringsbolagens [1998] I.L.Pr. 231 (C.A.).
5. Poland became a member on 10 April 1999 and became an EU Member State on
1 May 2004.
6. Article 54A—the states being Denmark, Greece, Ireland, Iceland, Norway,
Finland and Sweden. All save Iceland (in regard to which the Lugano Conven tion came
into force on 1 December 1995) are now parties to the Arrest Convention.
7. Article 17(5).
8. Giving the state of the defendant’s domicile joint jurisdiction in specified
circumstances in relation to tenancies for private use for a maximum peri od of six
months (Art. 16(1)).
9. Article 54B (see infra).
10. Article 3. Adding to Art. 3 of the Brussels Convention rules of jurisdiction in
Austria, Iceland, Norway, Finland and Switzerland (Austria and Finland after becoming
contracting States to the Brussels Convention of EU Member States are now therefore
also parties to the Regulation).
11. Retained in the Regulation Art. 21 replacing the Brussels Convention —as to
which see Chapter 5.
12. Thereby incorporating the approach of the ECJ in Six Constructions Ltd v.
Humbert [1989] ECR 341, holding on the unamended text that the place of engagement
could not be taken into account.
13. See e.g. Agnew (6.115). But conflicts between national laws a re inevitably of
more relevance, see e.g. as to lis pendens Polly Peck International v. Citibank NA
[1994] I.L.Pr. 71 (see Chapter 12).
Chapter 9
Enforcement of Maritime Claims by an Action “in personam” 1. The Claims

for Which an Action “in Personam” Is Available1
9.1 The Supreme Court Act 1981, section 2 1(1) provides:
"21.—(1) Subject to section 22, an action in personam may be brought in the High
Court in all cases within the Admiralty jurisdiction of that court."
Restrictions created by judicial development or statutes are based on, for example,
the relative lack of English contact or power (e.g. over foreign land), immunity from suit
(as in the case of a foreign government) or the lack of contact between English
proceedings and the issue to be heard (e.g. collision actions). They are discussed in
Chapter 12. 2. Procedure of Enforcement The Civil Procedure Rules 1998
9.2 The structure of the procedure for making claims was radically reformed on 26
April 1999 on the coming into force of the Civil Procedure Rules (CPR). Apart from
transitional arrangements regarding proceedings initiated prior to that date, 2 the Rules
replace the Rules of the Supreme Court 1965 (RSC) and County Court Rules (CCR)
Much of the substance of the rules previously in force is contained in the CPR and in
some instances are re-enacted. The Rules are supplemented by Practice Directions.
9.3 The rules are intended to bring the procedure up to date. Greater control is
given to the courts to manage cases and obligations placed on the parties to co -operate
in the resolution of disputes. Under the Rules of Court while the courts heeded
discretion in respect of most types of non-compliance rigidity had set in through lack of
alternative powers and precedent. Under the Civil Procedure Rules the courts have
wide powers of case management including exercising many powers of its own
initiative. The powers include striking out a case for non -compliance with a rule. But
alternatives include payment of costs, deprivation of or increase in interest on damages
awarded (depending on the party at fault or money to be paid into court). 3 There should
therefore be less scope for parties to delay proceedings 4 or affect the substantive
resolution by reliance on procedural points, and less chance of the whole dispute
turning on a rigid procedure rule.
9.4 There is a fundamental change in approach to interpretation of the procedural
framework. It may sound curious that such a change i s indicated by the "overriding
objective" to "deal with cases justly". But that serves to indicate that technicality should
not be at the forefront, and a possible change in the type of case seen as binding. "Case
management" means greater control by the c ourts over the course of proceedings and
there will be even less readiness than formerly for appeal courts to interfere with the
exercise of the discretion by the trial judge. 5 Decisions as to the meaning and
interpretation of the former Rules of Court sho uld therefore be treated with caution.
However, the broad statement of Lord Woolf M.R. that "earlier authorities are no longer
generally of any relevance once the CPR applies" must be read in the context in which it
was made—the changed powers and elements with respect to delay by the parties.
Jurisdictional aspects
9.5 The rules cannot and did not introduce any change in principle in the
establishment of jurisdiction. Apart from jurisdiction based on specified contacts with
England, the fundamental dependence on service of process continues ( see infra). The
"writ", however, becomes the "claim form", service of documents is treated in one part
of the Rules and the procedural requirements for plaintiff and defendant then set out.
Order 11 of the Rules of the Supreme Court (included as such) relevant to service of
process out of England was replaced as from 2 May 2000 by section 111 of CPR Part 6.
The hearing of maritime claims
9.6 Maritime claims in the broad sense are normally heard either by the Admiralty
or Commercial Court. 6 Proceedings in both form a specialist list. The Civil Procedure
Rules apply generally subject to the "specialist" provisions in Parts 58 and 61. Part 58
applies to both subject to Part 61 (Admiralty Jurisdiction and Proc eedings).7 The Rules
are supported by Practice Directions and the Admiralty and Commercial Courts Guide.
The Guide is "designed to ensure effective management of proceedings" and non
compliance may lead to sanctions in costs. Admiralty claims
9.7 Such a claim is any within the Admiralty jurisdiction of the High Court as set
out in the Supreme Court Act 1981 s.20. Specified Admiralty claims must be started in
the Admiralty Court and other such claims may be started there. 8 The Court may transfer
a claim to the Commercial list, a Mercantile Court or any other appropriate court. Any
transfer to the Court may only be made by a judge dealing with Admiralty claims. 9
Commercial claims
9.8 For the purpose of the CPR these are claims arising out of trade or commerce
and specifically include (among others) any claim relating to a business document or
contract, carriage of goods, insurance, construction of ships and arbitration. There is no
mandatory rule that any commercial claim must be started in the Commercial Court. The
Court may transfer a claim to any other specialist list. Any transfer to the Court must be
made by a judge dealing with commercial claims. 3. Nature of the Action “in
Personam” as Compared to the Action “in Rem”
9.9 "Action in personam" as a categorisation of the actions normally available to
claimants pursuing a civil claim other than one based on status is rarely used in English
law save in Admiralty to distinguish it from an action in rem.10 The provision,
therefore, simply indicates that the maritime claims specified in section 20 of the
Supreme Court Act 1981 or any claim otherwise within the Admiralty jurisdiction may
be enforced by the method which would be availa ble were they not maritime. 11
9.10 An "action in personam" is the method of enforcement of a claim by which it
is sought to compel the defendant to act or cease from acting. The claim may or may not
be directly enforcing some obligation directly imposed on the defendant. It could be
based on the defendant’s act—on the allegation that he has caused injury, damage or
loss, or as regards proprietary interests, that a claim created through the act of anot her is
enforceable against a defendant who had nothing to do with its creation. So,
enforceability of a mortgage will lie against the mortgagor and third parties who
succeed to the mortgagor’s title, and a demise charterparty should be enforceable
against a purchaser of a ship. On the other hand, apart from statutory provisions
permitting a consignee of goods to sue and be sued, 12 an action on a contract of carriage
is enforceable only by the shipper against the carrier 13; but whether it is the consignee
through statutory provision or the shipper who sues it may be by an action in personam.
9.11 So far as enforceability by an action in personam is concerned, it is the nature
of the claim which dictates its scope, not the action which enforces it. Enforcement
through an action in personam applies equally to claims based directly on the
defendant’s act (such as tort or breach of contract) and claims which may not be so
based (i.e. property claims). In the Admiralty context, therefore, it is simply a label
distinguishing the mode of enforcement from enforcement through an action in rem.
9.12 The action in rem (to be considered in Chapter 10) is an action connected
essentially with a specified thing (in the Admiralty context ship, cargo or freight). While
historically it may have been considered as lying against the thing it must now be
accepted as lying against a person having an interest in the thing. However it is seen, it
is focused on a thing relevant to the claim (as, for example, a ship carrying goods said
to be damaged or a ship colliding with another). Subject to some English judicial
comments to the contrary, although it is aimed at an interested person the claim is
limited to the thing and neither the person who is liable in the claim nor any other assets
are subject to liability. A claim enforceable by an action in rem may also be enforceable
concurrently by an action in personam (see infra).
9.13 Neither the action in personam nor the judgment obtained in such an action
will of itself provide any security for the claim through any interest in the assets of the
defendant. The claimant has no preferred status nor any ability to assert his claim
against any person other than the defendant simply because it is an action in personam.
Any security aspect will follow from the nature of the claim and not the legal process
available to enforce it. Any judgment will be enforced against the defendant’s as sets
through the general procedure for execution of judgments.
9.14 On the other hand, the issue of an in rem claim form makes the plaintiff a
secured creditor in respect of the thing in relation to which the writ is issued. The
"thing" may be sold by the court and the proceeds made available for creditors in rem.
4. Jurisdiction in Actions “in Personam”
9.15 Jurisdiction is founded on a jurisdiction base specifying a contact between the
dispute and England. Such bases are discussed in Chapter 3. Where no specific
jurisdiction base applies jurisdiction in an action in personam depends on:
(i) the service of a claim form in England; or
(ii) service of a claim form out of England where necessary with permission of the
court; or
(iii) submission to the jurisdiction through express agreement or participation in
the proceedings in court.
9.16 Where submission is the basis there may well need to be compliance with the
procedure for service. 5. Jurisdiction through Service of a Claim Form
9.17 The traditional general rule of English law is that jurisdiction is created either
by service of the writ or other document initiating the action (now the claim form) or by
"submission" of the defendant. While, as has been seen in Chapters 4 –8, considerable
inroads have been made into the operation of the principle, it remains where no
statutory jurisdiction base applies. In those circumstances the service of the claim form
has the dual role of creating jurisdiction and procedurally commencing the action. 14
Where a jurisdiction base does apply, the claim form and its service continue its
procedural role. The relevant provisions as to the nature of the claim form and service
are identical whether it has a dual or simply a procedural role and are set out in th e
Civil Procedure Rules 1998.
9.18 Basing jurisdiction on service of the document initiating proceedings in
England is to focus on a highly artificial and transient link between the defendant and
England. A mere visit is enough for the connection to be mad e.15 The increasing number
of jurisdiction bases perhaps testifies to the inappropriateness of asserting power over a
dispute through a link which may have nothing to do with it and little to do with any
connection with the defendant. Judicial construction made that link even more tenuous
by holding that under the former rules presence on issue of the writ may in some cases
be sufficient for jurisdiction. 16 However, procedural changes by the Civil Procedure
Rules in the requirements of service seem to lead to a conclusion that service may not
always mean jurisdiction or in the light of the power of dispensation that jurisdiction
need not depend on service (see p. 212).
9.19 Apart from a jurisdiction base the assertion of jurisdiction on a defendant or
event outside England is treated as an exception to the "presence" rule, perhaps
necessarily on more substantive links than mere presence. The regime (now set out in
CPR 6.20) lies at the heart of much of the business of the Admiralty and Commercial
Courts. It remains based on a link with the defendant and it cannot be used by claimants
for the resolution of disputes not only by them but against th em by others, the claims of
which were not within the regime. 17 6. The "in Personam" Claim Form
9.20 Despite its jurisdictional role the writ was treated as essentially a matter of
procedure. That continues with the claim form but practice is changed. The changes
under the Civil Procedure Rules should aid in reducing situations in which jurisdiction
depends on procedural technicality. But the procedural essence of establishing
jurisdiction through process remains.
9.21 An action in personam within the Admiralty jurisdiction (i.e. enforcing a
maritime claim) is begun by issue by the court at the request of a party of an in
personam claim form in Admiralty 18 by the Admiralty and Commercial Registry or a
High Court district registry. 19 The claim form must contain a concise statement of the
claim or in a "Part 8 claim" (where there is unlikely to be a substantial dispute of fact) 20
the question which the claimant wishes the court to decide. The contents must be
verified by a statement of truth, specify the remedy sought and marked for Commercial
(or presumably the Admiralty) Court. Save in a collision claim or dispensation by the
Court particulars of claim must be either contained in or served with the form or within
28 days of filing of acknowledgment of service indicating an intention to defend. 21 The
claim form must be accompanied by forms for defending the action, admitting the claim
and acknowledging the service. 22
9.22 The claim form must be served by the claiman t on the defendant in England or
(when permitted by the Civil Procedure Rules) out of England. 23 The permitted methods
of service of documents are set out in the Rules 24 and a court may dispense with service
or "for good reason" authorise service by "an al ternative method", i.e. one not specified
in the Rules.25 This power had replaced the much more defined and narrow power to
order "substituted service" in cases of impracticability of personal service. 26 Parties to
a contract may specify any mode in relati on to that contract. 27 As is apparent from its
wording the rule is not simply a remaking of the former rule, and an order might be
made if there was difficulty (rather than impracticability of service by a permitted
method).28
9.23 The date on which a document is deemed to be served is specified in respect
of each method of service listed in the rules and it is irrelevant if the defendant receives
notice of it in some other way. 29 The time may be extended (see 9.32). To dispense with
service cannot be used to bypass the restrictions on that power. 30
9.24 Both the power to dispense with service and to authorise service by an
alternative method may be used retrospectively. 31 However the power to dispense with
service cannot be exercised retrospectively to avoid the limitations on the extension of
time to serve where failure to serve a claim form within the period permitted requires
an extension to notify the defendant. However, where (e.g.) the claimant has made an
ineffective attempt to serve by a permitted method and the defendant has had his
attention drawn to the claim the circumstances are different. In those circumstances there
is no need for service to notify the defendant. The court may then in an exceptional case
dispense with the service. 32 It is for the claimant to show such a case 33 and it is a
question of considering the factors relevant in each individual case such as the nature of
the case, the conduct of the parties and the prejudice the decision might cause to the
parties.34
9.25 The strictness of approach indicates the importance for practitioners in
keeping to the procedure and the time limits. The Court of Appeal has held that the
"deemed service" provisions are not incompatible with the requirement of in fair
hearing in Article 6 of the Human Rights Convention. A strict procedural rule was not
disproportionate being necessary to obtain justice for both parties and bearing in mind
that the responsibility for failing to comply is that o f the party.
9.26 The general practice that the claim form will normally be served by the court
does not apply to claims started in the Admiralty and Commercial Court Registry. 35 So
in any claim in the Admiralty jurisdiction service must, as before, be by the parties and
under the Rules normally on a solicitor. There is general power to dispense with
service of any document. 36 But there seems little importance attached or even attention
given to this aspect in discussing the power to dispense with service o f a claim form.
There would seem considerable uncertainty if the defendant is served in England with a
claim form by an unauthorised method and at the date of dispensation of service the
defendant is not in England. It just may be that this underlines the curiosity of continued
reliance on a procedural step as a jurisdictional foundation. Where a claim form has
been issued but not served a defendant may require service or discontinuance of the
action.37 In commercial and (save in limitation claims) admiralt y cases a defendant
should file an acknowledgment of service in every case ( see infra).
9.27 An in personam claim form must be served within four months of the date of
issue if service is within the jurisdiction and within six months where it is to be serv ed
out of the jurisdiction. 38 There were considerable difficulties of interpretation as to the
applicable period of validity of writs in the equivalent rule introduced in 1990, the
distinction between the two depending on whether leave was required to serv e out of
the jurisdiction.39 An amendment coming into force on 16 December 1996 redrew the
boundary, putting into the category of six month validity, writs issued with leave to
serve out or "for service out of the jurisdiction" and endorsed as required by the rules
as showing leave was not required.
9.28 As under the Civil Procedure Rules proceedings are commenced by the issue
of a claim form, equivalent to the amended earlier rule the six month period attaches
only to a claim form issued to be served out o f the jurisdiction. It must follow that if a
claim form is issued and is not endorsed for service out of the jurisdiction, any need to
do so appearing later can only be satisfied by a further claim form.
9.29 A factor in the construction of the previous ru le prior to the 1996 amendment
was the view that a writ not served within the specified period remained valid and the
irregularity could be waived by the defendant. 40 The current rule is expressed entirely
in terms of obligation to serve. Given that wording the ability of courts and parties to
extend time limits and the power to remedy the error, the expiry of the specified limit
can hardly be said to make the claim form a nullity. Concurrent claim form
9.30 The CPR is curiously silent on concurrent claim forms, the relevant
provisions of the RSC not being reflected. Yet the practice appears to be assumed by a
reference in the Admiralty and Commercial Courts Guide 41 and appears to continue. 42
9.31 Prior to the CPR there were considerable complexities of validity through
dependence on the original. This was particularly so where the original was subject to
the time limit for service within England (four months) and the concurrent writ was
sought for service out of the jurisdiction in regard to which the time limit was six
months. The approach under the CPR separates the question of service out from any
period of validity of a claim form to be served in England. Extension of time The
claim form
9.32 The claimant may apply for an order extending the period. 43 The discretionary
power is focused on extension of time for service and the discretion fettered in respect
of service in England only if the application is made after the end of the period of
service. In those circumstances the court may make an order only if the claimant has
taken all reasonable steps to serve and has been unable to do so and has acted promptly
in making the application. 44 Whether the parties can agree to extend the period 45 after its
expiry or expiry of the limitation period seems uncertain but, subject to unnecessary
delay and limitation of actions (see Chapter 11), there would seem no good reason not
to recognise such an agreement.
9.33 An extension of time may be sought to allow service out of England of a claim
form marked only for service in England or a concurrent writ. This raises the question
of which period of validity governs —the four months applicable to the original or the
six months relevant to service out and whether the discretion to extend is limited as for
service in England. Under the pre CPR regime if the application was made during the
four–month period it was valid for service for six months from the date of issue of the
original.
9.34 Under the CPR there is jurisdiction to extend or give permission to serve out
on application made at any time within the six -month period, and that the discretion
remains at large whenever within that period the application is made. 46 Particulars of
claim
9.35 The strict regime relating to the claim form does not apply to particulars of
claim. Failure to serve a claim form leaves a defendant in ignorance of the claim,
whereas lack of particulars would enable a defendant to seek an order for delivery or
dismissal of the action. The matter is therefore one for the exercise of the general
discretion as to remedy failure to comply with a rule ( see 3.10).47 The former rule
(RSC Order 6, rule 8) compared
9.36 The provision is radically different to the former equivalent rule. First, the
focus of the rule on the duration of validity of the writ led to complex judicial
construction of the effect on the validity of the writ of th e expiry of the period. 48
Secondly, no distinction was drawn as to the timing of an application before or after the
expiry of the period of service. Thirdly, the extension could be made only for periods of
four months or any longer period up to 12 months if it would not be reasonably possible
to serve the writ within the four months.
9.37 Judicial construction led to the requirement of "good reason" for extension
being a prerequisite for the exercise of the discretion to extend. The expiry of any
limitation period or the period for service for a claim was a factor in considering either
or both as parts.49
9.38 As a consequence of the difference in approach from the former rule
authorities on the interpretation of that rule must be treated with circumspection,
although the effect of any extension on a limitation period remaining a strong material
factor.50 There seems little doubt that given the wide curative powers of the rules and of
agreement of the parties, lack of service is not to be equated with lack of validity.
9.39 There is a general power in the court to extend or shorten the time for
compliance with any rule and the failure to comply with a rule or practice direction
invalidates the proceedings only if a court so orders. Particularly in the light of the
power to apply for extension and its limitations, the power of the parties to agree on a
variation of the time limit, 51 and the moves against delay, the specified periods m ust
provide a normal rule and impose a general obligation. Under the former rules the
general power to rectify any noncompliance with the rules was in contrast to the
specific powers of extension (particularly as they were construed). 52 There is much less
contrast (if any) in the CPR between the discretionary power to extend and the power to
deal with non-compliance. There is therefore much less need to demonstrate
justification in relying on the general power. Amendment of a claim form
9.40 There are wide powers of amendment of a statement of case (which by
definition includes a claim form and particulars of claim not included with the claim
form),53 leave of the court or consent of all other parties being required where the
amendment is to be made after service.54 The power to amend is based on the principle
that the object of an action is to decide the rights of the parties and the rectification of
errors which can be corrected without injustice to the other party. So a court may add,
omit or substitute a party or add or substitute a new claim. 55
9.41 The Civil Procedure Rules do not affect the consequences of an amendment
nor the restrictions following from the expiry of the limitation period. The general effect
of an amendment is to amend the writ as from its issue, but there is no "relation back" so
as to resurrect a cause of action ended because of a substantive contractual or statutory
time bar.56 However, for the purposes of the Limitation Act 1980 and other specified
limitation provisions 57 an amendment relates back to the issue of the writ. With an
exception relating to personal injury, such an amendment may be permitted after the
expiry of the limitation period only (a) if the new claim arises substantially out of the
same facts as the old, 58 (b) the addition or substitution of a new party because the name
given originally was in mistake for the new party, 59 or (c) a claim made originally
cannot otherwise be maintained by or against an existing party or the original party has
died or has been declared bankrupt and the interest or liability has passed to a new
party.60 7. Service in England Individuals
9.42 Subject to (i) any method of service authorised by the court or contractually
agreed (ii) dispensation of service or (iii) any address for service already given a claim
form may be served 61 in England or Wales personally on an individual defendant or his
agent where the defendant is overseas and the claim relates to a contract enter ed into
through the agent in this country. 62
9.43 Such service on an individual may be by leaving it or posting by first class
post to the usual or last known residence, or, where applicable, through a document
exchange or fax or any other method of service 63 permitted by the court, service by each
particular method deemed to occur on a date specified in the rules. 64 It is irrelevant
whether notification occurred at some other date ( see 9.19A). Service must be on an
authorised solicitor rather than the defendant when the solicitor has notified the claimant
of the authorisation. 65 Unlike the former rules there are no provisions for deemed
service through acceptance of a claim form by a solicitor or acknowledgment o f
service.66 Service in England to avoid service out?
9.44 Service out of England by a contractually agreed method is subject to any
permission needed. 67 On the other hand the rules continue to provide for service on an
agent in England instead of a defendant outside where the dispute relates to a contract
entered into in England through the agent. 68 Secondly, there are no express limitations in
this regard on the power to dispense with service, to authorise service in a manner other
than specified in the rules or service through leaving the claim form at the "usual or last
known residence". The provision in respect of the agent while perhaps understandable
in procedural terms is simply inconsistent with the accepted basis of jurisdiction in
personam.
9.45 The rule authorising service by a method not specified in the rules is not
restricted to service within England. 69 Further it would seem that such service in
England may apparently be authorised (even on a defendant’s sol icitor) if there is
difficulty in serving the defendant out of England. 70
9.46 It is not "good reason" to order alternative service in England on a foreign
defendant where there was no difficulty in service out of England where the aim was
simply to establish jurisdiction in England rather than another EU State. The convention
on service within the EU would be bypassed for a course unconnected with service. 71
The question remains whether service would be permitted in England where there are
no applicable international agreements.
9.47 The critical and basic jurisdictional function of service seems to be getting
lost in the wish not to put technical procedural aspects at the heart of consideration of a
case. The overcoming of difficulties of s ervice is procedurally desirable only if the
jurisdictional consequences are at least considered. And while jurisdiction is linked to
service but this is absent from rules of service, lack of procedural rigour can only mean
a yet further dilution in the contact between defendant and England lying at the heart of
the current jurisdiction structure.
9.48 Under the old rules substituted service could be used to bypass the need to
serve in England to establish jurisdiction only if the defen dant was present there at the
date of issue.72 Although the jurisdiction point was there taken into account, this reduces
the contact required for jurisdiction to a meaningless and technical point of time, having
no relation to the defendant. The developme nt of rule and application seems simply to
underline this reduction.
9.49 In Barclays Bank of Swaziland v. Hahn73 the House of Lords in construing
the former rules accepted that, apart from the provisions for service out of England, to
establish jurisdiction there must be service of the writ on an individual defendant
physically in England. Both the power to serve an agent instead of a defendant and the
use of substituted or other method of service are contrary to that decision. In relat ion to
the provision for service through a writ sent to a residence and where a defendant was
then out of the country, the former rules (as judicially construed) provided for service to
be deemed to occur when he entered. That route, however, depended on t he availability
of rebuttal of the presumed date of service. In the current rules there is no provision for
rebutting the deemed date of service. It follows that if on that date the defendant is out of
the country there is no jurisdiction. Corporations
9.50 A body incorporated in England may be served under statute by postal service
at its registered office 74 or under the Civil Procedure Rules by any of the methods
applicable to individuals at the principal office or any place of business with a
connection with the claim. 75 Personal service must be on a director, secretary or other
similar officer. 76 A body incorporated outside Great Britain which establishes a place
of business there (an overseas company) has a statutory obligation under the Companies
Act 1985 to register with the Registrar of Companies and to provide the names of
persons authorised to accept service of process. 77 By the Act unless the company has a
branch in Great Britain it is sufficient for service if the claim form is addressed to that
person and served by post or left at the address given, 78 and if no name or address is
supplied by the corporation, service may be on any place of business in Great Britain. 79
However, a company incorporated outside the United Kingdom and Gibraltar which h as
a branch in the United Kingdom must be served at that branch in respect of business at
least partly carried on by the branch. 80 Alternatively, under the Civil Procedure Rules
the company may be served by any method applicable to individuals or at a plac e of
business or if incorporated but not registered at any place where it carries on
activities.81
9.51 Because of the wording of section 692 of the Companies Act 1985 even if the
overseas company has ceased to be registered and no longer carries on such business,
process may still be served on the person named in the registration. 82 This in effect
extends jurisdiction based on the "presence" (construed in relation to corporations as
carrying on business) to former presence. In so holding the court pointed out the need to
protect creditors from corporations running up debts and then leaving the country while
not subjecting corporations long departed from the jurisdiction. The problem canno t be
satisfactorily resolved without getting away from the equation of service of a claim
form and jurisdiction. It underlines the need to base jurisdiction on a substantive link. 8.
Steps Following Service Acknowledgement of service
9.52 Save in limitation claims83 in a maritime claim the defendant must file an
acknowledgment of service of the claim form. 84 This is in contrast to the rules applying
generally which focus on the particulars of claim as the basic document in cases not
within CPR Part 8 (as to which see 9.21)—the different practice applying because of
the usual complexity of particulars of claim. Save as provided by the Court or otherwise
in the rules, the acknowledgment must be filed within 14 days of the service of the claim
form.85 Failure to file an acknowledgment may lead to a default judgment. 86 Particulars of
claim and defence
9.53 In cases originating in the Admiralty and Commercial Registry, particulars of
claim may be served with the claim form. This will be unl ikely and if not subject to
extension by agreement of the parties or order of the Court, the general rule is that the
particulars must be served not more than 28 days after acknowledgment of service.
9.54 The process in respect of a defence mirrors that in regard to particulars of
claim.87 So the general rule is that the period for serving and filing a defence is 28 days
after service of the particulars of claim. In Admiralty and Commercial claims the
parties may agree an extension beyond the generally applicable period of a further 28
days.88 Failure to file a defence renders the defendant liable to default judgment. 89
Disputing the court’s jurisdiction 90
9.55 The High Court has inherent jurisdiction t o decide if it has jurisdiction. 91 To
dispute the existence or exercise of jurisdiction a defendant served with a claim form
must save in limitation claims, file an acknowledgment of service and save in collision
and limitation within the period specified, make the appropriate application. 92 There is
no "need" to file a defence before the hearing of the application. 93 If the application is
unsuccessful the acknowledgment ceases to have effect a further acknowledgme nt may
be filed within 14 days or such period as the court may direct. 94 Conduct amounting to
submission to jurisdiction
9.56 Failure to acknowledge service or the filing of a further acknowledgment is to
be treated as acceptance of the jurisdiction "to tr y the claim" 95 but failure to make the
application is not of itself such acceptance. 96 It is necessary to approach any step in the
proceedings save the acknowledgment and application with great caution to avoid any
implied submission. 97 However, after acknowledgment indicating an intention to contest
the jurisdiction only unequivocal conduct will waive the challenge while the time for
making the application has not expired. 98 An application for extension of time for
service of a defence is not of itself such a waiver. An appearance to contest a freezing
order is only a waiver if the defendant agrees to an order until trial. 99
9.57 An acknowledgment of service may be filed upon the issue of a claim form in
rem (see infra) but there is no provision for that action on the issue of a claim form in
personam.100 It is, however, provided that a court may not only set aside service of a
claim form but also the claim form itself. It may be therefore that, for example, an
application may be made to set aside a claim form which is not served 101 but, if so,
whether an acknowledgment of service is required is uncertain. No doubt the curative
power of the court will be adequate to deal with any procedural uncertainty. Challenge
to the exercise of jurisdiction
9.58 Whether an act of participation is submission to the jurisdiction on the merits
or simply acknowledging the power of the court whether to exercise it w ill depend on
the act.102 Under the CPR it may be argued that the failure to serve the appropriate
acknowledgment of service might lead to the acceptance of the existence and exercise of
jurisdiction.103 However, in its context of the rules as a whole, the wording seems to
refer only to "existence" (i.e. acceptance of "jurisdiction"). Further, as the existence is a
prerequisite of deciding on the exercise, logically the failure to acknowledge service
should not debar a party from contending that the jurisdi ction should be exercised by
declining to consider the merits.
9.59 On the other hand it is conceivable that the courts might take the view that
effective case management puts the burden firmly on a defendant who is notified of (i.e.
served with) a claim to indicate as a preliminary matter any reservations to the court
dealing with the matter. Flexibility in the latter approach could be provided by the
general power of the court to rectify any procedural error. 104
9.60 An application for a stay of proceedin gs is not a challenge to jurisdiction but
a challenge to the exercise of jurisdiction —it may or may not indicate there has been
submission to the jurisdiction. 105 However, considering an application for a stay of
substantive proceedings when there was a co ncurrent challenge to jurisdiction would
not necessarily mean that the court assumed jurisdiction over the substance. 106 Similarly
an application for a stay under the Arbitration Act 1975 is not submission to the merits
but to the jurisdiction of the court to decide if it has jurisdiction. 107 Through an Action
“in Rem”
9.61 A claim in personam may be pursued concurrently with a claim in rem.108
Even if a claim in rem only is brought it was established prior to the introduction of
acknowledgment of service that an "appearance" to an action in rem forms the basis of
an action in personam109 and the action continues as both in personam and in rem—
sometimes termed a "hybrid action". 110 Such a consequence of appearance in an " in
rem" action bears out the "procedural" view of the action in rem—that it is but a way to
persuade the defendant to come to court; but its continuance with "lien" aspects once the
defendant has come to court is hardly consistent with such an approach.
9.62 The question of submission in thi s context goes to whether any act of the
defendant in proceedings in rem short of actual appearance in court will found an action
in personam affected any right to dispute the Court’s jurisdiction. Failure to
acknowledge service or issue
9.63 Just as with a claim in personam in Admiralty proceedings a defendant in a
claim in rem must serve and file an acknowledgment of service. 111 Further, in respect of a
claim in rem acknowledgment may be served on issue of a claim form by any person
wishing to defend.112
9.64 There is no modification of the Civil Procedure Rules applicable generally as
to acceptance of jurisdiction through the non -serving of an acknowledgment of service
or not making an application for a declaration of lack of jurisdi ction.113 It would seem to
follow that such an omission in relation to service of the claim form in rem would
amount to submission in personam. However, the non-serving of an acknowledgment
after issue but prior to service could not amount to submission in personam, first
because it is not mandatory and secondly because that procedure has no application to
an in personam claim.114 Action in relation to arrest
9.65 Save where the beneficial ownership of property has changed since the issue
of a claim form because of judicial sale or there is a relevant Convention, a claimant in
an action in rem is entitled to arrest of maritime property in relation to which the claim
in rem is brought (see Chapter 10). Action taken to prevent the arrest or t o obtain the
release of property arrested may be a caution against arrest or the giving of security. In
neither case can it be said that there is submission to jurisdiction on the merits. 115 There
is a clear distinction between acts in relation to security (particularly when given as
right to a claimant) and those related to the merits. 116 It seems now to be recognised that
it is not enough to found jurisdiction in personam that action is taken in relation to
"security" on an action in rem.117 The concept of “in rem” submission “in personam”
9.66 The readiness to found jurisdiction in personam on a step in an "in rem"
action shows the schizophrenic approach of English law to maritime claims. If, as in the
case, a defendant cannot defend an in rem action without creating in personam
jurisdiction there seems little reason to persist in the in rem/in personam distinction so
far as initiation of proceedings is concerned. Why not adopt the civil law approach,
recognise the real targets as those inter ested in the ship and confer a "maritime
privilege" on certain claims?
9.67 A step towards this end was taken by the House of Lords in 1997 in The
Indian Grace,118 in recognising as a fiction that the then action in rem had as its target
anything or any person other than those interested in the ship in relation to which it was
brought. The House was unaccountably uncomfortable with the concept that a "maritime
lien" (enforced by action in rem) could result in an interest in a ship independent of the
liability of a shipowner and enforceable against a purchaser. But such concepts are
entirely acceptable and accepted as property interests. So such interests currently seen
as attached to an action in rem should be appreciated as flowing directly from the claim
rather than through a different "cause of action". Arrest as a concept would then fall into
place as jurisdiction creating and ensuring that the property is available for enforcement
of the security. 10. Service of a Claim Form outside England
9.68 Service of an in personam claim form outside England is allowed without
permission of the court if under a statute or rule the court has power to determine it 119
and, in particular, in respect of claims falling within the Civil Jurisdiction and
Judgments Acts 1982 (as amended by the 1991 Act and 2001 Order), 120 i.e. within the
EU Regulation on Jurisdiction and Judgment (44/2001) or Brussels or Lugano
Convention. For an enactment to be the ground for service without permission it must
indicate on its face that it "is expressly contemplating" proceedings without any contact
point conferring jurisdiction (such as the defendant being within the juri sdiction).121
Service outside England is allowed with permission of the court in any other case
falling within one of the categories specified in CPR 6.20 or, in respect of arbitration
matters, CPR 62.5, 16 and the plaintiff persuades the court to exercise its discretion in
allowing service.122
9.69 The claim form will be valid for service for a period of six months. Where
permission is not required the claim form must contain a statement 123 of the ground of
entitlement to serve. 124 The mistaken use of procedure applicable to requirements of
permission may be cured by amendment. 125 Service not requiring permission
9.70 Service of a claim form out of England without permission is permitted
jurisdiction is conferred by statute on grou nds making such service irrelevant as the
basis of jurisdiction.
The categories (set out in CPR 6.19(1)) are where
(a) by the Civil Jurisdiction and Judgments Act 1982 as amended by the 1991 Act
and 2001 Order the High Court has jurisdiction and (i) ther e are no pending
"proceedings concerning the same claim" in the United Kingdom, or (as applicable) a
Brussels or Lugano Convention State or an EU State party to Regulation 44/200 1 and
(ii) the defendant is domiciled in the United Kingdom, 126 the proceedings are such that
because of the subject matter there is UK jurisdiction or jurisdiction is conferred on an
English court by agreement under either Convention or the Regulation
(b) by enactment the High Court has power to hear and determine although the
defendant is not in England 127 or the act giving rise to the claim did not take place in
England. 128
Enactments expressly conferring jurisdiction in respect of maritime claims on
contacts other than those specified include those based on Conv ention jurisdiction
regimes enacted into English law. So, for example, the Athens Convention 1974
concerning the carriage of passengers and luggage provides for jurisdiction in claims
linked to the carriage 129 and the Collision (Civil Jurisdiction) Convent ion 1952 for the
courts of the defendant’s habitual residence. 130 The Civil Jurisdiction and Judgments
Acts 1982 and 1991 (EC Regulation 44/2001 and the Brussels and Lugano
Conventions)
9.71 The ability to serve a claim form w ithout permission does not entirely
coincide with such Regulation or Convention based jurisdiction. There are excluded:
(i) Conventions given precedence over the Brussels or Lugano Convention by
Article 57 of each Convention thus excluding any jurisdicti on founded on a Convention
not enacted into English law but ratified by the United Kingdom ( see Chapter 6);
(ii) jurisdiction in respect of a limitation claim because of jurisdiction in respect
of a liability claim other than based on jurisdiction agreem ent or where the defendant
was not domiciled in the United Kingdom (e.g. appearance by the liability plaintiff or
arrest under the Arrest Convention) 131;
(iii) claim for interim relief by virtue of s.25 of the Act where the conditions for
service without permission are not met. So in 1989 it was held that the service of a
summons seeking the grant of a Mareva injunction (now “ freezing order” ) in respect
of proceedings in France against a defendant domiciled in Saudi Arabia required
leave.132 Service requiring permission133
9.72 The categories of case in regard to which permission may be given are set out
in the Civil Procedure Rules. 134
9.73 An application for permission may be made without notice to a master and
must be supported by an written statement setting out the case for service, that the
claimant believes there is a reasonable chance of success. The equivalent arbitration
provision (62.16) does not require a statement as to the chance of success. The
permission is indicated by the decision of the court or master being placed on the claim
form.135 A defendant may apply to set aside the permission. 136 The claimant’s task
where permission is required
9.74 Until the decisions of the House of Lords in The Spiliada137 and Seaconsar
Far East Ltd v. Bank Markasi Iran 138 (1993) there was no certain analysis of the
requirements for permission (or "leave" as it then was) under RSC Order 11, rule 1(1)
or any other provision. Rather, there were many authorities dealing in differing ways
with what seems to have been seen as a general discretionary power based on the
showing that a claim fell within the relevant category and that the pl aintiff’s case was
sufficiently strong for service out. 139 The effect of the two decisions was to identify
three distinct aspects and the standard of proof applicable to each. In particular, the
Seaconsar decision emphasises the importance to the plaintiff of establishing the claim
as within a "service out" category and showing that England is the most appropriate
forum. That done the strength of the plaintiff’s case need be no more than showing that
there is a serious issue to be tried.
9.75 It was held in the Seaconsar case that to obtain leave to serve a writ out of
England in a case asserted to fall within RSC Order 11, rule 1(1), a plaintiff must show
that—
(i) there was a "good arguable case" that the claim falls within one of the speci fied
categories of the rule regard being had as to whether the question will be revisited at the
substantive hearing (see 9.68)140;
(ii)on the merits there is a serious issue to be tried;
(iii) England is the appropriate forum. 141
Save that as to (ii) "serious issue to be tried" is replaced by "reasonable prospect
of success" 142 the analysis and approach is no different under the CPR. There are
varying judicial views as to whether the change has had any effect. It does seem at the
least to emphasise the need to show the strength of the case, this view being underlined
by in one case the equating of the phrase with "real prospect of success. 143 A slightly
different approach is that there is no difference 144 and yet a third view is to take the
words as they are. 145 And that reflects the guidance generally as to the CPR, there
seemingly to be little to be gained from substituting phrases for that actually in the rules.
"Reasonable prospect of success" is perfectly c apable of assessment —and it is
suggested even without substitution has a different flavour as to the quality of the case
than the focus on the seriousness of the issue.
9.76 Encompassed in (i) are all the elements of the particular category —so under
rule 1(1)(e) (see infra) it must be shown to the applicable standard that there is a
contract made out of the jurisdiction and a breach within the jurisdiction, or that where
under rule 1(1)(c) service is to be on co -defendants as necessary parties of a common
question of law or fact, and that the relief arises out of the same transaction. 146
9.77 The approach epitomises the need to identify issues confined to the power to
hear a case and concern at considering and pronouncing on the merits of a claim in
order to decide if there is the power to deal with it. The standard in relation to the issue
to be tried and the discretion inherent in deciding on the appropriate forum are therefore
entirely understandable. Of less justification is the "arguable case" that the elements of
jurisdiction exist, particularly when those elements will not be re -examined in
consideration of the merits. So although the cautions against a mini trial at this stage
should be taken into account there seems little to say for not pronouncing on the
domicile of a defendant rather than an arguable case of domicile. Even where elements
will be revisited such as a contract and a breach there is no logical reason why the
jurisdiction and merits cannot be equated.
9.78 While, whatever the defensibility, the criteria as set out seem established this
does not apply to the concepts on which they are based. In 1997 in Canada Trust Co. v.
Stozenberg (No. 2)147 the court emphasised the "particular scrutiny" required where the
jurisdictional elements played no part in consideration of the merits (such as
"domicile"). The court explained references in earlier cases to "the serious question to
be tried" in the area covered in Seaconsar by the "arguable case" through the flexibilit y
of the latter concept. In the end, unfortunately there is the suspicion of the well -known
approach of words meaning only what they are said to mean, and perhaps justification
of the extension of jurisdiction through introduction of different meanings in different
contexts. In essence there seems little justification for the "arguable case" relating to a
jurisdictional concept unconnected with the merits.
Despite past judicial comment that RSC Order 11 reflects interference with the
sovereignty of other nations it would seem that the bases of jurisdiction of that Rule and
CPR 6.20 have more substance than the traditional ground of the defendant’s presence —
as illustrated by the EC Regulation and Brussels and Lugano Conventions. The
provisions vary greatly and the likelihood of ordering service out may well depend on
the nature of the claim.148
Further, elements relevant to interim remedies, arbitration applications or awards
may have different focal points (such as showing an arbitration award is enforc eable)
but the need to identify the various aspects of any application is identical. Categories of
Claim for Serving out
The categories are set out in CPR 6.20:
9.79 In any proceedings to which rule 6.19 149 does not apply, a claim form may be
served out of the jurisdiction with the permission of the court if — General Grounds
(1) a claim is made for a remedy against a person domiciled within the
jurisdiction.
(2) a claim is made for an injunction ordering the defendant to do or refrain from
doing an act within the jurisdiction.
(3) a claim is made against someone on whom the claim form has been or will be
served (otherwise than in reliance on this paragraph) and —
(a) there is between the claimant and that pe rson a real issue which it is reasonable
for the court to try; and
(b) the claimant wishes to serve the claim form on another person who is a
necessary or proper party to that claim.
(3A) a claim is a Part 20 claim and the person to be served is a necessary or
proper party to the claim against the Part 20 claimant. Claims for interim remedies
(4) a claim is made for an interim remedy under section 25(1) of the 1982 Act. 150
Claims in relation to contracts
(5) a claim is made in respect of a contract where the contract —
(a) was made within the jurisdiction;
(b) was made by or through an agent trading or residing within the jurisdiction;
(c) is governed by English law; or
(d) contains a term to the effect that the court shall have jurisdiction to determine
any claim in respect of the contract.
(6) a claim is made in respect of a breach of contract committed within the
jurisdiction.
(7) a claim is made for a declaration that no contract exists where, if the contract
was found to exist, it would comply with the conditions set out in paragraph (5). Claims
in tort
(8) a claim is made in tort where—
(a) damage was sustained within the juris diction; or
(b) the damage sustained resulted from an act committed within the jurisdiction.
Enforcement
(9) a claim is made to enforce any judgment or arbitral award. Claims about
property within the jurisdiction
(10) the whole subject matter of a claim relates to property located within the
jurisdiction. Claims about trusts etc.
(11) a claim is made for any remedy which might be obtained in proceedings to
execute the trusts of a written instrument where —
(a) the trusts ought to be executed according t o English law; and
(b) the person on whom the claim form is to be served is a trustee of the trusts.
(12) a claim is made for any remedy which might be obtained in proceedings for
the administration of the estate of a person who die d domiciled within the jurisdiction.
(13) a claim is made in probate proceedings which includes a claim for the
rectification of a will.
(14) a claim is made for a remedy against the defendant as constructive trustee
where the defendant’s alleged liability arises out of acts committed within the
jurisdiction.
(15) a claim is made for restitution where the defendant’s alleged liability arises
out of acts committed within the jurisdiction. Claims by the Inland Revenue
(16) a claim is made by the Commissioners of the Inland Revenue relating to duties
or taxes against a defendant not domiciled in Scotland or Northern Ireland. Claims for
costs order in favour of or against third parties
(17) a claim is made by a party to proceedings for an order that the court ex ercise
its power under section 51 of the Supreme Court Act 1981 151 to make a costs order in
favour of or against a person who is not a party to those proceedings.
(Rule 48.2 sets out the procedure where the court is considering whether to
exercise its discretion to make a costs order in favour of or against a non -party)
Admiralty claims
(17A) a claim is—
(a) in the nature of salvage and any part of the services took place within the
jurisdiction; or
(b) to enforce a claim under section 153, 154 or 175 of the Merchant Shipping Act
1995(a). Claims under various enactments
(18) a claim is made under an enactment specified in the relevant practice
direction. 152
9.80 The substance remains largely as it was un der the RSC, with clarification and
some expansion to match the grounds with substantive developments and to cure
anomalies.153 Whereas formerly claims under various enactments were listed they are
now sensibly specified by reference to the relevant practice direction. 154
9.81 The categories of claim. In rule 1(1) they highlight the general legal nature of
the action (as contract, tort, security on property or money had and received), types of
action (as trust, probate or administration of estates), property within the jurisdiction,
parties to the action and remedies (grant of injunction, enforcement of a judgment or
arbitral award). The connections with England required also vary depending on t he
ground, in some instances it being connection with the person on whom the claim form
is to be served, the place of an event leading to the claim (the contract, breach of
contract or tort), the subject-matter of the claim (property), or the governing law being
English (in contract or trust actions).
9.82 As with all lists of claims there are problems of construction. Bearing in mind
the general discretion it must at least be arguable that, apart from statutory provisions, it
would be preferable simply to list general connections without referring to particular
causes of action, as it is for the defendant domiciled in England.
Although the evidence it in support must identify the ground of the application, it is
the claim form on which the decision has to focus. 155 So the claim must be there
identified with sufficient particularity to allow the court and the defendant to know the
basis of the application. 156
9.83 However, the evidence must also identify the paragraph relied on and
summarise the considerations that it is a proper case for service out. 157 It must draw
attention to any feature thought to weigh against such service. The general duty of
disclosure applicable to applications without notice continues to apply until the ser vice
of the order.158 It does not however extend to the merits of the case beyond the matters
on which the court must be satisfied to grant permission. 159
9.84 Some of the provisions are somewhat loosely drafted in that the jurisdiction is
based on specified connections without always linking the connection to the service of
the claim form. In Union International Insurance Co. Ltd v. Jubilee Insurance Co.
Ltd160 it was held that the provision relating to an agent trading in the jurisdiction for an
overseas principal (now 5(b)) referred only to a defendant’s agent. Phillips J. thought
that a similar qualification had to be made in respect of (now) 1(a) to require the person
specified to be the person served. This conclusion seems clear as the connect ions are to
bring a defendant not present within England within the scope of English jurisdiction
because of other connections.
9.85 Chiefly relevant to maritime claims are the provisions relating to contract,
tort, parties to the action and remedies. Of these it is sufficient simply to note the
provisions as to tort (requiring the sustaining of damage or an act causing the damage
within the jurisdiction), as to the domicile of the defendant in England and enfor cement
of a judgment or arbitral award. 161
"Necessary or proper party" (6.20(3))
9.86 Changes from RSC are to
(i) allow as a prerequisite future as well as past service on a person within the
jurisdiction162
(ii) require expressly a "real issue" between the claimant and the person served or
to be served
(iii) make specific provision for Part 20 claims (counterclaims and other claims by
a defendant).
Where a purpose of service within the jurisdiction is to serve o thers outside, the
question of service out is clearly related to any question of stay of the proceedings in
which the claim form has been served. 163
Contracts (6.20(5) -(7))
9.87 The rule greatly simplifies the focus on contract 164 by omitting any specific
effects on a contract, and fills a gap perceived by some in the old rule by including
(sensibly) a claim that no contract exists. It is arguably wider than the old rule in
providing simply for claims "in respect of" a contract. 165
Tort
9.88 Damage may be physical or economic and at least as regards CPR 6.20(8)(a)
is not restricted to that which completes the cause of action. So a claim by a resident
under the Fatal Accidents Act 1976 in respect of her husband’ s death outside England
was within the provision. 166
Seeking an injunction (6.20/2)
9.89 In respect of the RSC (Ord. 11, rule 1(1)(b)) in 1977 in The Siskina167 it was
held by the House of Lords that this ground required the existence of a legal or equitab le
right in England "which it has jurisdiction to enforce by final judgment". 168
9.90 On this approach, therefore, the subparagraph could not be a ground for the
grant of an injunction to restrain the disposal of assets pending a claim (then a "Mareva
injunction") unless that claim is within the jurisdiction of an English court.
Interim Remedies
9.91 By section 25 of the Civil Jurisdiction and Judgments Act 1982 (as amended
by the 1991 Act and extended in 1997 by Orders in Council 169) a court may order
interim relief in connection with any proceedings in any matter in a court other than the
High Court or Court of Session as appropriate. However, the approach will still defeat
the service out of any claim form seeking an anti suit injunction unless the cl aim itself
involves "a recognised legal or equitable concept". 170
9.92 By 6.20(4) a claim form for an interim remedy under section 25 may be
served out of the jurisdiction with the permission of the court. 171 The Appropriate
Forum
9.93 In addition to showing that there is an arguable case that the claim is within
Order 11 and that there is a serious issue to be tried the plaintiff must establish that
England is clearly the most appropriate forum for the action. Until the decision of the
House of Lords in 1986 in The Spiliada172 this element of the requirement was treated
as part of a general discretion to be exercised once the matter was shown within the
rules. It was neither identified as akin to the issue of the plea of inappropriate fo rum
made by a defendant seeking to persuade a court not to exercise an established
jurisdiction, nor always separated from the question of the strength of the plaintiff’s
case on the merits.
9.94 In The Spiliada Lord Goff pointed out that whether England w as clearly the
most appropriate forum may well vary according to the ground on which the claim was
based and further that the importance of the ground (for example, a contract was
governed by English law) would depend on the circumstances of the case. The factors
relevant to the appropriate forum are discussed in Chapter 12. It suffices here to note
that the principle is judicially neutral—that it is where the case should be tried "suitably
for the interests of all the parties and the ends of justice". The difference in applying it
to service out and stay of proceedings in which there is jurisdiction, lies in placing the
burden of proof on plaintiff or defendant. The legitimate or personal advantage of the
plaintiff cannot therefore be conclusive or indeed m ore than a relevant factor. Other
factors are, for example, damage, procedure, convenience of witnesses, limitation of
time or liability, and delay in trial.
9.95 A compelling factor without contrary evidence must be the existence of an
English jurisdiction agreement. Whether the agreement is exclusive or non exclusive on
an English court the parties will normally be held to their bargain and to have
considered all foreseeable consequences in reaching it. At least whe re the parties to the
litigation are the parties to the agreement the balancing exercise applicable to forum
non conveniens is inapplicable. Only if the ground relied on was unforeseeable or the
matter goes to "the interests of justice itself" would there be a case for declining
jurisdiction and therefore refusal to serve outside England. 173 An arbitration clause is
not a bar to service out of the claim form relating to the substantive claims. However,
where a defendant is entitled under the Arbitration Act 1975 to a stay for arbitration
proceedings and intends to claim that right the order for service should not stand. 174
9.96 The exercise of discretion in this regard is essentially for the first instance
judge. An appellate court is not entitled to interfere with the exercise on simple
disagreement—it must be satisfied that it was based on wrong principles. 175 And this
seems to work in practice—although the extent to which courts require that it be shown
that an English court is "clearly" the most appropriate may be open to some doubt.
English courts have never been loath to assert the power to adjudge —even, it has to be
said, where the governing law is not English. Further, the need now to show a
reasonable prospect of success in respect of the st rength of case may encourage a move
away from the appropriate central element—the connection with England. Collision and
limitation claims
9.97 Service out requires permission as with any other specified claim under
section 111 of Part 6. However jurisdict ion in collision claims is restricted by the
Supreme Court Act, section 22, in accordance with the Collision (Civil Jurisdiction)
Convention 1952 (see Chapters 2, 12). So the "service out" provisions match the
collision jurisdiction in personam and also apply with one addition to limitation
actions.176 There is no jurisdiction in a collision claim in respect of any incident not
within inland waters or on a defendant not habitually resident or domiciled there unless
(i) the defendant has submitted or agreed to submit to the jurisdiction or (ii) an action
arising out of the same incident is or has been before the High Court. So no claim form
in a collision or limitation claim may be served out of the jurisdiction unles s these
requirements are met, or, in the case of limitation actions, jurisdiction is conferred by a
Convention.177
Arbitration application (62.58, 16)
9.98 A claim form containing an application under the Arbitration Acts 1950, 1979
or 1996 or affecting an arbitration agreement 178 or proceedings or to enforce an award
may be served out of the jurisdiction with the permission of the court. 179 Service of an
application to enforce an award qualifying under the New York Convention 1958 sh ould
not be refused because of lack of connection with England. 180 Service of the Claim
Form181
9.99 Many States (including the United Kingdom) are parties to the Hague
Convention on the Service Abroad of Judicial and Extrajudicial Document in Civil or
Commercial Matters 1965. A Convention to replace that of 1965 was on 26 May 1997
agreed by the Council of the European Union, but not ratified by the Member States
because of the bringing of judicial co -operation within the Community l egislative
framework. 182 On 29 May 2000 Council Regulation 1348/2000 (the "Service
Regulation") was adopted. The Regulation is based on the 1965 Convention with
proposals for more direct, and modern channels of transmission and service and
improved rules in translation. For all States then EU members save Denmark it came
into force on 31 May 2001, and for those States acceding in 2004, 1 May of that year.
9.100 The Service Regulation and the Hague Convention play a large but not
exclusive part in the service process. Under the CPR service may be under the Service
Regulation, Hague Convention or by the law of the country in which service is to
occur.183 English law continues to govern service matters not governed by the Service
Regulation or Hague Convention, as the validity of the claim form. 184 Further, it would
appear that the power to dispense with service or permit a method of service not
contained in the CPR, may be available in cases within the Regulation or Convention
(see below).185
9.101 By the CPR 6.24 service may be by any method
(a) permitted by the law of the country in which service is to occur
(b) service through foreign government, judicial authority or British Consular
authorities (6.25).
(c) in accordance with the Service Regulation 186
(d) in accordance with a Civil Procedure Convention 187
(e) if on a State in accordance with specific provision (6.27)
Nothing in the provision or any court order may authorise any act against the law of
the state in which service is to occur.
9.102 The powers (a) to dispense with service (prospectively or retrospectively)
(6.9); (b) to permit service in a method alternative to the rules 6.8) and (c) to remedy a
procedural error (3.10) apply to service out of as well as service in England. However,
in the light of the jurisdiction aspects of service it has been held that there should be
hesitation to use any of these powers when the service was not in accordance with a
relevant Convention or national law. 188 Service through governmental, judicial or
consular authority 189
9.103 Where service is governed by the Service Regulation it is to be
accomplished through the structure of the Regulation. 190 Apart from the Regulation the
ability to use foreign governmental or judicial authorities or British consular authorities
varies according to whether the state in which service is to occur is a party to a Civil
Procedure Convention with the United Kingdom. Unless the service is to be m ade in a
country party to the Hague Convention of 1965 service may not be through such
authorities in Scotland, Northern Ireland, the Isle of Man or the Channel Islands, the
Republic of Ireland or any Commonwealth country or a United Kingdom Overseas
Territory.
9.104 If the state is not a party to the Hague Convention but there is a Civil
Procedure Convention with the United Kingdom the claim form may be served if the law
of the country permits through the judicial authorities or the consular authorities. W here
the country in which the claim form is to be served is a party to the Hague Convention of
1965 the service may be through the authority designated in the Convention or if the law
of the country permits, through the judicial author ities or British consulate. If there is no
Civil Procedure Convention or the Hague Convention does not apply if the law of the
country permits the service is may be through a foreign government if willing or through
a British Consulate. 11. Submission to the Jurisdiction A. Through Procedural Steps
9.105 Submission to jurisdiction on the merits requires participation in or an
express or implied agreement to participate in proceedings other than to challenge the
jurisdiction. As indicated in the discussion of the procedural steps, acknowledgment of
service of itself is not only not submission but is a prerequisite for disputing jurisdiction
or the exercise of jurisdiction. However, if having acknowledged service, no
application is made the defendant "is to be treated as having accepted jurisdiction". 191
The question of whether any particular procedural step will be seen as submission is
discussed under "Disputing the Jurisdiction" (9.56).
9.106 There seems a growing and welcome judicial acceptance of the distinction
between interlocutory remedy jurisdiction and jurisdiction on the merits ( see Chapter
16). Although each case will depend on the type of participation it seems less certain
than formerly that agreement to an interlocutory remedy would necessarily be
submission to the merits. That should depend on whether the court had jurisdiction to
grant an interlocutory remedy apart from the merits and the defendant’s understanding of
his action. 192 B. Through Submission before the Court
9.107 Actual "submission" is clearly enough to establish jurisdiction in personam.
Procedural steps may be necessary to establish required procedural contact but power
to hear the case is established. 193 12. Remedies Available A. On the Merits
9.108 Any remedy which is part of the general rules of English law is available.
There are no special maritime rules. So money judgments, injunction, specific
performance, restitution, rescission and declaration of title are all applicable. 194
However, limitation of liability imposes a limit not generally applicable. 195 B. Interim
Remedies—the "Freezing Injunction"
9.109 There is no statutory link between the action in personam and any
provisional remedy. But there is a general ability to grant interim remedies. 196 This
ability is most generally employed in a pre -trial context in the "freezing injunction"
(formerly the "Mareva" injunction) to provide some protective measure for claimants .
Until the relatively recent use of this injunction English law was notoriously defective
in lacking a general protective provision so as to enable a claimant to ensure that the
defendant has assets available for execution of judgment. Such a defect had a great
effect in the maritime area, where many defendants were either foreign based or could
switch their assets out of England. The defect was underlined by the fact that many
insurance funds were in England and in some cases would represent the sole asse ts of a
defendant—or the sole assets easily available to satisfy a claim. It might now be argued
that the enthusiasm to remedy the defect on occasion may have tended to the robust —
with perhaps too little regard for its effect on a trading concern. Interim remedies,
including the Mareva injunction, are considered in Part III. 13. County Court
Jurisdiction
9.110 County court jurisdiction in Admiralty proceedings conferred under the Civil
Courts Order 1983 was removed as from 26 April 1999 as regards all proceedings
commenced in or transferred to such a court after that date. 197
1. In the CPR these are known as "other claims" apparently to distinguish them
from claims in rem. Whether this terminology is of assistance is dubious.
2. See e.g. for discussion as to applications to set aside an ex parte order extending
the period for service of a writ where the writ was issued prior to the relevant date and
the application subsequent to it The Hai Hing [2000] 1 Lloyd’s Rep. 300 and infra.
3. See Biguzzi v. Rank Leisure Inc. [1999] 4 All E.R. 934 (as to delay see Chapter
11). As to pre litigation orders see CPR 25.1, 25.2.
4. See e.g. Shikari v. Malik [1999] T.L.R. 391.
5. See e.g. Reichhold Norway ASA v. Goldman Sachs International [1999] 2 All
E.R. (Comm.) 174 (C.A.) (Stay of proceedings pending foreign arbitration), but
compare the approach of the C.A. in Messier Dowty Ltd v. Sabena SA [2000] 1 Lloyd’s
Rep. 428 in considering whether the joining of Sabena in proceedings against another
defendant would be to "deal justly". As to the approach on appeals discussing review
under CPR 52.11 challenging (i) facts or (ii) discretion compare Tanfern Ltd v.
Cameron Macdonald [2000] 1 W.L.R. 1311 (discretion) Assicurioni Generali SpA v.
Arab Insurance Group [2003] 1 W.L.R. 577 (facts).
6. Or on occasion in a Mercantile Court (as to which see Part 59).
7. See Rule 6 1.1(3).
8. Rule 61.2. As to admiralty claims see Chapter 3.
9. Rules 30.5(3), 61.2(3).
10. Examples of status claims are those based on marriage and other family
relationships. The distinction between actions in personam and in rem is not to be
confused with that between rights or judgments in personam and in rem—both of these
going to the number of persons bound.
11. Although there are special procedural requirements in some Admiralty actions —
see e.g. the need for the lodging of a statement of case (formerly preliminary act) in
collision actions. See Admiralty proc eedings CPR, 61.4 although general procedural
requirements also apply as appropriate. As to collision claims see para. 4.
12. As to which see The Carriage of Goods by Sea Act 1992.
13. The Contracts (Rights of Third Parties Act) 1999 conferring under specified
circumstances rights of enforceability on third parties has little application to carriage
of goods by sea as defined in the 1992 Act or contracts of carriage by air rail or road
subject to international conventions (s.6(5)–(8))—as to which see Chapter 5). In respect
of other "maritime contracts" the Act does apply.
14. A rather curious statement appears in the notes to CPR Part 6 section 111 in the
White Book that service "does not create jurisdiction" but is a prerequisite for its
exercise (the comment being carried over from RSC Ord. 11, r. 3). That with respect
seems to have no basis in theory or practice —if service does not create it, what (apart
from a jurisdiction base) does? A further comment that service is not an end itself but a
means of bringing process to the notice of the defendant (see 6.5.5) ignores the
jurisdictional aspect—an aspect stressed in Saab v. Saudi American Bank [1999] 1
W.L.R. 1363, para. 18 (C.A.) (see infra). As to the power of a court to dispense with
service see 9.19.
15. See e.g. Colt Industries v. Sarlie [1966] 1 All E.R. 673 (C.A.); Maharanee of
Baroda v. Wildenstein [1972] 2 All E.R. 689 (C.A.). As to a further inroad through
service on an agent in this country see infra.
16. See Myerson v. Martin (fn. 19). As to a further inroad into the principle
through the ability to serve an agent in this country see infra.
17. See Cool Carriers and anor v. HSBC Bank [2001] 2 Lloyd’s Rep. 22,
Tomlinson J. Charterers could not use interpleader proceedings in the High Court
concerned with competing claims against them by the owners and banks when the
disputes between them were not themselves within the regime.
18. I.e. Form ADMIA (CPR 61 PD 12.3). The form may be varied but not so as to
exclude information or guidance for the recipient, see CPR Part 4. As to the power of a
court to backdate the issue see Riniker v. University College London [1999] T.L.R. 299
and Chapter 11. There are no provisions for concurrent claim forms (in contrast to the
former rules providing for concurrent writs see Ord. 6, r. 8(2) (amended by SI
1996/2892)). Presumably the functions of concurrent writs can also be accomplished by
copies or on occasion simply a further claim form (see e.g. ANCAP v. Ridgley Shipping
Inc. [1996] 1 Lloyd’s Rep. 571).
19. Save when the registry is closed the claim form must be sealed when issued —
when the registry is closed a request may be made by fax (see 58 PD 1.2, Appendix A).
20. Or use is required by rule or practice direction. The claimant must declare that
Part 8 applies. As to issuing of a claim form in such procedure without naming a
defendant see CPR 8.2A.
21. CPR 6 1.4(2) 61 PD 12.2, 58.5. Where particulars are not with the claim form
they must be served within 28 days of such acknowledgment of service (58.5(1)). In
collision claims unless there is Court dispensation a statement setting out the case must
be filed within two months of acknowledgment of service of the claim form (6 1.4(5)).
Failure to file the Act renders the claimant liable to a default judgment (61.9(2)). As to
acknowledgment of service see infra. As to dispensation by the Court of any statement
of case save the claim form see CPR, Rule 16.8.
22. CPR 7.8(1).
23. CPR 6.5; 61 PD 12—service is not by the Registry in maritime claims ( see
infra). As to service on a corporation, see infra. As to renewal of a writ, see infra and
Chapter 11. As to service out of the jurisdiction, see 9.54. England means England and
Wales.
24. CPR 6.2, 6.5, personal service, first class post, leaving at the place of service,
through a document exchange or by fax or other electronic communication. A s to
limitations on service availability of through document exchange or by fax or electronic
means see Part 6 PD, para. 3; Commercial Court Guide B 5.3. As to deemed date of
service see 6.7. Fax requires express consent ( Molino v. G.D. [2000] 2 Lloyd’s Rep.
234).
25. CPR 6.8, 6.9. The rule as to "substituted service" attracted a considerable
amount of technicality (see e.g. The Vrontados [1982] 2 Lloyd’s Rep. 241; Paragon Ltd
v. Burnell [1991] 2 All E.R. 388. Under the CPR an order permitting such service must
state the method and deemed date of service. See further 9.31 and subsequently.
26. But where a defendant was in England on the date of issue of the writ
substituted service could be ordered Myerson v. Martin [1979] 3 All E.R. 667 (see
below).
27. CPR 6.15. But if out of the jurisdiction permission must be obtained if
necessary (ibid.) as to which see infra.
28. CPR 6.7. Godwin v. Swindon Borough Council [2001] 4 All E.R. 641 (C.A.);
Anderton v. Clwyd CC [2002] EWCA Civ 933. As to the calculation of the period see
6.7(1). The general provision relating to period in which any act is to be done (2.8)
does not apply to 6.7 (Anderton) holding that unlike the provision in 2.8 Saturdays and
Sundays are not excluded.
29. As to its applicability to service out of England see 9.33A.
30. Godwin (n. 1).
31. Anderton (n. 1).
32. Anderton (n. 1), Wilkey v. BBC [2003] 1 W.L.R. 2.
33. In pre Anderton cases the discretion would not normally have been exercised
in the claimant’s favour unless good reason was shown ( ibid). Cranfield v. Bridgegrove
Ltd [2003] 3 All E.R. 129.
34. See also Lakah v. Al Jazeera [2003] EWHC 1297.
35. CPR 61 PD 12.3, 58 PD 9. Once a claim form is served, in order to provide
the basis for a default judgment the claimant must file a certificate of service (CPR
6.14.2). As to contents see 6.10.
36. CPR 6.9.
37. CPR 7.7. If the claim form is not then serv ed after notice by the defendant the
court may dismiss the claim or make any order it thinks just (7.7(3)).
38. CPR 7.5, the "jurisdiction" being England and Wales, the territorial sea (as to
which see the Territorial Sea Act 1987). See also CPR Rule 2.3. Jurisdiction may be
conferred as to designated areas and installations under the Petroleum Act 1998, s.11
and as applied by the Continental Shelf Act 1964 (ss.6, 7); Telecommunications Act
1984 (s.107); Food Safety Act 1990 (s.8(2)). Such jurisdiction is conferred by SI
1987/2 197. Neither this provision nor that of extension of the period (7.6) applies to a
Part 20 claim (a counterclaim or other claim by a defendant).
39. The prevailing view in respect of the former rules is that a writ may remain
valid during six months, irrespective of any endorsement of a period of service if it was
shown as a matter of practicability leave was required for service out of the jurisdiction
and at any time prior to the expiry of six months. See Vitol Energy (Bermuda) Ltd v.
Pisco Shipping Co. Ltd [1998] 1 Lloyd’s Rep. 509 (C.A.) and cases considered in the
judgments.
40. See Vitol Energy (Bermuda) Ltd v. Pisco Shipping Co. Ltd (n. 40).
41. Para 2A–177.
42. See e.g. The Byzantio [2004] EWHC 3067, [2004] All E.R. (D) 219.
43. CPR 7.6. The application must be supported by evidence and may be made
without notice (7.6(4)).
44. Ibid. A further ground is the "inability" of the court to serve the claim form —
but this is inapplicable to the Admiralty and Commercial Courts as the obligation of
service is on the claimant (see 9.26). Incompetence of a representative is no ground for
extension Hashstroodi v. Hancock [2004] EWCA 652.
45. Under the general provisions of 2.11.
46. Anderton v. Clwyd CC (fn. ); The Byzantio [2004] EWHC 3067.
47. Totty v. Snowden [2002] 1 W.L.R. 1384.
48. See e.g. Dong Wha Enterprise Co. Ltd v. Crownson Shipping Ltd [1995] 1
Lloyd’s Rep. 113 and cases considered in the judgment.
49. See e.g. Waddon v. Whitecroft Scovell [1988] 1 All E.R. 96; The Myrto (No.
3) [1987] 2 Lloyd’s Rep. 1; Binning Bros v. Bowles [1998] 1 All E.R. 409.
50. See The Hai Hing [2000] 1 Lloyd’s Rep. 300, a case in which the extension of
time was prior to the CPR and the cha llenge subsequent to the rules coming into
operation.
51. See Rule 2.11.
52. See e.g. Singh v. Dupont Harper Foundries [1994] 2 All E.R. 889.
53. "Statement of case" also includes a counterclaim third party claim, the defence
or reply to a defence or further information (CPR 2.3(1), 20.2).
54. CPR 17.1. A party may amend before service, but a court may disallow the
amendment ibid., 17.2.
55. CPR 17.4, 19, 19.2 (not even requiring that the new party has a cause of action —
Chubb Insurance of Europe SA v. Davies [2004] EWHC 2138). A party may be
added after judgment C Inc v. L [2001] 2 Lloyd’s Rep. 454. An amendment may be
made although a jurisdictional objection is taken (now under CPR 11). Grupo Torras SA
v. Al Sabah [1995] 1 Lloyd’s Rep. 374 (construing former RSC).
56. The Jay Bola [1992] 2 Lloyd’s Rep. 62.
57. The Limitation Act 1980 and the CPR take effect subject to any other limitation
enactment (s.39 of the Act) CPR 17.4, 19.4 —specific reference being made in the rules
to the Foreign Limitation Periods Act 1984. See also s.190 of the Merchant Shipping
Act 1995 (as to which see Chapter 11).
58. I.e. were in issue (including those put in issue by the defendant) Goode v.
Martin [2002] 1 W.L.R. 1828 (considering the impact of the right to a hearing under the
Human Rights Convention Art. 6) and allowing an alternative claim.
59. Where the wrong party is sued to be construed widely —the jurisdiction is “for
putting things right”. See Morgen EST n. 60 at para. 40.
60. See Limitation Act 1980, s.35; CPR 17.4, 19.5, 17.4 applies where the name of
the defendant is wrong, 19.5 where the wrong party is named as the defendant ( Gregson
v. Channel Four Television Corpn. (2000) (The Times, 11 August). As to the dangers of
relying on decisions on the RSC see Morgan EST (Scotland) Ltd v. Hanson Concrete
Products Ltd [2005] EWCA Civ 134. In seeking to add a new cause of action which
would have been barred the plaintiff must show that it is just to allow th e amendment
taking into account the loss of an accrued defence —leave may be granted to add a new
claim involving a small degree of additional facts: The Casper Trader [1992] 3 All
E.R. 132 (C.A.). To add a claim of intentional wrongdoing is to add a new ca use of
action (Paragon Finance plc v. Thakerar [1999] 1 All E.R. 400). As to the constraints
of the Limitation Act 1980 see Chapter 11. The date of the events on which the claim is
based is not an essential part of a cause of action for breach of contract of carriage: The
Jangmi [1989] 2 Lloyd’s Rep. 1. Although ground (c) does not appear in the Limitation
Act, limitation has no relevance to that factual situation, see e.g. Industrie Chimiche
Italia Centrale v. Tsavliris and Sons [1995] 2 Lloyd’s Rep. 608.
61. Or the territorial sea or specified extensions ( see fn. 26). As to dispensation
see 9.198.
62. CPR 6.16 (as to service overseas see infra).
63. CPR 6.4, 6.5, 6.8. The claimant must file a certificate of service within seven
days of service (6.14). Where the claim form is left there is no requirement that it be
shown that it will have come to the notice of the defendant (as under RSC Ord. 10, r.
1(3): Forward v. West Sussex C.C. [1995] 4 All E.R. 207).
64. It is irrelevant whether notification occurred at some other date ( see 9.19A).
The day of deemed personal service is the day after delivery, by first class post the
second day after posting, service by document exchange and by electronic means other
than fax is the second day after transmission, by fax sent on a business day before 4.00
pm, on that day or otherwise the following day (CPR 6.7). An amendment of a statement
of case must be served on each party unless the Court otherwise directs —but in that
context service must be at any address for service given in acknowledgement of service
or other document (CPR 6.5).
65. CPR 6.4(1).
66. As to which see RSC Ord. 10, r. 1(4)(5).
67. CPR 15.2.
68. CPR 6.16, reproducing in substance RSC Ord. 10, r. 2.
69. See Knauf UK GmbH v. British Gypsum Ltd [2002] 1 Lloyd’s Rep. 199, para.
38 (C.A). Addax BV Geneva Branch v. Coral Suki SA [2004] All E.R. (D) 138.
70. See Kanuf (fn. 69) in which the C.A. refused to order on the lack of good
reason (see text above).
71. Knauf fn. 69. Shiblaq v. Sadikoglu (No. 2) [2004] 2 All E.R. (Comm) 596.
72. See e.g. Myerson v. Martin [1989] 3 All E.R. 67 (C.A.) (concerned with the
much more restricted former rule permitting substituted service when personal service
was "impracticable" (RSC Ord. 6 5, r. 4)—the inroad into the basic principle of
jurisdiction dependent on service (and hence notice) being underlined by the lack of any
requirement that the order for such service was likely to bring the writ to the notice of
the defendant (Abbey National Plc v. Frost [1999] 2 All E.R. 206).
73. [1989] 1 All E.R. 723 (H.L.). See also India Videogram Ltd v. Patel [1991] 1
All E.R. 214; Baghlaf Al Zafer Factory Co. v. Pakistan National Shipping Co. [1998]
2 Lloyd’s Rep. 229.
74.Companies Act 1985, s.725.
75.CPR 6.2, 6.5. Subject to the powers of the court to dispense with service,
authorise an alternative method, to serve an agent or a principal abroad and the
requirement to serve a solicitor if authorised (as to which see supra).
76.CPR 6.2, 6PD 6. Subject to any binding agreement the claimant may elect
whether to follow a course permitted by the Act or Rules, Cranfield v. Bridgegrove
Ltd, The Times [2003] 3 All E.R. 129.
77.Companies Act 1985, s.691 (H.L.).
78. Ibid. s.695(1). Prior to the CPR this was the sole method of service, but
service in another way was an irregularity which could be corrected under the rules.
Boocock v. Hilton International Co. [1993] 4 All E.R. 19 (C.A.). There may be
service in England under foreign law if a claim form may be served out of England and
by the laws of the place of service served in England ( see infra).
79.Companies Act 1985, s.695(2).
80.Companies Act s.694A amending the 1985 Act as from 1 January 1993 this
apparently being one of a number of provisions inserted to give effect to Directive
89/666; Saab v. Saudi American Bank [1999] 1 W.L.R. 186.
81.CPR 6.2, 6.5. As to required service on an authorised solicitor see 9.32. The
wording of the Companies Act s.694A (fn. 80) is not mandatory and the alternative
methods of service under the CPR are available. Sea Assets Ltd v. P.T. Garuda
Indonesia [2000] 4 All E.R. 37.
82. Rome v. Punjab National Bank (No. 2) [1990] 1 All E.R. 58 (C.A.). As to the
meaning of "carrying on business" see Adams v. Cape Industries Plc [1991] 1 All E.R.
929 (C.A.) and authorities there discussed.
83.In a limitation claim an acknowledgment must be filed only to dispute the
existence or exercise of jurisdiction—otherwise the obligation is to file a defence or
admission within 28 days of service of the claim form (CPR 61.11). As to a claim
against the limitation fund see CPR 11.15.
84.CPR 58.6 (qualifying 10.1(3)—supra, CPR 61.4(3), 8.3 (referring to "Part 8"
claims as to which see para. 9.18)—a default judgment is not possible in Part 8 claims
(CPR 12.2(b)). There does not appear to be any prohibition on a late acknowledgment.
A note to the CPR 61.3 (claims in rem) indicates that the ability to acknowledge the
issue of a claim form applies to a limitation action as well as an action in rem. But there
appears no authority for this. As to action in rem see Chapter 10. The provision that an
acknowledgment is not required (61.11(6) clearly applies generally.
85.CPR 58.6, 61.4(3). As to acknowledgment of service out of the jurisdiction see
10.2(2) RSC Ord. 11, r. 1A and infra.
86.CPR Part 12 as amended by Admiralty and Commercial Court Guide B10. As
to serving and filing particulars of claim see para. C2.
87.See Admiralty and Commercial Court Guide C3.
88.See Commercial Court Guide C3. But the Court may on application order a full
trial so that e.g. the judgment would be more likely to be enforceable in other
jurisdictions (Berliner Bank AG v. Karageorgis [1996] 1 Lloyd’s Rep. 426
(considering RSC Ord. 19)). Such jurisdiction no doubt continues to exist.
89. CPR 15.3. Such a judgment is not available in Part 8 claims (12.2) (as to
which see 9.18). Subject to court permission save in applications for specific
performance a summary judgment cannot be obtained until either an acknowledgment of
service or defence is filed (CPR 24.4 (24 PD 7)). A default judgment may not be
obtained where there is an application for a summary judgment (CPR 12.3(3)). A
summary judgment against a defendant cannot be obtained in an action in rem (CPR
24.3(2)(b)).
90. CPR Part 11. As to the substantive law see Chapter 12 Restrictions on
Jurisdiction.
91. See Canada Trust Co. v. Stolzenberg [1997] 4 All E.R. 983 (C.A.) and supra.
92. CPR 11(1)–(4). The application must be supported by evidence. The time
within which it or any challenge to an extension of time to serve must be made is
governed by the rules relating to this type of application (Part 11) and not those relevant
to applications to set aside orders generally (as to which see Part 23). ( The Hai Hing
[2000] 1 Lloyd’s Rep. 300.)
93. CPR 11(9).
94. CPR 11(7).
95. CPR 11(5)(8).
96. But it may be a factor in assessing whether there has been such acceptance.
97. See e.g. The Messiniaki Tolmi [1984] 1 Lloyd’s Rep. 266 (C.A.)—application
to strike out claim —submission; Manta Line v. Sofanites [1984] 1 Lloyd’s Rep. 814
(C.A.)—authorising a solicitor to accept service within the jurisdiction —submission
but compare The Nova Scotia [1993] 1 Lloyd’s Rep. 154; Caltex Trading Plc Ltd v.
Metro Trading International Inc. and others [1999] 2 Lloyd’s Rep. 724 (summons for
inspection of documents—submission); The Paola D’Alesio [1994] 2 Lloyd’s Rep. 361
(seeking relief in arbitration—submission)—summons for inspection of documents —
submission (but cp. Kurz v. Stella Musical Veranstaltunes GmbH [1992] 1 All E.R.
360).
98. There is probably jurisdiction to extend the time or a stay application under
Case Management powers (see CNA Insurance Co Ltd v. Office Depot International
[2005] All E.R. (D) 325, [2005] EWHC 456.
99. SMAY Investments Ltd v. Sachdev [2003] 1 W.L.R. 1973 (H.C.). So it would
appear that filing a defence when not needed would not be a waiver. As to the effect of
agreement to such an order see Esal v. Pujara [1989] 2 Lloyd’s Rep. 479. As to
submission to jurisdiction generally see 9.94, 95.
100.But see fn. 84 and Chapter 24 as to a limitation action.
101.Although the provision is necessary even if service is a prerequisite, for the
challenge to jurisdiction may go to the form rather than the service.
102.So the authorisation by a defendant out of the jurisdiction of a solicitor within
the jurisdiction to accept service may, depending on the background, not of itself be a
bar to any application not to exercise the jurisdiction ( Baghlaf Al Zafer Factory Co. v.
Pakistan National Shipping Co. [1998] 2 Lloyd’s Rep. 229 (C.A.) pointing out that in
Manta Line Inc. v. Sofanites (fn. 77) no account was taken of the power to decline to
exercise jurisdiction). As to submission generally see infra.
103.Contrast the former RSC Ord. 12, r. 8.
104.See CPR 3.10.
105.See The Messiniaki Tolmi (fn. 77).
106. Williams and Glyns Bank Plc v. Astro Dinamico Compania SA [1984] 1
Lloyd’s Rep. 453 (H.L.).
107. Finnish Marine Insurance Co. Ltd v. Protective Insurance Ltd [1989] 2
Lloyd’s Rep. 99; [1989] 2 All E.R. 929. Such reasoning would seem to apply only if a
stay is mandatory—otherwise it would be an application not to exercise jurisdiction.
The High Court has inherent jurisdiction to decide its jurisdiction (see Canada Trust
Co. v. Stolzenberg [1997] 1 W.L.R. 1582 and supra).
108.Now presumably a hybrid claim. Each claim is brought by a claim form
(ADM1 for a claim in rem and ADM1 A for an Admiralty claim in personam (49 61 PD,
3.1, 12.3).
109.See e.g. The Dictator [1892] P. 304. In The Conoco Britannia [1972] 2 Q.B.
543 Brandon J. hinted that in his view, even without appe arance, judgment in an action
in rem might exceed the monetary value of the res and that a remedy in personam (an
injunction) may be granted.
110.A claim in rem does not depend for its existence on the arrest of property ( see
Chapter 10) and likewise release of property arrested does not change the character of
the claim whether or not a claim in personam is also in being. (As to the latter
circumstance see The Maciej Rataj [1992] 2 Lloyd’s Rep. 552).
111.CPR 61.3(4). As with the in personam claim form, the claimant must serve
the in rem form save where the property is under arrest or is to be arrested (61 PD 3.7
and infra).
112.CPR 61.3(6).
113.See 6.10.1.
114.The voluntary nature of the acknowledgment cannot it would seem be of itself
a ground of submission given the role of acknowledgment of service.
115.As to caution against arrest see 61 PD 6.1 reflecting the views expressed in
The Anna H [1995] 1 Lloyd’s Rep. 11 (C.A.).
116.The outdated view that lodging of security must be "under protest" ignored
this distinction.
118.[1998] 1 Lloyd’s Rep. 1 (H.L.). See further Chapter 17.
119.CPR 6.19(2). As to restrictions see CPR 61.4(7) ( collision claims), 61.11(5)
(limitation claims).
120.CPR 6.19 applied to Commercial and Admiralty lists save collision claims
(see 6 1.4(7)) and limitation claims (see 6 1.11.5).
121. Re Harrods (No. 2) [1992] Ch 72; In re Banco Nacional de Cuba [2001] 1
W.L.R. 2039—but the court may decline to exercise the jurisdiction ( ibid).
122. As to "costs" jurisdiction see The Ikarian Reefer (No. 2) [2000] 1 Lloyd’s
Rep. 129.
123. But failure to do so will not invalidate the service under the court orders
Trustor A.B v. Barclays Bank (2000), The Times 22 November.
124. CPR 6.19.3, 6 PD 1–4 Admiralty and Commerceal Court Guide App. 15.
Lack of a statement will mean that the issued c laim form is marked "Not for service out
of the jurisdiction" (1.4). Also see 7 PD 3.5.
125. See Waterford Wedgwood Plc v. David Nagli Ltd [1999] I.L.Pr. 9—
concerned with the former RSC but clearly remaining relevant to the CPR.
126. As to "domicile" in this context see Chapter 7.
127. I.e. England or Wales the territorial sea or other extensions (as to which see
fn. 26).
128. To be within this provision the enactment must at least indicate that
proceedings are contemplated although neither of the connections specified is present
Re Harrods (No. 2) [1992] Ch. 72 at p. 116 (C.A.). See also Re Banco Nacional de
Cuba [2001] 1 W.L.R. 2039.
129. See Merchant Shipping Act 1995, Sch. 6.
130. See Supreme Court Act 1981, s.22. As to these Conventions and others given
priority by the Brussels and Lugano Conventions or Regulation 44/200 1 see Chapter 6.
131. As to which see Chapter 6.
132. X v. Y [1989] 3 All E.R. 689 (the statutory provision implementing Art. 24 of
the Convention). The application for interim relief does not constitute "proceedings
concerning the same cause of action": Republic of Haiti v. Duvalier [1989] 1 Lloyd’s
Rep. 111; [1989] 1 All E.R. 456. As to the freezing order and the service out of
application or claim see RSC Ord. 11, r. 8A. ( See generally Chapter 16.)
133. Service out of England may in fact be service in England if such service is not
possible under English law but is under the relevant foreign law (see e.g. The
Vrontados [1982] 2 Lloyd’s Rep. 241).
134. See CPR 6.20 and 6B PD 51, 61.7 (collision claims), 61.11 (limitation
claim), 62.5, 16. As to costs see The Ikarian Reefer (No. 2) [2000] 1 Lloyd’s Rep. 129.
135. The order must specify the periods relevant to filing an acknowledgment of
service, any admission and a defence 6.2 1(4).
136. There is no rule specifically referring to this, and the application would come
within the general provision of the CPR Part 23 —after service any application would
be within Part 11 (see supra).
137. [1986] 3 All E.R. 843; [1987] 1 Lloyd’s Rep. 1.
138. [1993] 4 All E.R. 456.
139. A discretion reflected in CPR 6.21(2A) providing that the court will not give
permission "unless satisfied that England and Wales is the proper place in which to
bring the claim".
140. Not "a probable win": Agrafax v. Scottish Soc. [1995] I.L.Pr. 753. If there is
no room for further investigation into law or fact the question will be whether the case
is on the evidence within the category, see Hutton v. Mofarrij [1989] 2 All E.R. 633—
possibly weighing inconsistent evidence (see Molnlycke, fn. 142).
141. Seaconsar Far East Ltd v. Bank Markasi Iran [1993] 4 All E.R. 456 (H.L.).
The serious issue to be tried will be shown by written evidence required by 6.21.
142. CPR 6.21(1).
143. Swiss Reinsurance Co Ltd v. United India Insurance Co. [2005] EWHC
237.
144. Opthalmic Innovations International (UK) Ltd v. Opthalmic Innovations
International Incorp. [2004] EWHC 2948.
145. Pearson Education Ltd v. Prentice Hall of India Ltd [2005] EWHC 655.
146. Barings plc v. Coopers and Lybrand [1997] I.L.Pr. 12.
147. [1998] 1 All E.R. 318. As to discussion of the application of the
approach to cases under the EC Regulation and Brussels and Lugano Conventions see
Chapter 6.
148. See The Spiliada [1986] 3 All E.R. 843 at p. 858 per Lord Goff on
likelihood or ordering service out depending on the nature of the claim.
149. I.e. where permission is not required.
150. 1982 c.27. Section 25 has been amended by the Civil Jurisdiction and
Judgments Act 1991 (c. 12), Schedule 2, paragraph 12, and extended by SI 1997/302.
151. 1981 c.54. Section 51 was substituted by s.4 of the C ourts and Legal
Services Act 1990 (c.41), and is amended prospectively by s.31 of the Access to
Justice Act 1999 (c.22).
152. See CPR 6 PD. Included in the enactments are the Financial Services
and Markets Act 2000 (see Chapter 26) and the Nuclear Installations Act 1965 (see
Chapter 6).
153. Although the reference could be more specific. The enactments are listed
in 6 BPD 5.2.
154. So property claims are not now restricted to land, and therefore
include bailment (excluded from old rule—see The Agio Skepi [1992] 2 Lloyd’s Rep.
467), and claims that a contract does not exist (not within the old rule —see Finnish
Marine (n. 107)).
155. See CPR 6.21(1).
156. See Excess Insurance Co. Ltd v. Astra SA Insurance Co. [1997] I.L.Pr.
252 (C.A.) the reasoning remaining relevant to the CPR regime.
157. See Admiralty and Commercial Courts Guide App 15. As to an issue of
time limitation see The Hai Hing [2000] 1 Lloyd’s Rep. 300 (considering the RSC).
158. See MRG (Japan) Ltd v. Engelhard Metals Japan Ltd [2003] EWHC
3418.
159. See e.g. Network Telecom (Europe) Ltd v. Telephone Systems
International Inc [2004] 1 All E.R. (Comm.) 418.
160. [1991] 2 Lloyd’s Rep. 89.
161. As to the arbitration applications see also Arbitration Pra ctice
Direction (62.16, 18) infra and Chapter 13. As to enforcement of judgments and awards
see Smit International Singapore plc Ltd v. Kurnu Dewi Shipping SA [1996] 1
Lloyd’s Rep. 552 and Chapters 27, 28.
162. Thereby rendering unnecessary the power under the old rule of validating
service out by authorising service within.
163. See e.g. Haji-Ioannou v. Frangos [1999] 2 Lloyd’s Rep. 337 (C.A.).
164. Neither the old nor current rule is restricted to parties to a contract ( The Ines
[1993] 2 Lloyd’s Rep. 492). Its scope includes in relation to third parties’ rights and
obligations within the Contracts (Rights of Third Parties) Act 1999 and the Carriage of
Goods By Sea Act 1992. See also Youell v. Kara Mara [2000] 2 Lloyd’s Rep. 102.
165. Construing the old rule, the relevance to the current rule depending on
construction of its scope. Where a claim by a company against a director was not
contractual or quasi contractual the case did not fall within; Newtherapeutics Ltd v.
Katz [1991] 2 All E.R. 151. See also Amoco (UK) Exploration Co. v. British American
Offshore Ltd [1999] 2 All E.R. (Comm.) 201 (and cases there cited) —the party on
whom it is sought to serve must have rights and obligations under the contract.
166. Booth v. Phillips [2004] 2 Lloyd’s Rep. 457 (Comm. Court). Loss claims as
executrix (e.g. funeral expenses) is also a ground ( ibid).
167. [1979] A.C. 210; [1978] 1 Lloyd’s Rep. 1. See also Mercedes Benz AG v.
Leiduck [1995] 2 Lloyd’s Rep. 417 and Chapter 16.
168. But that it was later said, did not mean that the substantive case has to be
heard in England—stay of proceedings is an exercise of jurisdiction. See Chapter 16.
169. Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (SI
1997/302), coming into force 1 April 1997 as amended by SI 2001/3929; Civil
Jurisdiction and Judgments Act 1982 (Provisional and Protective Measures) Scotland
Order 1997 (SI 1997/2780), coming into force on 20 November 1997.
170. See the Amoco case (fn. 135) and Chapter 25.
171. Prior to this rule there was a problem of construing (now 6.20(2)) with the
power to award an interim remedy under s.25, and also doubt cast on the scope of the
Siskina approach. See e.g. X v. Y [1989] 2 Lloyd’s Rep. 561; Channel Tunnel Group
Ltd v. Balfour Beatty Construction Ltd [1993] 1 All E.R. 664 (H.L.) per Lord Browne -
Wilkinson, Lord Goff, Lord Keith. See further Chapter 16.
172. [1987] A.C. 460; [1987] 1 Lloyd’s Rep. 1.
173. See Donohue v. Armco [2002] 1 Lloyd’s Rep. 425 (H.L.) at pa ra. 24, 25;
Beazley v. Horizon Offshore Contractors Inc [2004] EWHC 2555 (in the context of an
anti suit injunction); Excess Insurance v. Allendale (C.A.) 8 March 1995. See also
12.107 as to restrictions on English jurisdiction because of such clauses.
174. See A and B v. C and D [1982] 1 Lloyd’s Rep. 166 (on appeal with a new
scenario [1983] 2 Lloyd’s Rep. 35). An arbitration claim may be served out of the
jurisdiction. See 9.80.
175. As to even greater reluctance with the increase in court management of
proceedings see Reichhold Norway ASA v. Goldman Sachs International [1999] 2 All
E.R. (Comm.) 174 (C.A.). By the rules where the application is for grant of permission
to serve in Scotland or Northern Ireland regard must be paid to comparative cost and
convenience where there is a concurrent remedy (CPR 61.21 (2A)), but (a) this probably
adds little to now accepted principles and (b) leave will be rarely required with the
application of the Civil Jurisdiction and Judgments Act 1982 (see Chapter 8). An
appeal from an order to serve out or refusal to permit service is not a rehearing —the
critical date for consideration is the date of the order ( ISC v. Guerin [1992] 2 Lloyd’s
Rep. 482).
176. CPR 61.4(7), 61.11(5).
177. The wording is interesting in that it refers directly to "an applicable
Convention" and not expressly to any Convention enacted into English law but a
prerequisite must be jurisdiction in English law to hear the case (as to which see
Supreme Court Act 1981, s.20(3)(c), Merchant Shipping Act 1995, Part VII) ( see
further Chapter 24). As to jurisdiction in such actions under Regulation 44/2001 (Art.
7) and Conventions the Brussels and Lugano Conventions, Art. 6a. See Chapter 6 and
the 1976 Limitation Convention. See Chapter 24.
178. Including whether there is a valid arbitration agreement. As to
restrictions (apart from enforcement of awards) to arbitrations connected with
England see Arbitration Act 1996, s.2, CPR 62.5. The rule applies only between
parties to an arbitration (Vale Do Rio Navegacao SA v. Shanghai Bao Steel Ocean
Shipping Co. Ltd [2000] 2 Lloyd’s Rep. 1.
179. In exercising the discretion it should be borne in mind, where
appropriate, that the claimant is bound to arbitrate, and if permission is refused may
have no means of pursuing the claim elsewhere. See The John C. Helmsing [1990] 2
Lloyd’s Rep. 290.
180. Rosseel NV v. Oriental and Commercial Shipping Co. (UK) Ltd [1991] 2
Lloyd’s Rep. 625—there is an obligation to enforce such awards. See Chapter 13.
181. For procedure for responding to a claim form and subsequent procedure
see CPR 6.22, 23, 6 BPD 7.1–7.4, 8.1.
182. As to the Community aspects see further Chapter 4.
183. Which presumably means English law if (as under the former rules) there
may be service in England though service "out" under the CPR (see The Vrontados [1982]
2 Lloyd’s Rep. 241).
184. The Reefer Creole [1994] 1 Lloyd’s Rep. 584. It was not sufficient for
service to be within time under Greek law. It is for the defendant to show that service is
prohibited by the law of the state in which the writ is served. See e.g. The Oinoussin
Pride [1991] 1 Lloyd’s Rep. 126.
185. For consideration of this provision see Arros Invest Ltd v. Nishanor
[2004] EWHC 57.
186. See 6.26A.
187. I.e. the Brussels or Lugano Convention or any other Convention
entered into by the UK regarding service outside the jurisdiction (6.18) —thus including
the Hague Convention (as to which see para. 6).
188. Shiblaq v. Sadikoglu (No. 2) [2004] 2 All E.R. (Comm.) 596.
189. CPR 62.5. A request for service in this way may have to be accompanied
by a translation (6.28). It will then be transmitted to the Foreign Office or
designated authority. Such request must contain an undertaking to meet expenses (6.29).
An official certificate by the authority is evidence of service (6.26(5)).
190. See 6.26A.
191. CPR 11(5).
192. For the earlier approach see Esal v. Pujara [1989] 2 Lloyd’s Rep.
479 (consent to a Mareva injunction)—despite the terms of the injunction referring to
costs and opening of a deposit account, a little hard unless it was made clear that such
consent was submission to the merits jurisdiction distingui shed in SMAY Investments
Ltd v. Sachdev [2003] 1 W.L.R. 1973 where there was no consent to a freezing order
(see 9.42).
193. Such procedural contact could be through service and
acknowledgment of service of the writ. If a defendant actually appeared to co ntest the
merits but later refused to complete the procedural steps it may be that formerly there
would be no basis for an action (see e.g. Broken Hill Proprietary Co. Ltd v. Theodore
Xenakis [1982] 2 Lloyd’s Rep. 304). But under the CPR a court may dispense with
service (CPR 6.9).
196. For the types of interim remedy see CPR 25.1.
197. Civil Courts (Amendment) (No. 2) Order 1999 (SI 1999/10 1 1). The
jurisdiction (limited by the value of a claim) prior to that date was set out in the County
Courts Act 1984, ss.26, 27 (as amended). It was not greatly used.
Chapter 10
Enforcement of Maritime Claims by an Action “in rem” 1. Availability of the

Action "in Rem"
10.1 Unlike the action in personam the action in rem lies only for claims within
Admiralty jurisdiction, but it is not to be equated with that jurisdiction. It lies for such
claims as:
(i) are specified in the Supreme Court Act 1981 as being en forceable by an action
in rem against a ship or (in respect of s.21(2)(3)) other property (s. 21(2) –(4));
(ii)arguably being in rem claims which fall within the "sweeping up" clause of the
Supreme Court Act 1981 (s. 20(1)(c));
(iii) any jurisdiction connected with ships or aircraft vested in the High Court after
the Supreme Court Act 1981 and in accordance with rules of court to be exercised by
the Admiralty Court.
Any claim in rem must be started in the Admiralty court. 1
10.2 The Supreme Court Act 1981, section 2 1(2) and (4) provides:
"(2) In the case of any such claim as is mentioned in section 20(2)(a), (c) or (s) or
any such question as is mentioned in section 20(2)(b), an action in rem may be brought
in the High Court against the ship or property in connection with which the claim or
question arises.
(3) In any case in which there is a maritime lien or other charge on any ship,
aircraft or other property for the amount claimed, an action in rem may be brought in the
High Court against that ship, aircraft or property.
(4) In the case of any such claim as is mentioned in section 20(2)(e) to (r), where
—
(a) the claim arises in connection with a ship; and
(b) the person who would be liable on the cl aim in an action in personam ("the
relevant person") was, when the cause of action arose, the owner or charterer of, or in
possession or in control of, the ship,
an action in rem may (whether or not the claim gives rise to a maritime lien on that
ship) be brought in the High Court against —
(i) that ship, if at the time when the action is brought the relevant person is either
the beneficial owner of that ship as respects all the shares in it or the charterer of it
under a charter by demise; or
(ii) any other ship of which, at the time when the action is brought, the relevant
personisthebeneficialownerasrespectsallthesharesin it.”Theprovisionsdonotdefinean"actioninrem"anymorethansection21(1)
defines an action in personam. But in varying degrees the provisions indicate the assets
(ship or property) in relation to which the action may be brought and the connection (if
any) which there must be between the asset and the person liable in personam.2 The
claims are examined in Ch apter 2. Admiralty Claims Excluded from "in Rem"
Jurisdiction? The Admiralty claim excluded from "in rem " jurisdiction
10.3 The only claim specified in section 20(2) as within Admiralty jurisdiction but
not included within the in rem jurisdiction by section 21 is section 20(2)(d) —"damage
received by a ship". Such a claim would in many cases also fall within other categories —
(such as, for example, damage done by a ship). It does not appear in the Arrest
Convention 1952 or 1999. The claim based on "damage received" was included in the
Administration of Justice Act 1956 in the list of those claims enforceable by an action
in rem but, in 1976, in The Jade, the House of Lords intimated that it was wrongly
included. The basis of that opinion was the requirement that (in common with the claims
now listed in paragraphs (e)–(r) the claim arose "in connection with a ship". That
requirement was said to refer to the ship in relation to which the action in rem was
brought—the ship subject to arrest. It followed that claims based on "damage received
by a ship" referred to the plaintiff’s ship. As a plaintiff could not arrest his own ship, no
action in rem would lie.
10.4 In discussing the claim in Chapter 2 it is pointed out that if the sweeping up
clause encompasses in rem jurisdiction the omission of the claim from the 1981 Act is
of no effect. It may be, however, that its non -inclusion in either the Arrest Convention
1952 or 1999 is a factor pointing to its appropriate exclusion. It may be argued that the
"maritime" content of such a claim may not of itself justify it being considered as
enforceable by an action in rem the damage is caused by a maritime activity. Wheth er
this be so, it seems unfortunate that its rejection was based on the construction of the
need for a claim to be "in connection with a ship" as referring only to the defendant’s
ship. The requirement is discussed infra. The “sweeping up” clause (section 20(1)(c))
10.5 Following the specification of claims within Admiralty jurisdiction the
Supreme Court Act 1981, section 20(1)(c), provides that within that jurisdiction of the
High Court there shall be "any other Admiralty jurisdiction which it had immediat ely
before the commencement of this Act". The scope of this provision was considered in
Chapter 2 in the examination of "maritime claims" and further reference is made to it
after discussion of the nature and development of the action in rem. 2. The Nature of
the Action “in Rem” The action in rem, lien and arrest
10.6 These three aspects of enforcing a maritime claim have not always been
separated, particularly as the bringing of the action in rem (i) may either enforce a lien
(a maritime lien) or create one (a statutory lien) and (ii) creates the foundation for arrest
of the property. To analyse and discuss development of the enforcement of maritime
claims it is, however, essential to keep the connected strands distinct. The li en reflects
the interest to be enforced, the action in rem is the method of enforcement and arrest a
powerful measure of interim relief. 3 The relationship of action in rem and the lien is
discussed in Chapter 17 and arrest and alternative security in Chapt er 15. Consideration
of the action in rem must take place in its historical context —to appreciate both to its
current nature and to form the background for future development. Historical
development of the action in rem
10.7 The phraseology of the statute continues to use the expression of "against the
ship or property . . . " arguably reflecting the fiction built up over the years that the
defendant was the ship or property —the "personification" theory. That theory was
opposed by the view that the action in rem was procedural. Personification
10.8 The personification school (followed in the United States and Canada) looks
on the action in rem as an action against "res" (usually the ship) as the defendant. It
followed that the action is indepen dent of any action against the owner and that it is
based on a substantive claim against the thing. Price 4 and Herbert 5 see the availability
of an action in rem independent of a maritime lien as a consequence of the procedural
view. But this is so only if the action in rem itself is seen as procedural and substantive
effects limited to the maritime lien. In effect, it is an argument which depends for its
validity on the assumption that once the "action in rem" spread outside the "maritime
lien" it somehow changed its character. It therefore begs the question of procedure or
substance through an assumption that a change in character flowed from a wider scope.
But, in reality, the question of the nature of the action remains.
10.9 There are eighteenth century (and earlier) cases stressing the liability of the
ship as distinct from the owners. 6 So the maritime lien may not simply have developed
from the weapon of arrest used to get at the defendant but may have been attached to
substantive rights which in The Bold Buccleugh were brought together into a legal
group. On this view the lien is not the consequence of arrest but rather the continued
acceptance of a substantive right enforced by arrest and sale. In a sense, the arrest is
procedural but it is so because it is attached to a substantive right. The procedural view
10.10 According to this approach (followed in part by English courts) the action in
rem was procedural in origin. Its purpose was to persuade a defendant to appear and
one powerful weapon was the seizure of his assets. The view is exemplified by the
judgment in 1892 in The Dictator7 in which Jeune J. held that shipowners were liable
for the full salvage award once they had appeared in an action in rem even though bail
of less value had been accepted. The judge made it clear that the basis of liability was
liability for the full amount found due, rather than any principle based on the ability of
claim up to the full value of the ship if the bail lodged was less than that value. 8
10.11 The judgment started from the proposition that in the eighteenth century
courts of common law, in considering limitations on Admiralty jurisdiction through
writs of prohibition on proceedings, distinguished between actions based on
jurisdiction over a res and jurisdiction over individuals being concerned with
jurisdiction over individuals. So jurisdiction over a res would not fall within the scope
of such a writ. Secondly, said Jeune J., Admiralty did not regard the action in rem as a
"special form of action" but looked upon arrest of personal property as a means of
obtaining bail for satisfaction of a judgment. The distinction between "in rem" and "in
personam" turned on whether goods or person was arrested. Thirdly, arrest of the
person had become obsolete by the end of the eighteenth century and, finally, the
limitation that the property arrested was that in regard to which a claim was made,
became established "as the idea of a pre -existing maritime lien developed". As a result,
said Jeune J., arrest became the distinctive feature of the action in rem. In supporting
this approach, it has been said the maritime lien is "a later outgrowth from the practice
of arrest" .9
10.12 This historical doctrine is supported by Marsden 10 and Roscoe11 who both
stressed that in early Admiralty practice actions would be started by arrest of the debtor
or of his goods. In 1935 in The Beldis12 the Court of Appeal rejected a contention that
arrest was not restricted to the property in connectio n with the claim, primarily on the
ground that such restriction was clearly accepted by 1851 (in The Bold Buccleugh).13
The court accepted the accounts of Marsden and Roscoe and emphasised that in all
probability arrest was a procedure to provide security (as Marsden said) and in turn
provided a jurisdictional ground in the struggle between Admiralty and common law
courts. Roscoe had argued that the prohibitions issued by common law courts in respect
of actions against individuals encouraged the development of proceedings "in rem",
with which the common law courts had nothing to do. A third view—suggested origin
of Admiralty liens in hypothec and deodand
10.13 Holmes J. attempted to trace the origins of the liens insofar as they were
contractual to the Roman law of hypothec and insofar as they were tortious (i.e.
collision) to a responsibility of the thing for the harm analogous to the old English idea
of deodand. Under this theory the "thing" doing the harm is delivered up. The histor ical
evidence to support this third view is slight, but by the middle of the nineteenth century,
the language of the hypothec was being used to describe the lien in maritime law 14 and
to distinguish if from the possessory lien of common law. The relevance of the three
views
10.14 The three views are of relevance today not only because, according to their
protagonists, they reflect the development of the action in rem, but because each view
has certain consequences as to enforceability and liability flowing from it. In particular
they are relevant to the issue of whether the whole edifice of action in rem, arrest and
lien is simply a matter of procedure or whether the act ion in rem and arrest are, with
judicial sale, methods of enforcement of either a maritime or statutory lien. The current
nature of the action in rem
10.15 In 1997 the House of Lords took a large step in recognising reality in
analysing the action in rem.15 The House held that where on a foreign judgment in an
action in personam had been given in favour of a party, any further action in rem on the
same matter was prohibited by section 34 of the Civil Jurisdiction and Judgments Act
1982. By that provision
"No proceedings may be brought by a person in England and Wales or Northern
Ireland on a cause of action in respect of which a judgment has been given in his favour
in proceedings between the same parties, or their privies, by a court in another part of
the United Kingdom or in a court of an overseas country, unless their judgment is not
enforceable or entitled to recognition in England or Wales or, as the case may be, in
Northern Ireland."
In the view of the House an action in rem in relation to a ship was in substance an
action against the shipowner. Therefore where a claimant had obtained judgment in a
foreign court in respect of a cause of action it could not bring further proceedings as
regards further asserted damage involving the same cause of action. 16 An essential issue
in the proceedings in 1997 was whether the action in rem was the same cause of action
as theaction in personam.17 The House held that it was the same and hence prohibited
by the statutory provision.
10.16 In reviewing the development of the action in rem Lord Steyn referred to the
use of "personification" of the ship by the Admiralty Court to protect its jurisdiction,
and the increasing dominance of the procedural theory after the Judicature Acts. 18 While
generally supporting the procedural approach, Lord Steyn acknowledged that it failed to
explain how some maritime liens could be enforced against an owner and bona fide
purchaser despite the lack of personal liability in an owner. 19 But there the matter was
left as the case before the House was not concerned with maritime liens. 20 Whatever
inconsistencies there were did not affect the general conclusion that in reality an action
in rem was against the owner, and not the ship. 21 It is that conclusion which is to be
emphasised in the examination of the nature of the action in rem. The relationship
between that action and the lien (a matter directly linked with the nature and role of the
action in rem) is discussed in the context of liens ( see Chapter 17). “Property” subject
to the action in rem
10.17 The action lies in relation to a ship or (in respect of section 21(2), (3))
"other property" either to create or enforce the lien which attaches to the ship or other
property. It follows that it is such property that may be arrested.
10.18 Property falling within that subject to a lien (and in particular that which
forms or remains part of a ship) and therefore to an action in rem and arrest is discussed
in Chapters 15, 18 and 19. 22 The property subject to an action in rem and arrest is
identified in kind by that subject to the applicable lien but its value (and even its nature)
may change during the enforcement process. So a ship may be damaged or almost
destroyed. Anomalously it has been hel d that property of the shipowner aboard the ship
(in the particular case, bunkers) were available for arrest and form part of any fund
available to the "in rem" creditors. 23 But there is a fundamental difficulty in the
availability of property not initially subject to a lien to enforce that lien ( see Chapter
18).
3. Claims for Which Action "in Rem" Is Available under Section 21(2)-(4)
10.19 The conditions relevant to bringing an action in rem vary according to
whether the claim (i) attracts a maritime lien or (ii) falls within section 21(1 )(e) –(r) or
(iii) section 2 1(a), (b), (c) or (s). (i) Maritime Liens (Section 21(3))
10.20 The claims to which a maritime lien is attached are examined in Chapter 2.
As has been said, they are well established and unlikely to be judicially extended. The
claims are:
(1) Bottomry and respondentia
(2) Damage done by a ship
(3) Salvage
(4) Seamen’s and masters’ wages
(5) Masters’ disbursements.
All such claims, save respondentia, fall within section 20(2)(e) –(r) and are
enforceable by action in rem as maritime liens or by an action in rem under the
framework of section 2 1(4). The action in rem enforcing a claim as a maritime lien
under section 2 1(3) is against the "ship or other property" in which there is a maritime
lien. To be enforceable under section 21(4) the claim must be in connection with a ship,
and against a ship, and there must be a required contact between ship and the person
liable in personam. However, there may be an action in relation to a ship other than that
directly concerned (see infra).
10.21 The general restriction of arrest to "one ship for one claim" (now enshrined
in respect of section 21(4) in section 21(8)) would prevent the use of both methods in
enforcement of the same claim against more than one ship. There may be no action in
relation to a ship not directly concerned. The concept of maritime lien
10.22 The Supreme Court Act 1981 does not define the maritime lien. It does not
specify the claims which attract it and, apart from limiting its force to the asset to which
it may attach, ignores its characteristics. There is no specific indication of the
"property" apart from ships to which it may attach, nor of the conditions of its
attachment and there is no reference to any link with liability in personam. To discover
the effect of section 21(3), therefore, recourse must be had to judicial definition and
development. The characteristics of the maritime lien are discussed in Chapter 18. "Or
other charge"
10.23 As is said in Chapter 2, the phrase has been judicially declared to
encompass only (in English law) any statutory charge equated to a maritime lien or (in
foreign law) a charge amounting to an English maritime lien. 24 (ii) In Relation to
Claims within Section 20(2) (e)-(r)
10.24 The action may be brought under section 21(4) against either the particular
ship creating the claim or (in broad terms) a "sister ship". Although in respect of any
claim any number of claim forms may be issued or any number of ships named in one
claim form, one ship only may be served with a claim form or arrested in respect of on e
claim.25 There are a number of prerequisites for bringing the action. A Against the
particular ship
10.25 The claim must arise "in connection with a ship" . The provision may be
read simply as restricting the jurisdiction to "ship" claims, i.e. excluding the other
"property" referred to in section 21(2) and (3). 26 As indicated in the discussion of
"damage received by a ship" it may restrict claims to the ship in relation to which
claims arise (as in relation to claims for ownership, possession or mortgage). 27 If the
latter construction is correct, as in The Jade,28 an owner cannot bring an action in rem
in relation to damage received by his ship, nor, despite cases prior to The Jade in which
such an action had been allowed, 29 a tug owner in respect of a contract of towage. 30
Given the focus of the "in rem" process on maritime matters there seems no reason to
exclude such claims from it. Their exclusion certainly does not follow nece ssarily from
the exclusion of "damage received by a ship", for the focus of the claim would be on
maritime activity specifically within the Arrest Convention and legislation.
10.26 If the "ship" must be the defendant’s ship there is the possibility that "s ister
ship" claims may also be restricted, in that no in rem claim will lie against the ship
involved. However, in 1982 in The Span Terza 31 no point seems to have been taken by
counsel or the court that an owner seeking to enforce an action for breach of
charterparty could not bring an action in rem against a ship owned by a charterer. In
1999 in The Tychy 32 it was conceded that such an action was "in connection with a
ship".
10.27 The person who would be liable on the claim in an action in personam 33
was when the cause of action arose the owner or charterer 34 or in possession or
control of the ship and when the action was brought must be either the beneficial
owner of that ship as respects all the shares in it or the charterer of it under a charter by
demise.
10.28 The ability to bring an action in rem under this provision, therefore, requires
at two critical times a link between the person liable in personam and the ship
concerned in the claim. Such a link does not appear in the provision relating to mariti me
liens or that relating to the claims of section 20(2)(a) –(c) and (s). (a) Legislative history
and present scope
10.29 The Supreme Court Act 1981 largely reflects the Administration of Justice
Act 1956 which enacted (in part) the Arrest Convention 1952 i nto English law.
Although the United Kingdom has ratified the Convention it did not bring English law
into line with its provisions for availability of arrest apart from an action on the merits
in England. 35 First, as regards the availability of arrest apa rt from an action on the
merits in England, in traditional English terms, to allow arrest necessarily implies the
bringing of the action in rem of which arrest is an inherent part. So the enactment of the
Convention had to be in terms of in rem jurisdiction from which follows liability to
arrest whereas under the Convention arrest is provided as an interim remedy and as the
foundation for an action on the merits. The Convention could only be accurately
reflected in English law through separation of arrest from the action on the merits.
10.30 Secondly, there is no requirement in the Arrest Convention of liability when
the action is brought. Thirdly, there was no reflection in English law of the ability under
the Convention to arrest a demise (or arguably other) chartered ship.
Rejection of Convention provisions
10.31 The Supreme Court Bill 1981 (which was to lead to the Act) attempted to
bring English law "up to the limits" provided by the Convention with the replacement of
the requirement of the legislative provision requiring personal liability of persons
linked with the ship. In respect of any claim now set out in section 20(2)(e) –(r) it was
proposed that "being a claim which arises in connection with a ship . . . an actio n in rem
may be brought in the High Court against that ship". Strong objection was voiced to the
clause in the debate in the House of Lords by Lord Diplock acting, as he said, on behalf
of various shipping organisations. He complained that "in what is prim arily a Bill to
consolidate procedural matters a serious and important change in substantive law was
slipping through. 36 Indeed it was. And it may be said that it was only last minute
attention to the clause and its effects that prevented English law from moving towards
meeting its international obligations.
Extension to demise chartered ships
10.32 In relation to the claims now set out in section 20(1)(e) –(r) the
Administration of Justice Act 1956 linked the action in rem to liability in personam of
the user (i.e. owner, charterer or in possession or control) who was or by the time of
issue of writ had become the beneficial owner. An action in rem against the ship in
respect of which the claim arose would lie only if the person liable on the claim in
personam was the beneficial owner “ as respect all the shares" in the ship when the
jurisdiction was invoked. 37 In 1970 in The Andrea Ursula38 Brandon J. held that demise
charterers were beneficial owners within the meaning of the statutory requirement: bu t
in 1977 in The I Congreso del Partido 39 Goff J. held that "beneficially owned" meant
what it said, i.e. equitable ownership whether or not accompanied by legal ownership.
In 1979 in The Father Thames 40 Sheen J. agreed that demise charterers did not quali fy
as beneficial owners.
10.33 This construction underlined the conclusion that the England legislation was
out of step with the Arrest Convention. By the Supreme Court Act 1981 one of the
divergences was cured in that the requirements at the time of the action were widened to
include charter by demise. 41
10.34 The Supreme Court Act 1981 therefore brought England one step closer to
compliance with international obligations, and in recognising jurisdiction on the basis
of the Arrest Convention 42 the Civil Jurisdiction and Judgments Act 1982 provided a
further shuffle in the same direction. The Arrest Convention 1999 perhaps provides
some justification for the failure wholly to adopt the 1952 Convention. 43 First, apart
from maritime liens, or actions relating to possession, ownership mortgage or charge,
liability to arrest requires that the person liable be owner or demise charterer both at
the time the action arose and at the time of arrest. Secondly, a ship not owned by the
person liable may only be arrested if by national law it is subject to judicial sale to
enforce any judgment (see Chapters 2, 6). But, particularly given the understandable
Convention focus on arrest, the need in English law to separate arrest and merits
jurisdiction remains. (b) The critical “in personam” liability link points under the statute
"When the cause of action arose"
10.35 The links (owner, charterer or in possession or control) apply to both the
ship in regard to which the claim is brought (the particular ship) and to "any other ship".
While therefore they must be considered in the context of the particula r ship, apart from
ownership and demise charterer they are particularly relevant in practice to the "other
ship". In regard to the particular ship the connection requirements when the action is
brought (beneficial owner or demise charterer) 44 in most cases provide the effective
limitations on availability. Whether time or voyage charters provide sufficient
connection is in practice a matter chiefly relevant to availability of "other" ships in their
ownership (see 10.49–10.56).
10.36 This refers to the happening of the event on which the claim is based (such
as collision or damage to goods). The requirement is that the person who would if sued
be liable in personam—must be the "owner, charterer or in possession or control". If,
therefore, the owner would be liable in personam the existence of a charterparty will
not affect the liability of the ship to an action in rem and hence arrest. Conversely, if the
ship were in the possession of a person without authority of the owner this requirement
would on the literal wording still be met by that person’s liability in personam.
The ownership of the ship
10.37 In 1988 in The Evpo Agnic 45 Lord Donaldson expressed the view that
"owner" meant "registered owner" and did not in this context encompass a be neficial
owner who was not a registered owner. That conclusion followed, thought Lord
Donaldson, because in the statute "owners" and "beneficial owners" appeared and in the
Arrest Convention 1952 "owner" is equated with "registered owner", and nominal
registered owners were a contradiction in the context of registers of owners relied on
for flag purposes.
10.38 In 1993 in The OHM Mariana Ex Peony 46 the Singapore Court of Appeal
disagreed with the construction, holding that "owner" in this context meant the "right to
sell, dispose of or alienate the ship". So, where under a financing arrangement the
defendants were beneficial but not registered owners, they were "owners" for the
purposes of the provision. And with respect this seems clearly correct —"owner" in
both statute and the Arrest Convention can include beneficial owner. 47
The charterer of the ship 48
10.39 In 1999 in The Tychy49 after a comprehensive reference to the authorities 50the
Court of Appeal held that "charterer" included a ti me, voyage or slot charterer
following and approving of its earlier decision and reasoning (in 1988) in the Span
Terza51 in relation to the charterer. The Court disagreed with comments by Lord
Donaldson in The Evpo Agnic that it was limited to "demise charterer". So to confine
the phrase would be to qualify a clear statutory phrase. 52
10.40 Secondly, it would exclude from liability in rem, maritime property of the
time or voyage charterer against whom action is brought. As the Court said in The Tychy
the time or voyage charterer has a sufficient connection with the ship for an in rem claim
to lie (see infra). No distinction could be drawn in this context between the two and,
further, no difference between a voyage charterer of the whole or part of the ship,
including in the latter a slot charterer. Further, said Clarke L.J. delivering the judgment
of the Court, the phrase "the charterer" includes a charterer who is one of a number of
different charterers (as, for example, de mise, time, voyage) or one of a concurrent
number of the same kind.
10.41 It may be arguable that to attach liability of a shipowner to a ship in the
possession of another without authority is going too far towards pure "in rem" liability,
but such liability could not accrue because of the second link requirement and it would
open the door to enforcement against any ship owned by the wrongdoer ( see infra).
"When the action is brought"
10.42 This requirement greatly restricts the availability of the action in rem in
respect of theclaims to which it refers. The person who would be liable in personam
must be either the beneficial owner as respects all the shares in the ship or the charterer
by demise when the action is brought. So t he same person must satisfy the requirements
at the different times. There is no room for any principle of "universal succession" the
taking over of one enterprise by another —the legal personality must remain the same. 53
As a result, it would seem that a s hip in beneficial co-ownership will be liable to an
action in rem only if all the co-owners would if sued be liable in personam. 54
However, so long as beneficial owners are so liable the existence of other registered
owners would not affect the availability of the action. 55
The claim lies on the issue rather than on the service of the in rem claim form.56 As
a consequence, any change in ownership after the form is issued is irrelevant to the
availability of the action in rem, and it follows that practical advice to plaintiffs must be
to issue a claim form as soon as possible. 57
"The beneficial owner"
10.43 In the context of the equivalent provision of the Administration of Justice Act
1956 (which did not include the alternative of charterer by demise) the phrase refers
"only to such ownership as is vested in a person who whether or not he is the legal
owner is in any case the equitable owner". 58 The prime example of a beneficial owner
is the beneficiary under a trust, but it would perhaps more often apply to an unregistered
owner (e.g. having purchased but not registered). It may include the purchaser once a
contract of sale has been entered into provided:
(i) the vendor had no right to terminate the contract for non-payment of the price or
breach of some other obligation by the purchaser; and
(ii)the contract is capable of specific performance. 59
THE CORPORATE OWNER—PIERCING THE VEIL?
10.44 In strict English legal theory the corporate veil provides substantive
protection. No matter who the shareholders are or whether the corporate ownership is
but a part of a corporate structure which in every aspect save legal theory is a whole,
the corporation presents a solid legal obstacle to a plaintiff. If a ship is "owned" by a
company it matters not that that company is in turn effectively owned by an individual or
another company. The beneficial owner of the ship is a legal person and it is irrelevant
that that "person" is itself beneficially owned by another. Clearly, such an approach is a
boon to the one-ship company and encourages growth of such entities. In 1977 in The
Aventicum60 the issue was whether the corporate veil could be lifted so as to tr ace the
ownership of a ship through its registered corporate owner. Slynn J. expressed some
willingness to look beyond the immediate ownership. But in 1980 in The Maritime
Trader61 Sheen J. indicated that, in his view, it is only where the relationship between
corporate "owner" and ship is clearly a sham or amounts to fraud that any other legal
person can be said to be the beneficial owner. 62
10.45 In the Evpo Agnic63 the Court of Appeal maintained the effectiveness of the
veil, reiterating that the possibility of lifting it depends on establishing registration as a
sham. Lord Donaldson thought that a governing shareholder in a number of one -ship
companies could control the use of the assets of individual companies to his advantage
without any structure of holding and subsidiary companies or sham registered
companies. There was a legitimate interest in running the ships as a fleet and this could
be accomplished by a series of one -ship companies. The statutory provision did not
permit the arrest of a ship of a sister company of the owners of a particular ship. 64 Such
an approach places a heavy onus on the claimant. 65
10.46 However, in two cases the claimant has satisfied the onus —in 1982 in The
Saudi Prince66 and in 1997 in The Tjaskmolen.67 In the latter case Clarke J. wrestled
with the criteria in the light of the authorities, both maritime and general on the subject
of lifting the corporate veil, drawing a distinction between the setting up of o ne ship
companies and a group
"arranging its affairs in such a way to divest a company within the group of its
assets with the purpose and effect of ensuring that they will not be available to meet its
existing liabilities at any rate where the transfer is made to another member of the group
at an undervalue" .
The sale at issue (as described above) was a sham or facade. As a result it did not
transfer ¸ beneficial ownership. Clarke J. commented that the courts had not worked out
the meaning of "piercing the corporate veil" but it seems to require the moving of assets
to defeat current or perhaps potential liability with (arguably) no commercial benefit
save that of defeat.
THE EFFECT OF LONG-TERM FINANCING ARRANGEMENTS
10.47 The traditional method of ship financing through mortgage of the ship and
assignment of insurance policies and charter -hire raises no question as to beneficial
ownership of the ship. This clearly remains with the mortgagor borrower. But where the
financing arrangement is an instalment sa le or, in effect, hire purchase (with an option to
buy built in) it may be argued that the "purchaser" is the beneficial owner. It seems clear
that it is only if the arrangement could be enforced by specific performance that any such
contention could be argued. If the vendor has the power to revoke the agreement in
default of payment this is a compelling factor in the "beneficial ownership" remaining in
the vendor. 68 Even where the remedy of specific performance is available it does not
necessarily follow that as regards a ship (a chattel) the beneficial ownership has
passed.69 The remedy is discretionary and, further, it may be argued, the principle of
transfer of equitable ownership resulting from a contract to sell has little place in the
context of the code represented by the Sale of Goods Act 1979. 70
"The charterer by demise"
10.48 As a result of amendment by the Supreme Court Act 1981 specifying demise
charterer liability of a ship to an action in rem (and thence arrest) where the owner is
not liable in personam such liability may now occur where the ship is demise chartered
without any reference to beneficial ownership. 71 In the context of the Arrest Convention
1952 and the legislation, charter by demise is to be defined by the relationship between
owner and charterer and not as requiring a document recording a consensual agreement.
So exclusive possession and control may be sufficient. 72 B. Against a "sister" ship (i.e.
a ship other than the particular ship)
10.49 For an action in rem to lie:
(i) the claim must arise in connection with a ship—an identical requirement to that
relating to the particular ship;
(ii) the person who would be liable on the claim in an action in personam was
when the cause of action arose the owner or charterer or in possession or control of the
ship; and
when the action was brought the beneficial owner as respects all the shares in the
"sister" ship.
The Arrest Convention 1952 provid es in Article 3(1) that "subject to the
provisions of paragraph (4) of this Article and Article 10 a claimant may arrest the ship
in respect of which the claim arose" (in Convention terms "the particular ship") or "any
other ship which is owned by the person who was, at the time when the maritime claim
arose, the owner of the particular ship . . . ". 73
10.50 Article 3, paragraph 4 provides:
"When in the case of a charter by demise of a ship the charterer and not the
registered owner is liable in respect of a maritime claim relating to that ship, the
claimant may arrest such ship or any other ship in the ownership of the charterer by
demise, subject to the provisions of this Convention but no other ship in the ownership
of the registered owner shall be liable to arrest in respect of such maritime claims. 74
The provisions of this paragraph shall apply to any case in which a person other
than the registered owner of a ship is liable in respect of a maritime claim relating to
that ship."
The construction of "beneficial owner" is identical to that discussed in relation to
an action "against" the particular ship concerned in the claim. Apart from this, two
questions arose in relation to the English statutory provision:
(a) could an action in rem be brought against a "sister ship" other than one in the
same ownership as the ship in respect of which the claim arose;
(b) if so, could an action in rem be brought against a ship owned by any charterer
(i.e. time or voyage as well as demise). (a) May an action "in rem" be brought against a
sister ship other than that in the same ownership as the ship in respect of which the
claim arose?
The Administration of Justice Act 1956
10.51 Under the Act of 1956 it was clear that, as with the Convention, an action
could be brought against a ship other than the ship in respect of which the claim arose if
owned by the owner of the ship in respect of which the claim arose. But it was not clear
whether an action could be brought against any ship owned by a charterer liable in
respect of a claim.
10.52 The suggestion of the restriction of the sister ship clause in English law to
ships owned by the owner of the particular ship had its root in what can only be called a
throwaway line of Lord Diplock in The Jade75—a case not at all concerned with this
issue. In The Permina 108 76 the Court of Appeal of Singapore refused to restrict the
sister ship remedy to ships in common ownership with that in respect of which the claim
arose, but in The Maritime Trader 77 Sheen J. felt obliged to follow Lord Diplock’s
view. In 1981 in The Span Terza 78 (apparently to be approached with caution because
of the hurried nature of the proceedings) the Court of Appeal felt no constraint because
of Lord Diplock’s dictum and approached the matter as one of construction of the Act of
1956.
10.53 In The Span Terza the question was whether, in an action by shipowners
against time charterers of their ship, the plaintiffs could arrest a ship owned by the time
charterers. Contrary to the decision in The Maritime Trader, it seemed to be assumed
that had the defendants been demise charterers there would be no issue —the arrest
could stand. By a majority the court held that the arrest of the ship did stand ( see infra).
The Supreme Court Act 1981
10.54 Whatever doubts there may have been because of the drafting of the Act of
1956 and Lord Diplock’s statement, it seems clear that under section 2 1(4) of the
Supreme Court Act 1981 79 an action in rem will lie against ships owned by "charterers"
of or those in possession or control of the ship in respect of which the claim arose.
Redrafting has cured the ambiguity of the language, and the only poin t remaining is
whether "charterer" is restricted to demise charterers. (b) If an action "in rem" may be
brought in relation to a ship owned by a "charterer" does this include time or voyage
charterer?
10.55 This point is discussed in the context of the par ticular ship. As there
indicated, although it applies to both particular and other ships, in practice it arises
most frequently as regards the "other ship". In that context it is critical, for, as construed
to include time, voyage and slot charterers, it p rovides the route for an action in rem
relating to ships owned by them. Any exclusion of a type of charterer would mean that
no action in rem would lie in respect of a maritime claim for which the charterer was
liable in personam.
10.56 The construction accords with a policy of making ships owned by those
liable on maritime claims available to claimants. It may be arguable that (as the English
legislation continues to provide) a ship under time or voyage charter should not be
available to a claimant who has a claim against the charterers. But if this is so it seems
only sensible to make ships owned by such charterers available to arrest in the
enforcement of the claim. 80 (iii) In Relation to Claims and Questions within Section
20(2)(a), (b), (c), (s)
10.57 While the provision relating to claims falling within paragraphs (e) –(r) does
not define an action in rem, it specifies the circumstances in which it may lie. The
provision in relating to claims concerning ownership, possessio n, mortgage, forfeiture
or restoration of a seized ship simply provides that an action in rem may be brought
"against the ship or property in connection with which the claim . . . arises". It may
therefore be brought against property 81 other than a ship but is restricted to the ship or
property involved in the claim. Understandably, given the nature of the claim, the
provision is geared entirely to the kind of issue with no jurisdictional requirement
relating to the defendant’s liability in personam.82
10.58 It was held by the Court of Appeal in Haji Ioannou v. Frangos83 that the
claim is concerned solely with "legal ownership" on the basis that where beneficial
ownership is the focus, it is so stated. But while "beneficial ownership" indicates
specifically the type of the ownership, it does not follow that "ownership" excludes any
kind but "legal". The "sweeping up" clause
10.59 The clause is expressed in jurisdictional terms—and arguably incorporates
without any qualification "jurisdiction" exercised by the Admiralty Court prior to the
Act of 1981. If the jurisdiction encompasses "in rem" claims the nature of those claims
and prerequisites for enforceability must be sought elsewhere than in the Act ( see
Chapter 2). 4. Jurisdiction Prerequisites Other Than the Supreme Court Act 1981
10.60 The statute provides part of the jurisdictional structure for the enforcement
of maritime claims. In specifying the detailed conditions for bringing an action, (i)
section 2 1(4) (referring to paragraphs (e) –(r)) treats the question of enforceability
through the action in rem as a jurisdictional question; (ii) section 2 1(2) and (3)
(referring to paragraphs (a)–(c) and (s) and maritime liens) omits any reference to
prerequisites in bringing such an action; (iii)section 20(1)(c) (the sweeping up clause)
specifies no jurisdictional or other details. No reference is made in relation to any
claim to:
(i) the link required between the dispute and England for the establishment of
English jurisdiction in a case with a foreign element; and
(ii) apart from maritime lien (undefined) any connection between the action in rem
and lien; and
(iii) save in restricting service of a claim form or arrest to one ship (section 21(8))
the remedies available in an action in rem.
The prerequisite of the English link goes essentially to jurisdiction —to the ability
to bring the action—and is considered in this chapter. Liens are considered in Chapters
17–23 and remedies in Chapters 15 (interim) and 25 (substantive). Link between the
Issue and England Required for an Action "in Rem" to Be Brought The basic rule
10.61 As with the action in personam, no hint is given in the Supreme Court Act
1981 of the basic rule for either the establishment of substantive jurisdiction or the
procedural commencement of the action in rem. As with the action in personam in
English law, apart from statutory provisions, substantive jurisdiction is connected with
procedural commencement. Both jurisdiction and commencement depend primarily on
the service of an in rem claim form in a manner provided in the Admiralty Practice
Direction 3.6 84 (see infra "service of the claim form"). Jurisdiction does not require
arrest of the ship, but it would seem under English law arrest would provide substantive
jurisdiction with procedural commencement through service of the claim form. 85 Unlike
the in personam claim form, an in rem claim form cannot be served out of England or
its territorial waters. Such service initiates the action in rem and, subject to any
challenge to jurisdiction, may provide the basis for the defendant’s submission to the
jurisdiction formerly provided by appearance to create jurisdiction in personam.86 The
effect of Conventions enacted into English law
10.62 The availability of the action in rem is subject to Convention jurisdiction
bases just as is an action in personam. The action in rem as a national method of
enforcement of a maritime claim is as such affected by Convention jurisdiction
provisions restricting the courts before which a case may be brought. However, given
the required Convention link (as, for example, t he court of the state of embarking in the
Athens Convention 1974 concerning passengers) the availability of the action as a
method of suit would only be restricted if the Convention provisions went directly to the
method of enforcement or essential element s of the action in rem. So an action under the
Collision Jurisdiction Convention requires a specified connection (including arrest or
security given in lieu of arrest), and so it would therefore seem service of the in rem
claim form would not of itself constitute jurisdiction if the Convention were directly
enacted. Conventions and their effect are discussed in Chapter 3. The effect of (a) the
Brussels and Lugano Conventions (b) EC Regulation 44/200 1
(a) The Conventions
10.63 The effect of the Lugano Convention is identical to that of the Brussels
Convention. As said in Chapter 4 neither Convention makes any specific reference to an
action in rem. In The Deichland87 the Court of Appeal rejected the contention that the
action in rem fell outside the Brussels Convention. For the purposes of the Conventions
the person who would be liable in personam was "the defendant", a conclusion now
part of English law apart from the Conventions. So, apart from any other Convention
jurisdiction base, the defendant chart erer in that case had to be sued in the court of
domicile (see Chapter 4). If the domicile was in the United Kingdom the Convention
would have no relevance to suit by an action in rem. The Convention is concerned only
with allocation of jurisdiction not in the method of its exercise.
10.64 However, as has also been seen, Convention jurisdiction may be based on
elements directly relevant to the action in rem—arrest or security given in lieu. 88 So
again, provided the Convention link is pr esent the action in rem will lie. As a
consequence where a dispute falls within the Brussels or Lugano Convention the action
in rem will not lie simply through service of the claim form, this not being a jurisdiction
base of either Convention or of a Conve ntion applied through Article 57 (see Chapters
5, 6).
10.65 As with the action in personam in the face of the need to satisfy jurisdiction
requirements the service of the claim form loses its jurisdictional role. As with the in
personam claim form, the in rem claim form retains its procedural role in commencing
proceedings, but, it also retains its function in initiating a method of suit which of itself
in English law has substantive consequences. These, however, are irrelevant to the
Convention jurisdiction requirements which turn entirely on assessing whether they are
satisfied as they appear in the Convention ( see Chapters 5, 12). 89 Participation in the
proceedings save to contest jurisdiction and creating in domestic terms jurisdiction in
personam will amount to the Convention jurisdiction base of "appearance". 90
(b) EC Regulation 44/2001
10.66 Save for limiting the priority of the Arrest Convention 1952 the relevant
provisions of the Regulation are identical and the analysis in 10.63 –10.65 applies. The
limitation of priority of other Conventions to those entered into prior to 1 March 2002
does not affect any issue involving States which became parties prior to that date. But it
radically affects any EU Member State not such a party (e. g. Malta) and presumably
issues involving such a State and a State which became a party prior to that date. The
issue and possible remedy through a Council Decision is discussed in 5.12. 91 5.
Procedure of an Action "in Rem" Jurisdiction in Rem
10.67 The jurisdiction in a claim in rem depends on satisfaction of the procedural
requirements and not on the likely success of the claim. 92 A claim may be stayed or
struck out on the ground that it has no chance of success 93—but this course reflects the
exercise of jurisdiction. Commencement
10.68 An action in rem is commenced by the issue of an in rem claim form in
England. It may not be served out of the jurisdiction. Where an action may be brought
against a "sister ship" one or more ships may be named in the claim form. Only one ship
may, however, be served—but service on a ship liable in a claim will not be prohibited
by service (in mistake) of a ship not liable. 94 If the claim form is amended to delete a
claim in respect of a particular ship that clai m may be served on a further ship. 95
Subject to extension the claim form must be served within 12 months of issue 96 by the
claimant or, if on property arrested or to be arrested the Admiralty Marshal at the
claimant’s request. 97
10.69 Extension of time is subject to the same rules as for an action in personam
as set out in the Civil Procedure Rules 7.6 and discussed in Chapter 9. As there said,
authorities on renewal under the Rules of the Supreme Court must be treated with
circumspection given the general objectives of the Civil Procedure Rules and the terms
of the rules. 98 There is no prohibition because of the expiry of a statutory limitation
period but the court’s powers of extension after expiry of t he initial period for service
may be exercised only if (i) the claimant has taken all reasonable steps to serve but been
unable to do so and (ii) the application for extension is made promptly.
10.70 In 1977 in The Berny99 Brandon J. reviewed the principles of renewal of a
writ in rem when the basis was impossibility of service, and those principles remain
relevant:
"In my opinion, when the ground for renewal is broadly that it has not been
possible to effect service, a plaintiff must in order to show good and sufficient cause for
renewal establish one or other of three matters as follows: (1) that none of the ships
proceeded against in respect of the same claim, whether in one action or more than on e
action, has been, or will be, present at a place within the jurisdiction during the
currency of the writ; alternatively (2) that if any of the ships has been, or will be,
present at a place within the jurisdiction during the currency of the writ, the len gth or
other circumstances of her visit to or stay at such place were not, or will not be, such as
to afford reasonable opportunity for effecting service on her and arresting her;
alternatively (3) that if any of the ships has been, or will be, present at a place within
the jurisdiction during the currency of the writ, the value of such ship was not or will
not be, great enough to provide adequate security for the claim, whereas the value of all
or some or one of the other ships proceeded against would be s ufficient, or anyhow
more nearly sufficient, to do so." 100
10.71 In 1979 in The Helene Roth 101 it was argued that where, after the issue of a
writ but before its service, a ship was sold, the writ should not be renewed even if the
claimant satisfied the criteria set out by Brandon J. It was said that, particularly where
the ship was sold after the writ had expired, it was bought with immunity from service
just as if a time bar had operated and the ship had achieved immunity from sui t. Sheen J.
refused to accept the analogy:
"The existence of a time-bar is known to the plaintiff’s advisers. They are under a
duty to pursue an action diligently. If, due to their inaction, the validity of a writ expires,
it is not necessarily unjust that the plaintiff should lose his right to proceed. But a change
of ownership of a ship has a different quality. The sale may be carried out secretly, and
it is voluntary. If it is to have the effect for which counsel contends , then the defendants
are able to introduce their own time -bar without bringing it to the notice of the
plaintiffs."
Sheen J. held that where the ownership had changed, the case for renewal was
"overwhelming" as, unlike most actions, the claimant could not issue a fresh writ.
Unless the claim attracted a maritime lien, sale of a ship subject to an action in rem
would defeat the claim in rem.102 The claim form and particulars of claim
10.72 The claimant and defendant may be described rather than named and sa ve in
collision claims particulars of claim must be contained in or served with the claim form
or served on the defendant within 75 days of service of the form. 103 Service of the claim
form
10.73 The Admiralty Claims Practice Direction (61 PD) 3.6 provides:
A claim form in rem may be served in the following ways:
(1) on the property against which the claim is brought by fixing a copy of the claim
form—
(a) on the outside of the property in a position which may reasonably be expected
to be seen; or104
(b) where the property is freight, either —
(i) on the cargo in respect of which the freight was earned; or
(ii) on the ship on which the cargo was carried;
(2) if the property to be served is in the custody of a person who will not permit
access to it, by leaving a copy of the claim form with that person 105;
(3) where the property has been sold by the Marshal, by filing the claim form at the
court;
(4) where there is a notice against arrest, on the person named in the notice as
being authorised to accept service;
(5) on any solicitor authorised to accept service;
(6) in accordance with any agreement providing for service of proceedings; or
(7) in any other manner as the court may direct under rule 6.8 provided that the
property against which the claim is brought or part of it is within the juridiction of the
court.
Rule 6.8 of the Civil Procedure Rules permits a court to authorise service by a
method not specified in the rules 106 (see Chapter 9).
10.74 The reasoning and conclusion in The Good Herald107 that under the former
Rules of the Supreme Court "substituted service" was not applicable to an action in rem
does not therefore continue to hold good. 108 First, there is specific reference to the Civil
Procedure Rule replacing the former rule concerning like service, secondly, there is an
acceptance that a person is a defendant and thirdly there are more permitted methods of
service. Acknowledgment and Amendment of the Claim Form Acknowledgment of
service of the claim form (i) Prior to Service
10.75 A defendant who wishes to defend the claim may file an acknowledgment of
service although the claim form has not been served. 109
10.76 As this is termed "acknowledgment of service" it would seem that the
jurisdictional consequences relating to and following from such an acknowledgment
given after service apply. The filing of such acknowledgment requires an intention to
defend. However, it would seem that it could be the vehicle for any intention to dispute
the jurisdiction and, once filed without the expression of any such intention, there is a
risk that it is to be taken that jurisdiction is to be accepted. However, the non -filing of
such acknowledgment prior to service cannot have any jurisdictional or substantive
consequence—it is a voluntary act.110 (ii) Of Service
10.77 As with an action in personam a "defendant" served with a claim form must
acknowledge service of it within 14 days whether or not the claim form contains
particulars of claim and identify himself by name. 111 As with in personam claims such
acknowledgment of service does not affect the right to dispute the Court’s jurisdiction
and indeed is prerequisite for doing so 112 but failure to file will have the consequence
that jurisdiction is accepted. 113
10.77A Failure to file an acknowledgment may lead to a default judgment on proof
of service and evidence proving the claim to the satisfaction of the court. 114 A default
judgment may be varied or set aside. 115 The burden on the claimant is no higher than that
relevant to setting aside a summary judgment under Part 24. 116 Procedure subsequent to
acknowledgment of service
10.78 This is as for in personam claims 117 save for becoming a party or
intervening because of an interest in or concerning arrested property, 118 the need to
prove the case to obtain a default judgment and procedures applicable only to claims in
rem—arrest, cautions against arrest or release and judicial sale. 119 It is to be noted that
a caution against arrest does not constitute submission to the jurisdiction. 120 Amendment of
the claim form
10.79 A claim form may be amended on the same principles as an in personam
claim form including the relevance of expiry of the limitation period ( see Chapter 9).
The addition of a ship or property is not, it is suggested, adding a new party but it is
creating either a new claim or a new liability in relation to which if the limitation
period had expired the defendant would have an accrued defence. The amendment
should not be allowed therefore, because the defendant will be deprived of a limitation
defence in respect of an asset for which there could be no liability in rem if another
action was brought. 121 It is suggested that such circumstances cannot fall within the
provision permitting amendment if a new claim arises out of the same facts, as one of
the "facts" is the ship in relation to which the action is brought. 122 Persons Other Than
Defendants
10.80 Persons interested in a dispute may participate in proceedings as a party or a
third party by making the appropriate claim and (where appropriate) obtaining a court
order.123 In addition in an action in rem a person who has an interest in property
arrested or proceedings of the sale of that property in court may be made a party. 124
Further, there is inherent jurisdiction to allow intervention if, although there is no
interest in the property, its arrest causes serious hardship, difficulty or danger. 125
10.81 A person whose interest in the claim is solely because of an interest in the
property (as the purchaser) should not acknowledge service of a claim form but apply to
intervene on the action. 126 In this way a clear procedural distinction is drawn between a
person liable on the claim (and who would therefore be subject to in personam
injunctions through acknowledgment) and the person whose "liability" is limited to the
value of the interest in the property. There is no in personam jurisdiction in respect of
the intervention because of the leave to intervene. 127 Duration of Action "in Rem"
10.82 An action in rem has as its target ship, cargo or freight, although it is now
recognised that the defendant is the person who has an interest in property ( see supra).
The "lien" created or enforced by the action in rem may be initially enforced through
arrest, but apart from the "arrest" jurisdiction base un der the EC Regulation 44/200 1 or
the Brussels or Lugano Convention 128 the action in rem is not dependent initially on
arrest, that such arrest continues or bail given in lieu.
10.83 The view of Sheen J. that release of a ship from arrest upon the giving o f
contractual security ended the action in rem was disapproved by the Court of Appeal in
The Maciej Rataj.129 Sheen J.’s view with respect ignores the difference between the
action in rem and arrest. Clearly an action in rem may exist without arrest or any
alternative security and it rather reverses the respective roles to see arrest as
controlling the action. The lodging of bail certainly will not end the action in rem
although it replaces property which could form the target for many claimants with a fund
what is security only for the particular claim ( see Chapter 15). Further, without express
terms a contractual security should not be taken to be more than the replacement of the
property by the undertaking (while the undertaking is good). It is not to be implied that it
is necessarily to replace the lien reflected by the action in rem or to affect any maritime
lien—but at most not to enforce it while the contract is in existence ( see Chapter 18). 6.
The Inter-Relationship of Action "in Personam" and Action "in Rem"
10.84 A claim in rem may be brought concurrently or consecutively with a claim in
personam. Even where in personam jurisdiction is rooted in acknowledgment of
service of an in rem claim form (as to which see Chapter 9) the two actions do not
merge. They continue cumulatively. 130 However, it is only persons having an interest in
the ship or other property attacked in the action who can normally be defendants and
who, by joining issue on the writ in rem, thereby submit to an action in personam. So an
action in personam cannot be created through a "non-defendant in rem" acknowledging
service of an in rem claim form. Service of an in personam claim form or the joinder of
a defendant in personam through acknowledgment by an "in rem defendant" would be
required.131 7. County Court Jurisdiction
10.85 County court jurisdiction in Admiralty proceedings conferred under the Civil
Courts Order 1983 was removed as from 26 April 1999 as regards all proceedings
commenced or transferred to such a court after that d ate.132
1. CPR 6 1.2(1). The terminology of the rules focuses on claims "in rem" and
"other claims" but action in personam or in rem remains the statutory terminology. (See
Chapter 1.)
2. The Act of 1981 rid the framework of the confusing concept of "invocation" of
jurisdiction used in the Administration of Justice Act of 1956. "Invocation" was
replaced by the more direct and simple: "an action may be brought".
3. See e.g. the reasoning, involving all three aspects in The Yuta Bondarovskaya
[1998] 2 Lloyd’s Rep. 357.
4. Law of Maritime Liens (1936) at p. 12.
5. See 4 Tulane Law Review 380 (1929 –30) at p. 388.
6. See Johnson v. Shippin (1704) 1 Salk 35 (necessaries); Clay v. Sudgrave
(1700) 1 Salk 33; Wells v. Osman (1704) 2 Ld Ray 1044 (seaman’s wages); The Two
Friends (1799) 1 C. Rob. 271 (salvage); Menetone v. Gibbons (1789) 3 T.R. 267, 270
(bottomry); Greenway and Barkers Case (1577) Godb. 260; 3 Black Book of Admiralty
103, 243, 245, 261–263; Corser v. Husely Comb. 135 (1688); Roscoe, op cit. note 118,
at pp. 213 and 214.
7. [1892] P. 64, 304.
8. As to the ability to rearrest a ship after the lodging of bail, see Chapter 15.
9. Mansfield (1888) 4 L.Q.R. 385.
10. See "Select Pleas in Court of Admiralty", Seldon Soc. p. xxi.
11. Admiralty Practice (3rd edn) at p. 27, citing Clark’s Praxis.
12. [1936] P. 51.
13. (1851) 7 Moo. P.C. 267.
14. See The Young Mechanic (1845) 30 Fed. Cas. 783; The Nestor (1831) 18 Fed.
Cas. 9; The Bold Buccleugh (1851) 7 Moo. P.C. 267. In The Nestor Story J. cited Lord
Tenterden, the author of Abbot’s Merchant Ships.
15. A step bemoaned by some—see e.g. Teare [1998] LMCLQ 33.
16. In prior proceedings it had been held by the House that the effect of s.34 was to
bar proceedings rather than exclude jurisdiction ( Republic of India v. Indian Steamship
Co. [1993] 1 Lloyd’s Rep. 387—see Chapter 27). Hence the matter was remitted to
consider the operation of s.34 and in particular whether there was any agreement,
waiver or estoppel which could defeat it —and reliance was placed on issue estoppel
(see Chapter 27). The further issue of the identity of causes of action was also raised.
The House ruled against the plaintiffs on both issues.
17. It must be stressed that for the operation of s.34 identity of parties is required
as well as identity of cause of action. Where therefore a ship is sold it will remain open
to a claimant to bring any available action in rem in relation to the new owner (see
infra).
18. Including a line of "sovereign immunity" cases holding that in an action in rem
a sovereign owner is directly impleaded. See e.g. The Christina [1938] A.C. 485; The
Aruntzaza Mendi [1939] A.C. 256 and infra.
19. At p. 4 (citing Thomas "Maritime Liens", op cit. at pp. 7–8).
20. Nor with any person save the owner at the date of the act creating the liability.
Such liability cannot be explained away on the basis of t he procedural theory by the
requirement of an in personam liability as arguably may the liability of an owner apart
from maritime liens. See the Indian Grace and supra. As to enforceability against third
parties as a lien see Chapter 17.
21. Interestingly reached in part after reference to the position under the Brussels
Convention and the approach of the European Court of Justice.
22. So parts removed for repair or safe keeping may remain liable to arrest and an
action in rem. See The Palaquin (Federal Court, Canada) 1996 LMLN 439.
23. The Silia [1981] 2 Lloyd’s Rep. 314.
24. See The Acrux [1965] P. 391; The St Merriel [1963] P. 247.
25. Supreme Court Act 1981, s.2 1(8) the writ being replaced by the claim form. As
to arrest see Chapter 15. As to the possibility of pre -empting the claimant’s choice of
ship see infra.
26.I.e. cargo or freight.
27.In that context an obvious and sensible focus. See e.g. The Ocean Enterprise
[1997] 1 Lloyd’s Rep. 489; The Daien Maru No 18 [1986] 1 Lloyd’s Rep. 387
(Singapore H.C.).
28.[1976] 2 Lloyd’s Rep. 1.
29. The Queen of the South [1968] P. 449. See also The Conoco Britannia [1972]
1 Q.B. 543. For a criticism of the decisions, see The Jade [1976] 1 All E.R. 441, at p.
459 (C.A.) per Sir Gordon Willmer.
30.As e.g The Conoco Britannia [1972] 1 Q.B. 543. See further Sumitomo v.
Alexandrea [2002] 3 S.L.R. 56 (Singapore High Court) as e.g. of restricting the meaning
in respect of goods supplied to a ship to actions regarding that ship and excluding the
supplying ship (marine fuel oil).
31.[1982] 1 Lloyd’s Rep. 225.
32.[1999] 2 Lloyd’s Rep. 11.
33.I.e. who would be liable if the action succeeded. See The St Elefterio [1957]
P. 179, at p. 185; The St Merriel [1963] 1 All E.R. 537, at p. 544; The Moscanthy
[1971] 1 Lloyd’s Rep. 37. An identical approach is adopted by the High Court of
Australia, see The Iran Amanar [1999] LMLN 511. It is assumed that the relevant
person has his habitual residence or place of business in England (Supreme Court Act
1981, s.21(2))—a provision designed to overcome the necessity of such a link in
collision actions (see Chapter 3), but which isneeded in a wider sphere in respect of
actions within the Civil Jurisdiction and Judgments Act 1982 ( see Chapter 4).
34.For a discussion on whether the “ charterer” is confined to demise charterer,
see infra.
35.The Civil Jurisdiction and Judgments Act 1982 (s.26) permits the retention of
"property" arrested or other security given if proceedings are stayed —the arrest or
security requires that an action in rem has been instituted. As to the lack of control of the
court over the issue of the warrant of arrest, see The Varna [1993] 2 Lloyd’s Rep. 253
and Chapter 15.
36.H.L. Vol. 418, col. 1308 but the 1999 Convention is closer to English law. See
Chapter 15.
37.I.e. when the writ was issued. See The Monica S [1968] P. 741; The Vasso
[1984] 1 Lloyd’s Rep. 235. Reliance on "invoking of jur isdiction" led to problems of
interpretation (compare The Monica S with The Berny [1979] Q.B. 80) and has been
sensibly replaced in the Supreme Court Act 1981 by "the bringing of an action".
38.[1973] Q.B. 265.
39.[1978] 1 All E.R. 1169. The case went to the House of Lords on a separate
point of sovereign immunity ([1981] 2 All E.R. 1064).
40.[1979] 2 Lloyd’s Rep. 364.
41.Strictly the amendment means that a ship owned, chartered or in possession or
control of a person liable on a claim when the cause of action arose and demise
chartered by the same person at the time the action is brought may be attacked through an
action in rem. In practice it is the ship under demise charter at both times that is the
prime focus of the amendment.
42. I.e. through its application under Art. 72 of EC Regulation 44/200 1 or Art. 57
of the Brussels and Lugano Conventions ( see Chapter 6).
43. The Convention provides that it is not to be construed as creating a right of
action not arising under the law of the court having seisin of the case (Art. 9) —but there
would be little point in the Convention if it did not impose an obligation to adopt its
provisions.
44. See e.g. The Kommunar (No. 2) [1997] 1 Lloyd’s Rep. 8.
45. [1988] 2 Lloyd’s Rep. 411; [1988] 3 All E.R. 810.
46. [1993] LMLN 361.
47. See also Haji Ioannou v. Frangos [1999] 2 Lloyd’s Rep. 337 (C.A.)
considering an "ownership" claim (see infra) advancing as "accepted law" (citing The
Evpo Agnic (fn. 45) and Congreso del Partido (fn. 39)) that "ownership" in the
Convention and Statute meant legal ownership unless qualified by "beneficial". It is
difficult to appreciate the reasoning or the construction, nor, with respect, do the two
authorities cited provide a foundation that the construction is accepted law. While there
may be two (or more) registered owners "beneficial ownership" means that the ship
must be wholly beneficially owned by the beneficial owner who is liable in personam
(see The Tychy (fn. 49) and infra).
48. I.e. the charter being in existence —it not being sufficient that liability arises
out of having been a charterer (see The Faial [2000] 1 Lloyd’s Rep. 47). Compare
Coscol Marine Corpn v. Owners of the "Salina" (Singapore C.A.) [1999] LMLN 500.
49. [1999] 2 Lloyd’s Rep. 11.
50. Including those of other jurisdictions and, in particular, relying on the decision
of the High Court of Australia in Laemthong International Lines Co. Ltd v. BPS
Shipping Ltd [1997] 149 A.L.R. 675.
51. [1982] 1 Lloyd’s Rep. 225.
52. A point underlined by the use of s.2 1(4) of "charter by demise" where that was
intended.
53. See The Kommunar (No. 2) [1997] 1 Lloyd’s Rep. 8—a privatised Russian
state enterprise was not the same legal person as it was prior to privatisation. See also
The Nazym Khikmet [1996] 2 Lloyd’s Rep. 362 (C.A.); The Guiseppe di Vittorio
[1998] 1 Lloyd’s Rep. 136 the relationship between a trading enterprise (Black Sea
Shipping Co.) and the State of Ukraine did not amount to equitable ownership and hence
the enterprise was not a beneficial owner.
54. See e.g. The Fort Laramie (1922) 31 C.L.R. 56.
55. See The Tychy (fn. 49).
56. See fn. 37 supra.
57. More than one form may be issued and more than one ship named in one form
but only one ship may be served (see infra), s.21(8)). As to the renewal of claim forms,
see infra and Chapter 11.
58. The I Congreso del Partido [1978] 1 All E.R. 1169, at p. 1201 (Goff J.). As to
the possibility that such an owner may be estopped from denying that a person holding
out himself to be the owner see The Guiseppe di Vittorio [1998] 1 Lloyd’s Rep. 136.
59. See The Permina 3001 [1979] 1 Lloyd’s Rep. 327 (Singapore C.A.) and infra.
A contract of sale specifying that ownership is transferred only on registration would
also not operate to transfer any "beneficial ownership".
60. [1978] 1 Lloyd’s Rep. 184.
61. [1981] 2 Lloyd’s Rep. 153.
62. For continued legal emphasis on the separate legal identity of companies
within a group and the need to prove a sham see Woolfson v. Strathclyde Regional
Council 1978 SLT 159 (H.L.); Adams v. Cape Industries [1991] 1 All E.R. 929 at pp.
10 16–1026 (C.A.) and cases cited in The Tjaskmolen (fn. 67). But as accepted in
Adams the veil is not entirely prohibitive, see e.g. (i) two cases involving RSC Ord. 47
(contained in CPR Sch.) (conferring the power to stay execution of a judgment or order)
where the courts have expressed a willingness to look behind the corporate structure —
on the basis that the discretion given by the Order is sufficiently wide for the purpose
(see Orri v. Moundreas [1981] Com.L.R. 168; Canada Enterprises Corpn Ltd v.
MacNab Distilleries Ltd [1981] Com.L.R. 167); Burnet v. Francis Industries Plc
[1987] 1 W.L.R. 802 and (ii) the scope of injunctive relief ( The Coral Rose [1991] 1
Lloyd’s Rep. 563; The Coral Rose (No. 3) [1991] 2 Lloyd’s Rep. 374 (as to which see
Chapter 16—Freezing order)).
63. [1988] 3 All E.R. 810; [1988] 2 Lloyd’s Rep. 411.
64. Distinguishing the "spiriting away of a ship from legal owners with, however,
the retention of beneficial ownership" (such as, said Lord Donaldson, had occurred in
The Saudi Prince (supra)). See also for a similar approach The Skaw Prince [1994]
L.M.L.N. 390 (Singapore High Court); The Andres Bonifaco [1994] LMLN 382
(Singapore High Court); The Tangiora, Ranginui and Takitimu [2000] 1 Lloyd’s Rep.
36 (New Zealand High Court).
65. Even if the somewhat wider approach of Slynn J. be followed a further hurdle
for the plaintiff is whether "ownership" of the company requires ownership of 100 per
cent of the shares in the company—in turn owning all the shares in the ship.
66. [1982] 2 Lloyd’s Rep. 255.
67. [1997] 2 Lloyd’s Rep. 465.
68. See The Permina 3001 [1979] 1 Lloyd’s Rep. 327.
69. See The Despina Pontikos [1975] E.A.R. 38 (East Africa C.A.).
70. See Re Wait [1927] 1 Ch. 606; The Aliakmon [1986] 2 All E.R. 145; [1986] 2
Lloyd’s Rep. 1 (H.L.).
71. Such liability may also occur through the maritime lien provision or (more
unlikely) the sweeping up clause. See infra and Chapter 18.
72. The Guiseppe di Vittorio [1998] 1 Lloyd’s Rep. 136 (C.A.). The omission of
"possession or control" as regards the requirement relating to the time the action is
brought is of no significance in deciding whether a relationship can be described as a
charter by demise (ibid.).
73. The provision does not apply to claims concerning o wnership mortgage or
dispute between co-owners (ibid.).
74. As to the revision of the Convention see Chapter 15.
75.[1976] 2 Lloyd’s Rep. 1.
76.[1978] 1 Lloyd’s Rep. 311.
77.[1981] 2 Lloyd’s Rep. 153.
78.[1982] 1 Lloyd’s Rep. 225.
79. See supra.
80. For a contrary view, see Tettenborn [1981] LMCLQ 507. It is also arguable
that for some countries the Convention simply restricted "saisie conservatoire" and by
definition therefore affected only the debtor’ s property. As to the limiting of arrest under
the Arrest Convention 1999 of ships not owned by the person liable see Chapter 15.
81. The only relevant "property" other than a ship appears to be in para. (s) —
"goods" which are forfeited or condemned or su bject of a claim for droits of
Admiralty (cf. Chapter 2).
82. See e.g. The Ocean Enterprise [1997] 1 Lloyd’s Rep 449; The Daien Maru
No. 18 [1986] Lloyd’s Rep. 387 (Singapore H.C.); Gleason v. The Ship "Dawn Light"
Federal Court Canada [1997] LMLN 455. Fo r discussion of the claim see Chapter 2.
83. See fn. 47.
84. In contrast to RSC Ord. 75, r. 8 not providing as a basic rule that service must
be on the property, but simply varying methods of service. The rules governing issues
and service of the in rem claim form and the issue and service of the warrant of arrest
are set out in CPR 61.3, 5: 61 PD3, 5 (see 10.72, 73). See infra.
85. Under some Conventions arrest would provide jurisdiction —as e.g. under
Arrest Convention 1952 as given direct effect in English law through the Brussels and
Lugano Conventions Art. 57 (see infra); the CMR Art. 36. (See Carriage of Goods by
Road Act 1965, s.1 and Sch.) Under the Hamburg Rules, Art. 21, a defendant may, on
providing adequate security, obtain transfer of the action in a jurisdiction based on
arrest to a jurisdiction specified. See Chapter 15.
86.See infra and Chapter 9.
87. [1989] 2 Lloyd’s Rep. 113; [1989] 2 All E.R. 1066.
88. Through Art. 57. See The Deichland (fn. 59); The Po [1991] 2 Lloyd’s Rep.
206 and Chapter 6.
89. Whether the Arrest Convention 1952 has become part of English law directly
thereby overriding any jurisdictional aspect of service or whether its provisions are
simply additional requirements was left open by the C.A. in The Po (fn. 60). But to give
jurisdiction significance to service of a claim form would seem unjustifiably to qualify
the Convention provisions even if as in this case consistent with them. See Chapter 6.
90. See The Anna H [1995] 1 Lloyd’s Rep. 11 and Chapter 5.
91. The restriction also means that no EU Member State may become a party to the
Arrest Convention 1999 without such a Decision.
92. See The Moscanthy [1971] 1 Lloyd’s Rep. 39 (applied in The Yuta
Bonderovskaya [1998] 2 Lloyd’s Rep. 357). See also Haji Ioannou v. Frangos [1999]
2 Lloyd’s Rep. 337 (C.A.).
93. CPR 3.4. Summary judgment is not available (CPR 24.3). As to default
judgment see 10.76 and Chapter 27.
94. Supreme Court Act 1981, s.21(8); The Stephan J [1985] 2 Lloyd’s Rep. 344.
95. See The Damavand [1993] LMLN 357 (Singapore C.A.). The court also held
that a plaintiff could amend the writ at any time subject to the rules of court and the
abuse of process and therefore was not prohibited from deleting a claim so as to remove
a ship as the target for a claim. As to amendment of the claim form through addition of a
ship outside the limitation period see infra.
96. CPR 61.3(5).
97. CPR 61 PD 3.7, 3.8.
98. The note in "Civil Procedure" (the White Book Service) indicates that the rule
does not effect a change in practice but clarifies RSC Ord. 6, r. 8. With respect it does
more than this by specifying strict conditions for renewal after the pe riod for service
has expired. As to the use of the power to order an alternative method of service or to
dispense with service to overcome non compliance see Chapter 9.
99. [1977] 2 Lloyd’s Rep. 533; [1978] 1 All E.R. 1068.
100. [1977] 2 Lloyd’s Rep. at 546. Brandon J. thereby disapproved of previous
Admiralty practice of considering renewal of a writ naming a number of ships on a ship
by ship basis—it is necessary for the plaintiff to prove that none of the ships become
available to him within the criteria laid down.
101. [1980] 1 Lloyd’s Rep. 477; [1980] 1 All E.R. 1078.
102. Since 1 January 1982 a sale of a ship remaining under the same demise
charterer after issue of a claim form would not defeat the claim against the demise
charterer—otherwise the situation is unchanged (see Chapter 4).
103. CPR 61.3(3), 61 PD 3.2. The claim form is Form ADM 1. A claimant who is
not named, must be named at the defendant’s request. There is no requirement of
particulars of claim in a collision claim 61 .4(2).
104. An in rem claim form may be served on property under arrest ( ibid., 6.5(1)).
105. Part of the proceeds must still be in court. A claim form may not be served on
proceeds held by an agent who sold the property ( The Optima (1905) 74 L.T.P. 94; The
Fornjot (1907) 24 T.L.R. 26).
106. It has been held (rightly it is suggested) by the Singapore C.A. in relation to
rules equivalent to the former RSC that acceptance of service by an authorised solicitor
cannot operate to remove a plaintiff’ s choice of ship where a writ names numerous
ships—the rule then rendering service on the ship unnecessary but not providing that
such service is deemed to have been made. See The Fierbinti [1994] LMLN 396. See
also The Pacific Bear [1979] Hong Kong L.R. 125. That reasoning seems equally
applicable to any acknowledgment of service in relation to the various methods of
service apart from on the ship. An undertaking to accept service of an in rem claim form
in respect of a "competent court" meant a court comp etent to hear the claim not a court
having at that date in rem jurisdiction The Juntha Rajprueck [2003] 2 Lloyd’s Rep. 107
(C.A.). See further??. The Oakwell [1999] 1 Lloyd’s Rep. 249 and Chapter 15.
107. [1987] 1 Lloyd’s Rep. 236.
108. Ord. 65, r. 4, i.e. that it applies only to personal service —the purpose being
to bring it to the notice of the defendant (indeed the reasoning was always perhaps
suspect).
109. CPR 6 1.3(6). Once a claim form has been issued and security sought a p erson
who has filed an acknowledgment of service may apply for a court order specifying the
amount and form (ibid., 61.5(10)).
110. As to failure to file an acknowledgment see Chapter 9.
111. CPR 61.3(4) 61 PD 3.4, 3.5. The acknowledgment is Form ADM 2. Where
the defendants were described on the claim form as e.g. "Owners of The Ship X" those
acknowledging service must be named and the nature of ownership stated 61 PD 3.9.
112. Ibid. 61 PD 3.11 referring to CPR 10.1(3). See Chapter 9. As to specifying
security see fn. 108.
113. See Chapter 9.
114. Ibid. 61.9. Claim must be proved because of the traditional view of the action
in rem with the ship as the defendant. Now that fiction has gone there seems little need
for the difference in approach.
115. CPR 61.9(5).
116. The Selby Paradigm [2004] 2 Lloyd’s Rep. 714 and see Chapter 27.
117. Ibid. 2.5—but the claim continues as "in rem" (ibid.).
118. See 61.8(7), (10) and Chapter 15.
120. CPR 61 PD 6.1.
121. See the approach in The Kusu Island (1989) Singapore C.A. construing the
Singapore rules of court (for discussion see [1990] LMCLQ 169). As to the limitation
period see Chapter 11.
122. As to the grounds on which amendment may be permitted after the limitation
period has expired see Chapter 11.
123. See CPR 19. Save for specific restrictions where an applicable time limit has
expired the power to add a new party is general, and does not require that the new party
have an existing cause of action. See 19.2. Chubb Insurance Co. v. Davies [2004]
EWHC 2138. As to time limits see Chapter 11.
124. C P R 6 1. 7 .
125. The Mardina Merchant [1974] 2 Lloyd’s Rep. 424—harbour authority
affected by presence of vessel.
126. See The Mara [1988] 2 Lloyd’s Rep. 459.
127. For an example of the procedural distinction operating to preserve a claim
see The Soeraya Emas (Singapore H.C.) [1992] LMLN 338.
128. I.e. either through the application (through Art. 57) of the Arrest Convention
1952 or Collision Jurisdiction Convention 1952 or in respect of salvage of cargo or
freight (Art. 5(7)).
129. [1992] 2 Lloyd’s Rep. 552.
130. Even though subsequent to filing an acknowledgment the procedure is mainly
as for in personam claims (see 61 PD 3.10). As to the merging (or not ) of an action in
rem in a judgment in personam see e.g. The Rena K [1979] 1 All E.R. 397 at p. 416;
The Indian Grace (No. 2) [1997] 1 Lloyd’s Rep. 1. As to the enforcement of a judgment
in rem by an action in rem see The Despina GK [1982] 2 Lloyd’s Rep. 555 and
Chapters 27, 28 and as to enforcement of an arbitration award by an action in rem see
Chapters 3, 13.
131. See generally Caltex Oil (Australia) Pty Ltd v. The dredge Willemstad
(1975–76) 136 C.L.R. 529 (High Court of Australi a). A person threatened with loss
through an arrest may be permitted to intervene. See The Mardina Merchant [1974] 3
All E.R. 749.
132. Civil Courts (Amendment) (No. 2) Order 1999 (SI 1999/10 1 1). The
jurisdiction prior to that date was set out in the Co unty Courts Act 1984, ss.27, 28. It
was not greatly used.
Chapter 11
Delay in Suit 1. Effect of Delay

11.1 The period within which an action must be brought or steps in an action taken
may be imposed by statute, by the Civil Procedure Rules or by contract. 1 It may have
varying consequences dependent on the terms of the provision. It may destroy the
foundation of any claim, ban the bringing of a claim, provide a discretion in a court to
prevent suit, affect the plaintiff’s task in establishing the claim or simply affect costs.
The effect of delay in court proceedings or on enforcement of a right challenged in
court proceedings will depend on the rules of the legal regime of which the court is part.
The effect of delay in arbitral proceedings will depend on the extent to which the
applicable legal regime, first, controls such proceedings and, secondly, allows parties
freedom of contract in relation to them. Insofar as the parties are free to contract for and
about the conduct of arbitration and control of the effect of the contract remains with the
court, thelegal consequence of delay will depend on contractual remedies enforced
through the courts. Delays in the arbitral process are considered in the discussion on
arbitration in Chapter 13. Delay and the Civil Procedure Rules (CPR)
11.2 "The problem with the position prior to the CPR was that often the courts had
to take draconian steps, such as striking out proceedings in order to stop a general
culture of failing to prosecute proceedings expeditiously." 2 The possibility of an all or
nothing result led to wasteful "satellite" litigation focusing on whether the proceedings
should continue and the courts seeking to introduce flexibility. 3 Under the CPR, the
power to strike out is no less stringent and may be exercised ( inter alia) simply for the
"failure to comply with a rule, practice direction or court order". 4 But actual case
management should reduce the possibilities for delay. 5 Further, there are other and less
severe options for a court than striking out such as varying the costs, reducing or
increasing of interest on damages and payment of money into court. 6 In considering the
appropriate order the court must take into account not only the parties but the effec t of
delay on the ability to hear other cases. In the words of Lord Woolf M.R.: "Earlier
authorities are no longer generally of any relevance once the CPR applies." 7
Extinguishment of Right or Remedy?
11.3 The effect of a time bar may be to destroy the claim or merely to prevent the
remedy. In English law, apart from specific exceptions, 8 a time bar affects the remedy
only. Connected with this view is, first, the classification of rules of time bar as
"procedural" rather than substantive, which until the Foreign Limitation Periods Act
1984 had consequences in relation to the governing law in cases with a foreign
element,9 secondly, the need to plead the defence of time bar if it is to be relied on, 10
and, thirdly, the ability to rely on barred claims by way of defence or set off. Where
exceptionally a claim is extinguished through passing of time it will operate whether
pleaded or not unless pleading is required. 11 Avoidance of Effect of Delay
11.4 A time bar on commencement of proceedings or any period for the doing of
any act under the Civil Procedure Rules may, unless otherwise provided, be varied by
agreement between the parties 12 or be rendered of no effect through a defendant being
estopped from denying that time has not run.13 There is no reason why agreement should
not extend or avoid any "time requirement" unless it is expressly prohibited by statute or
rule. Subject to agreement or estoppel, however, there is a general duty on parties not to
delay, and a party waiting until the last moment of a permitted period for a step accepts
the risk of some event occurring which prevents a timely act. 14 Case management under
the CPR underlines the duties of the parties to act with dispatch. 15 2. Aspects of Delay
11.5 Delay has a number of aspects:
(i) The effect of a foreign time bar on English proceedings;
(ii) Notice of claim;
(iii) Commencement of suit—issue of claim form;
(iv) Service of claim form;
(v) Want of prosecution after service of claim form;
(vi) Procedural requirements as to steps in the action;
(vii) Assertion of remedy. 1. Effect of Foreign Time Bar (a) In English
proceedings Prior to Foreign Limitation Periods Act 1984
11.6 Procedural matters are generally governed by the law of forum, and
traditionally English law viewed time bars as matters of procedure. It mattered not
whether the foreign law saw them as substantive, with the result that where foreign law
applied substantively the risk was increased of a conclusion which neither foreign nor
English law would have contemplated. 16 Even when exceptionally English law
classified a time bar as substantive (as, for example, the Hague -Visby Rules) English
law may have continued to apply if (again as with the Hague-Visby Rules) the time bar
formed part of a regime which was mandatory in an English court (as to which see
Chapter 26). The Foreign Limitation Periods Act 1984
11.7 The Foreign Limitation Periods Act 1984 17 changed the classification of time
bars by providing that, in effect, subject to discretionary power to disallow, any issue of
limitation is to be governed by the law governing the substantive matter. 18 Further any
foreign judgment based on limitation is to be treated as a judgment in the merits. The
foreign law is not to apply to the extent that it would cause "undue hardship to a person
who is or might be made a party to the action or proceedin gs".19 "Hardship" depends on
an assessment of how the foreign law affects a party. It is not a balancing exercise as
between the parties. 20 "Undue" means excessive, i.e. out of proportion to any fault there
may have been.21 The Contracts (Applicable Law) Act 1990
11.8 The view of limitation as procedure is further fundamentally affected in
respect of contract issues by the Contracts (Applicable Law) Act 1990 enacting the
Rome Convention on the Law Applicable to Contractual Obligations (as to which see
Chapter 26). By the Convention the "various ways of extinguishing obligation,
prescription and limitation of actions" are matters for the law applicable to the contract.
The application of that law is subject to "mandatory" rules of the law of the forum and
the non-application of any rule "manifestly incompatible" with English public policy. A
time bar is very unlikely to be so "manifestly incompatible" and so far as contract is
concerned this would appear to take over from the "hardship" provisions of the 19 84
Act. (b) Staying English proceedings (i) Jurisdiction agreement
11.9 The operation of a time bar in a particular jurisdiction may affect the
enforcement of a foreign jurisdiction clause in a contract. It may be approached as:
(a) a factor favouring a stay since not to uphold the jurisdiction clause would be to
deprive defendants of an accrued defence;
(b) a factor against a stay since it would leave plaintiffs with no claim; and
(c) neutral because of the conflict between (a) a nd (b).22
In 1997 the Court of Appeal in effect struck a balance between (a) and (b) holding
that where a claimant had acted reasonably in commencing proceedings in England and
allowing time to expire in the agreed foreign jurisdiction, a stay should be gr anted only
on terms that the defendant waived the time bar. 23 But, if it is arguable that waiver might
not be permitted under the foreign law, it may well be that the claimant should not be
made to test the point in the foreign court. 24 In an earlier decision, after an exhaustive
review of the authorities, 25 Rix J. took a stronger line in upholding a jurisdiction
agreement, in effect concluding that for an action not to be stayed there should be, apart
from the time bar, a strong cause for the exercise of English jurisdiction. That is close to
saying that the claimant must show that the failure to issue protective proceedings in the
foreign country was irrelevant—there would have been a refusal of stay in England in
any event.26 Such an approach is more consistent both with a jurisdiction argument and
with the attitude of the English courts to upholding English jurisdiction clauses. 27
11.10 The only reason advanced in the Court of Appeal for making the test less
stringent than that of "strong cause" was that the approach to a foreign time bar as a
factor in forum non conveniens (see below) could be applied in not upholding a foreign
jurisdiction clause. It does seem, however, somewhat lacking in logic and principle to
adapt a criterion relevant where the issue is appropriateness of forum to a case where
the parties have agreed on the jurisdiction. 28 (ii) Forum non conveniens 29
11.11 The approach based on reasonableness of the claimant acting as he had was
approved in The Spiliada as the proper influence of a time bar in a foreign jurisdiction
on a plea of a more appropriate forum. In that context it has more force —for there is no
prior agreement which the claimant is seeking to avoid. 30 So, even if apart from the time
bar, it is shown that there is a more appropriate forum than England in which the action
would be time barred a stay should not be ordered if the claimant acted reasonably in
bringing suit in time in England and not unreasonably in not bringing suit in the foreign
forum.31 However even if not bringing a foreign suit was reasonable an undertaki ng to
waive any time bar may still be required. If the court is inclined to grant a stay but for a
time bar, under the foreign law the bar may be waived and the defendant offers to waive
it, it would be exceptional not to require an undertaking to waive. 32 2. Notice of the
Claim
11.12 Notice of a claim is often required by contract and, in respect of some
claims, by statute. In particular, the Conventions relating to carriage of goods by sea,
road and air require notice to be given on or within a short time (usually a matter of
days) after delivery or receipt of the goods in respect of which the claim is made. 33 The
effect of failure to give notice within the specified time varies. Under the Hague -Visby
Rules (sea) and the CMR (road) the effect in regard to damage claims against the carrier
is that the delivery or receipt is prima facie evidence that the goods were handed over
in a condition complying with the contract. 34 The Athens Convention relating to carriage
of passengers and luggage by sea provides likewise in relation to luggage in that failure
to give notice results in a presumption that the passenger has received the luggage
undamaged. 35 The consequences of failure to give notice in respect of claims and t he
CIM and CIV Conventions 36 (rail) and the Warsaw Convention 37 (air) are more drastic
—the right of action is extinguished. Such provisions are relevant insofar as a maritime
claim may also be within, or may be dragged into, a Convention format primarily aimed
at transport by another mode. 38 3. Commencement of Suit—Issue of Claim Form
11.13 Apart from the few instances when in English law the right is destroyed
through delay there are two approaches:
(1) statutory time limits on the ability to bring cour t proceedings; and
(2) discretionary principles. 39 Statutory time limits The general pattern
11114 The basic pattern setting out the period from the moment when a cause of
action arises within which a claim must be made (i.e. a claim form i ssued) is contained
in the Limitation Act 1 980, 40 and, as regards arbitral proceedings, the Arbitration Act
1996. 41 This was a consolidation of statutes enacted in the previous 40 years and
applies to maritime claims as it does to others. 42
11.15 The period of limitation will depend for its commencement and duration on
the particular statute governing it. The general principles of start and termination
applicable to the framework of the Limitation Act 1980 have both been described as
"anomalous" in that neither takes any account of the awareness of the relevant party. The
period starts in the case of a contract with the creation of a present contractual
obligation or, otherwise, with the occurrence of the damage, loss or injury. 43 Problems
created by latent damage were dealt with by providing in the Latent Damage Act 1986
where appropriate for the period to start at the date of requirement of knowledge of the
damage.44 The period ends with the issue of the claim form. Limitation periods for
particular types of claim
11.16 The Limitation Act does not apply to any action for which period of
limitation is prescribed by any other statute. 45 Other statutes particularly relevant to
maritime claims 46 are the Carriage of Goods by Sea Act 1971 (en acting the Hague-
Visby Rules) (see 11.18), the Carriage of Goods by Road Act 1965 (enacting the CMR
Convention 1956), 47 provisions of various statutes consolidated as from 1 January 1996
in the Merchant Shipping Act 1995 relating to claims based on Conven tion provisions
relating to collision, 48 salvage,49 oil pollution,50 (when in force) carriage of hazardous
and noxious substances 51 and carriage of passengers and their luggage 52 and the
Arbitration Act 1 996. 53 The limitation framework
11.17 Any enquiry about time limits must, therefore, start with a search for a
particular statute relevant to the claim. Lacking such a provision, the question goes to
the application of the Limitation Act 1980. Of the statutes specifying limitation periods
for particular types of claims the provisions of the Carriage of Goods by Sea Act 1971
and those of the 1995 Act relating to collision and salvage claims call for further
comment. (i) Statutes specifying particular limitation periods for particular types of
claim
Carriage claims (i) Carriage of Goods by Sea Act 1971 —the Hague- Visby Rules,
Art. III(6)
11.18 "6. Unless notice of loss or damage and the general nature of such loss or
damage be given in writing to the carrier or his agent at the port of discharge before or
at the time of the removal of the goods into the custody of the person entitled to delivery
thereof under the contract of carriage, or, if the loss or damage be not a pparent, within
three days, such removal shall be prima facie evidence of the delivery by the carrier of
the goods as described in the bill of lading. [54]
The notice in writing need not be given if the state of the goods has, at the time of
their receipt, been the subject of joint survey or inspection.
Subject to paragraph 6 bis the carrier and the ship shall in any event be discharged
from all liability whatsoever in respect of the goods, [55] unless suit is brought within
one year of their delivery or of the date when they should have been delivered. [56] This
period may, however, be extended if the parties so agree after the cause of action has
arisen.
In the case of any actual apprehended loss or damage the carrier and the receiver
shall give all reasonable facilities to each other for inspecting and tallying the goods.
6 bis. An action for indemnity against a third person may be brought even after the
expiration of the year provided for in the preceding paragraph if brought within the time
allowed by the law of the Court seised of the case. However, the time allowed shall be
not less than three months, commencing from the day when the person bringing such
action for indemnity has settled the claim or has been served with process in the action
against himself."57
The effect of this provision is that subject to agreement or estoppel any claim
arising out of the carriage is extinguished 58 and in the view of the majority of the House
of Lords in Aries Tanker Corpn v. Total Transport Ltd 59 it prevents the reliance on a
claim in any way—by defence or set off. The obligation is to bring the claim in a court
competent to consider it by a plaintiff competent to sue, 60 and (probably) to bring it by
the method (arbitration or litigation) specified by the contract. 61 So a suit brought
contrary to an arbitration clause would not be competent. If the contract provides for
arbitration at the election of a party, a claim form is issued within that period, but
election is made outside the period, "suit" is brought as contemplated by the rules. 62 It
may be that a suit will be competent within the rule even though liability is not
ultimately decided on that suit. So there may be a stay on the ground of inappro priate
forum.63 In The Hahvelt,64 however, Saville J. held that a suit brought in England
contrary to a Norwegian jurisdiction clause was not a "suit" within the rules. No
consideration seems to have been given to any discretion not to uphold the clause.
11.19 In 1992 in The Jay Bola 65 Hobhouse J. held that once the time bar operates
no amendment of a writ issued within time will be permitted so as to add a defendant
not named as such within the one year period. Such a claim was not "related back" to
the original writ 66 and there is no "useful purpose" in the amendment when no
substantive cause of action exists. 67
11.20 The difficulties facing cargo owners in identifying carriers under the Hague -
Visby Rules pose a practical problem underlined by the need to act appropriately in
relation to the appropriate party within the limitation period. There is a danger of
bringing suit against the wrong defendant. However, any representation through act,
omission or word may lead to an estoppel and a defendant may then be unable to deny
that he is the party to the bill of lading. 68
(ii) Carriage of Passengers and Luggage The Athens Convention 1974
11.21 Any action for damages arising out of the death of or personal injury to a
passenger or loss of or damage to luggage must be brought under the provisions of the
Convention. Any action is to be time barred after a period of two years. The period
starts from disembarkation or when disembarkation should have ta ken place.69
11.22 Within an outside limit of three years of disembarkation or intended
disembarkation periods may be suspended or interrupted according to the law of the
forum. The periods may be extended by a written declaration of the carrier or agreeme nt
of the parties.70
"Collision" claims
11.23 The Merchant Shipping Act 1995, section 190 provides:
"(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 fau lt 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."
This section replaces the Maritime Conventions Act 1911, section 8 insofar as that
section applied to claims based on the fault of another ship. Although drafted differently
(and more clearly) the substance remains the same. 71 Authorities construing section 8
therefore remain relevant.
11.24 The provision applies only to claims against the vessel other than that in
connection with which the damage or loss occurred, or a sister ship 72 of that vessel.
Claims in respect of the carrying vessel are subject only to the general pattern of time
bar rules. 73 Despite the reference to arrest in the proviso the discretion to extend
applies to claims in personam as well as actions in rem.74 For the purpose of this
section "proceedings are brought" by the issue of a claim form. 75 As a result, a plaintiff
may ensure that proceedings are brought in time even if he has no opportunity to arrest.
However, the statute directs an extension if there has been no opportunity to arrest.
11.25 Principles applicable to extension of time under the Act were said to be
similar to those applicable generally to renewal of a writ. 76 Prior to the Civil Procedure
Rules the practice regarding the discretion to extend the time operated in the normal
English framework concerning judicial discretion —that an appellate court will interfere
with the exercise by a first instance judge only on proof of the application of a wrong
principle. 77 Even if there had been an opportunity to arrest, a court could extend the
period on the basis that there were no reasonable grounds for earlier issue of the writ. 78
11.26 There is no reason to suppose that the advent of the Civil Procedure Rules
will result in any divergence from principles generally applicable under the rules. So
any difference in the scope of discretion to extend time for service of a claim form, 79
any relevance of the power of dispensation or alternative me thod of service, (see
Chapter 9) or reluctance of an appellate court to interfere with discretion of a first
instance judge should be reflected in the approach to extensions of time for bringing
"collision" proceedings.
Salvage claims—the Merchant Shipping Act 1995, Schedule 11
11.27 Article 23 of the Salvage Convention enacted by and set out in Schedule 11
reads:
"1. Any action relating to payment under this Convention shall be time -barred if
judicial or arbitral proceedings have not been instituted within a period of two years.
The limitation period commences on the day on which the salvage operations are
terminated.
2. The person against whom a claim is made may at any time during the running of
the limitation period extend that period by a declaration to the claimant. This period
may in the like manner be further extended.
3. An action for indemnity by a person liable may be instituted even after the
expiration of the limitation period provided for in the preceding par agraphs, if brought
within the time allowed by the law of the State where proceedings are instituted."
This provision replaces the 1911 Act insofar as it applies to salvage claims. In
contrast to the earlier Act and the provisio ns of the 1995 Act applicable to collision
claims extension of the period is expressly by agreement. There is no power in the court
to extend the period. (ii) The general pattern —the Limitation Act 1980
11.28 Subject to periods of limitation linked to part icular claims80 there are three
basic limitation periods (three, six and 12 years) each attached to differing categories of
actions. They are applied to arbitral proceedings as they apply to legal proceedings. 81
Focusing on those most relevant to maritime claims,82 the following periods apply:
Three-year period. Actions in respect of personal injury occasioned by
negligence, nuisance or breach of duty and actions under the Fatal Accidents Act 1976
by dependants of a deceased whose death was caused by a wron gful act and who
would, if he had not died, have been entitled to recover damages. 83
Six-year period. Actions in respect of tort, simple contracts (excluding some loan
contracts), judgments (including interest on judgments), arbitration awards (where the
arbitration agreement is not under seal), some conversions of chattels, sums recoverable
under statute.84
Twelve-year period. Actions (including actions on arbitration awards) based on a
document under seal, to recover the principal sum secured by a mortgag e, charge or
lien, by way of foreclosure in respect of mortgaged personal property and to enforce a
claim to the personal estate of a deceased. 85
11.29 The periods are all subject to extension on the grounds of disability, fraud,
concealment, acknowledgmen t and mistake, 86 the period in respect of fraud,
concealment or mistake running from the date on which the claimant discovered it or
could with reasonable diligence have discovered it. 87 Concealment includes that of a
deliberate breach of duty unlikely to be discovered for some time, or active steps taken
to conceal such a breach having become aware of it, but does not include a negligent
breach of which the actor was unaware. 88 Subject to the extensions permitted, the cause
of action will accrue on the event founding the claim —the suffering of the damage, the
debt becoming due or the judgment or award. On a change in the law by judicial
decision recognising a cause of action where it was previously not recognised and the
commencement date is the date of discovery, the period will run from the date of
judgment.89
11.30 If it thinks it equitable a court may in its discretion exclude the operation of
the statutory provision from a cause of action based on personal injury or death .90 In
exercising its discretion to exclude, the court is directed to have regard to the degree of
prejudice imposed on either party through application or non -application of the time bar
and to all the circumstances of the case including (as specified) de lay and conduct of the
claimant and defendant and disability of the plaintiff. After considerable judicial debate
it was held by the House of Lords that the discretion is unfettered, 91 but if a plaintiff has
issued a claim form within the limitation period and fails to proceed with the action the
discretion cannot operate to allow a second claim form involving the same defendant
and the same cause of action. In those circumstances the claimant has not been
prejudiced by the operation of the time bar but by the failure of the first action. 92
11.31 Many of the time limits are excluded as such from any claim for specific
performance, injunction or other equitable jurisdiction not to allow the action to
proceed but may be applied by analogy. 93 The Act does not affect the equitable
jurisdiction to refuse relief on the ground of acquiescence or laches. 94 New claims in
pending actions95
11.32 New claims include new claims added or substituted, new parties added or
substituted and third party proceedings. 96 New claims made in the course of
proceedings are deemed to have commenced when those proceedings commenced. 97 By
the Limitation Act 1980, section 35 any new claim 98 after the expiry of any time limit
under the Act which would affect a new action is prohibited save (i) a claim made by
way of set off or counterclaim by a person who has not previously made any claim in
the action;99 (ii) as provided by section 33 of the Act; 100 (iii) as provided by rules of
court and comply with specified statutory conditions. These conditions are that the "new
claim" —
(i) arises substantially out of the same facts as the existing one; 101 or is
(ii) the substitution of a party for one named by mistake or a claim which "cannot
be maintained by or against an existing party unless the new party is joined or
substituted". 102
By the Civil Procedure Rules, it is provided in respect of any statutory provision
that an amendment may be allowed to correct the name of a party, if the mistake was
genuine and did not cause reasonable doubt about the identity of the party in question 103
or to recognise suit in a new capacity —held when the proceedings started or has si nce
acquired. 104
It is further provided that for a party to be added or substituted after expiry of the
limitation period either:
(i) the action must be based on personal injury or death and the court exercises its
statutory discretion to extend the period in respect of the new party; or
(ii) the proceedings were commenced within the limitation period and "it is
necessary for the determination of the action that the new party should be added or
substituted".105
In relation to the addition or substitution of a party the requirement of "necessary"
is limited in three situations:
(a) where there was a mistake in the original name;
(b) the claim cannot properly be carried on by or against the original party unles s
the new party is added or substituted; or
(c) the original party has died or become bankrupt and his interest or liability has
passed to the new party. 106
11.33 The provision in the statute that any new claim is deemed to commence at the
same date as the original action applies the theory of "relation back". In regard to new
claims the principle is specifically applied through this provision but may also apply to
justify action after expiry of the limitation period in regard to amendment other than
those in relation to new claims; 107 it cannot apply to the substitution of a party where a
time bar has removed the substantive cause of action. 108 Where therefore an action is
subject to the Hague-Visby Rules an amendment adding a party will operate as from the
date of the amendment. There can be no amendment if at that date the time limit under
the Rules has expired.
11.34 This approach raises a problem of the scope of the Civil Procedure Rules
(17.4, 19.4) concerning amendments to the statement of case so as to create a new claim
and the addition or substitution of parties after the expiry of a limitation period. In part
the Rules reflect the Limitation Act 1980, section 35 and in part are wider. There
remains some overlap in substance between the t wo rules and the lack of specific
provision of "relation back" in connection with a statutory time bar renders uncertain the
effect of the CPR in such a context. If, as is recognised by the CPR, a new defendant
becomes a party only on service of the amende d claim form 109 and the time bar is
substantive it is difficult to appreciate now that bar can be avoided save by relation
back.
11.35 Where the Limitation Act applies so as to relate back an amendment to the
original form the claim is time barred only if at the date of joinder the original
proceedings are time barred as it is deemed to have been made at the date the original
proceedings were made. On this principle any refusal to amend to add or substitute a
defendant has to be on the basis that the defend ant would be deprived of the right to
plead the statute. In The Kyriaki110 an amendment allowing service of a writ on a "new"
defendant outside the limitation period of the original claim was declared bad since it
was only then that the defendant was joine d. The adding of a ship (or other property) to
a claim is not, it is suggested, adding a new defendant. It is however, rendering the
defendant liable "in rem" in respect of an asset to which he would not have been liable
without the amendment, and therefore it would seem adding a new cause of action.
Principles outside the Limitation Act (i) Application by analogy
11.36 The time limits imposed by the Limitation Act 1980 applicable to tort,
contract, enforcement of awards or judgment, statutory recovery of sums and actions on
a specialty are excluded from claims for specific performance, injunctions or other
equitable relief. But they are applied by the courts by analogy, 111 and it is perhaps a
comment on the English regard for history that they have not been brought into the
limitation fold. A century of joint administration of law and equity could be thought
perhaps to lead to a unity of principles applied as such and the same principles applied
by analogy. But the retention of the distinction does retain the flexibility of not having to
apply the time limit in regard to some of the more powerful remedies. (ii) Delay —
laches
11.37 The equitable doctrine of laches operates only where no statutory provision
applied directly or by analogy.112 It follows that whereas before the general framework
applicable to limitation of actions applied to Admiralty actions (i.e. before 1 August
1980) laches formed an essential strand of the Admiralty fabric, it now takes its place
as ancillary to that fabric. Insofar as claims to which the fabric now applies are
concerned it is unlikely to operate. But it may continue to do so in respect of arrest as a
remedy assisting the claim (see Chapter 15). More fundamentally, it may continue to
affect the enforceability of a maritime lien as against third parties, 113 even though the
claim on which the lien is based remains extant. The enforceability against third parties
has always required "reasonable diligence" in its prosecution. 114 The delay must be
inordinate or prejudicial to the defendant. Whether " delay" is more likely to defeat a
maritime lien in a third party than a two -party context seems uncertain. In The Alletta115a
10-year delay was not sufficient to provide a defence to purchasers in the light of
provision for an indemnity from the vendors.
11.38 The concept of laches is often focused more on the availability of a
particular remedy (e.g. specific performance or injunction). There are hints that more
than delay and lapse of time are required for its establishment and that there is some
overlap with acquiescence and estoppel. In 1974 the Privy Council saw the principl e as
either a waiver of the remedy or putting the defendant in a position in which it would
not be reasonable if the remedy were asserted. It was said in these contexts "lapse of
time and delay are most material". 116 While it may be that sheer inactivity w ould be
enough,117 the central issue (as with estoppel and acquiescence) is the broad question
whether it is unconscionable that the party concerned be permitted to assert a beneficial
right.118 3. Delay in Service of Claim Form
11.39 The periods within which a claim form must be served and general
principles of extension are discussed in respect of a writ in personam in Chapter 9 and
in respect of a writ in rem in Chapter 10. 4. Delay in Complying with Procedural
Requirements
11.40 Under the Civil Procedure Rules, as under the former Rules of the Supreme
Court, there are time limits for compliance with procedural requirements —the serving
of a claim form, filing an acknowledgment of service and subsequent procedur al steps
(see Chapters 9, 10). 119 Further time limits may be set as part of the case management.
In Biguzzi v. Rank Leisure plc120 Lord Woolf emphasised the importance of keeping any
time limits given the unqualified discretion of the court to strike out a statement of case
for failure so to do. 121 On the other hand there are a variety of other courses open as
sanctions, in particular sounding in costs or reduction or increase of interest on damages
and payment of a sum of money into court as security for any sum payable to the other
party.122 As indicated earlier in the chapter previous authorities relating to the exercise
of discretion may have little relevance. 123
11.41 The rules must be read subject to statutory provisions particularly the expiry
of any limitation periods (see supra). 5. Abuse of Process and Want of Prosecution
11.42 In addition to powers stemming from procedural requirements courts have an
inherent power to dismiss an action because the plaintiff or his advisers do not act with
reasonable dispatch. It is particularly in this area that pre CPR authorities have little
relevance. In 1977 in Birkett v. James124 the House of Lords limited the discretion in
approving principles on which its exercise should be based—
"The power should be exercised only where the court is satisfied either (1) that the
default has been intentional and contumelious, e.g., disobedience to a peremptory order
of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that
there has been inordinate and inexcusable delay on the part of the plaintiff or his
lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible
to have a fair trial of the issues in the action or is such as is likely to cause or to have
caused serious prejudice to the defendant either as between themselves and the plaintiff
or between each other or between them and a third party." 125
A further relevant factor was that where the limitation perio d has not expired when
an action was dismissed for want of prosecution the plaintiff could simply issue a fresh
writ. 126
11.43 These principles were elaborated and to some extent modified in later cases
in order to retain some flexibility. So in 1992 it w as said in the Court of Appeal that
save in exceptional circumstances "it can rarely be appropriate” to deny a plaintiff an
extension to keep the action on foot because of a procedural default causing a defendant
no prejudice for which costs will not compe nsate.127 On the other hand in 1997 the
House of Lords held that the court had an inherent jurisdiction to strike out as abuse of
process whether or not the requirements of want of prosecution were satisfied. 128
Anticipating the CPR the House recommended t hat without waiting for "inordinate
delay" defendants apply for "unless orders" thereby placing the onus on a claimant in
justifying a claim to continue. In 1998 the Court of Appeal again stressed that
inexcusable delays could amount to an abuse of process , and warned that any delay
would be assessed not only from the point of view of the parties but of the effect on
other litigants seeking to have their case heard.
11.44 In Biguzzi v. Rank Leisure Plc 129 Lord Woolf M.R. commented that "the
courts have learnt ... that the ability of the courts to control delay was unduly restricted
by such decisions as Birkett v. James" —and concluded that where CPR apply "earlier
decisions are no longer generally of any relevance". So th e approach is to recognise the
wide general discretion under the Rules in the light of the courses available. 130
11.45 But as is to be expected guidance is emerging. So in the Court of Appeal
thought a change in culture had led to a change of approach. So where an action is struck
out for inordinate delay it was now not only in exceptional circumstances that a further
action within the limitation period would be struck out as abuse of process. On the
contrary a "special reason" must be advanced to allow a second action to proceed. 131
The CPR regime is specifically intended to prevent delay but without the technicality
and rigidity of the former rules. Statutory limitation provisions remain and the CPR
framework provides for active progress of a case without the need for draconian
consequences and the qualifications that ensue because of them.
11.46 The failure to prosecute a suit commenced within the Hague -Visby Rules
may have the consequence that the suit is not "brought" within the one year period. The
purpose of the provision is to bring suits promptly. A suit initiated within the year may
suffice to comply with the requirement even though it is later stayed ( see supra).
Nevertheless, in The Finnrose132 proceedings conducted in breach of the timetable set
by English civil procedure were not "brought" within the Rules. It was said that this is
no different from the disqualification of a suit on the grounds of a foreign forum clause
or no title to sue (as to which see supra). And indeed once admit a suit may not be
"brought" because the exercise of jurisdiction may be challenged ( see supra) it is a
short step to apply the principle to "want of prosecution". It is, however, a step. It
extends the ground of disqualification from one which was in existence at the inception
of the proceedings. It reads "brought" as referring to continuing rather than instituting
proceedings. 6. Delay in Assertion of the Remedy
11.47 As has been said, apart from the statutory rules regarding commencement of
suit, the principle of delay as a ground for barring a claim is focused on equitable
remedies, in particular injunction and specific performance. In this context the principle
would require timely action on the order as well as in seeking it. Judgment on Order
on the Merits
11.48 The Limitation Amendment Act 1980 reduced the period within which an
action on a judgment may be brought from 12 to six years. 133 The limitation period does
not apply to the execution of a judgment but interest on a judgment is by section 24(2)
limited to six years from the judgment. 134 Provisional Remedies
11.49 Delay will defeat a plaintiff’s ability to obtain an interim injunction just as it
will a perpetual injunction and undoubtedly the availability of a freezing injunction is
dependent upon reasonable haste. Indeed, the need is based on call for speed.
11.50 On the other hand, wherever in rem proceedings remain available arrest
must also remain available. The longevity of a maritime lien as such is established 135
but that of the statutory lien appears restricted because of its basis on the issue of a
claim form. Both are subject to the continued existence of the claim on which the
particular lien is based.
1. Contractual provisions should be clear, their effect being the extent to which
statute permits the parties to control time limits. For construction of a contractual
provision confusing arbitration and litigation see Indian Oil Corporation v. Vanol
[1992] 2 Lloyd’s Rep. 563 (C.A.). As to problems of construction arising from
incorporation of the Hague Rules into a charterparty and inconsistent terms see e.g.
Finagra (UK) Ltd v. OT Africa Line Ltd [1998] 2 Lloyd’s Rep. 622 and incorporation
generally see Ocean Chemical Transport Inc. v. Exnor Craggs Ltd [2000] 1 Lloyd’s
Rep. 446.
2. Biguzzi v. Rank Leisure Inc. [1999] 4 All E.R. 934 (C.A.) per Lord Woolf M.R.
3. See e.g. (want of prosecution) Grovit v. Doctor [1997] 2 All E.R. 417 (H.L.);
Arbuthnot v. Trafalgar Holdings Ltd [1998] 2 All E.R. 181; (laches) Frawley v. Neill,
(1999) The Times, 5 April.
4. 3.4(c).
5. For a summary of key features of case management in the Admiralty and
Commercial Court see Court Guide D1 –19. As to the general power of management see
CPR 3.1.
6. See Practice Direction—Protocols, para. 2 (cited in the Biguzzi case).
7. Biguzzi v. Rank Leisure Inc. (fn. 1) at p. 941 (concerned with the court’s
discretionary powers). Where the case straddles the pre and post CPR regimes, the
principles of the CPR are to be applied taking into account that earlier actions had been
under the former regime (ibid.); The Hai Hing [2000] 1 Lloyd’s Rep. 300.
8. Apart from rules having their root in Convention (e.g. the Hague -Visby Rules)
the exceptions concern title to chattels and land (see Limitation Act 1980, ss.3, 17 and
25).
9. See Chapter 26.
10.See e.g. Part 16 PD 13.1.
11.See ibid. The Merchant Shipping Act 1995, s.190 (re-enacting the Maritime
Conventions Act 1911, s.8) applicable to collision claims is a statute of limitation
which must be pleaded (see The Llandovery Castle [1920] P. 119); but the passing of
time under the Hague or Hague -Visby Rules extinguishes the claim (see The Aries
[1977] 1 Lloyd’s Rep. 334); and presumably the claim cannot be resurrected by failure
to plead. It would appear as if the provision of the Salvage Convention 1989 ( see infra)
is procedural and therefore should be pleaded.
12.See generally CPR 2.11—requiring a written agreement and infra. There may
be an express agreement to extend the period of limitation (see e.g. The Clifford Maersk
[1982] 2 Lloyd’s Rep. 251) or where permitted a framework of rules alternative to that
containing the time bar (see e.g. The Strathnewton [1983] 1 Lloyd’s Rep. 219—the
effect of submission to Inter Club NYPE Agreement and incorporation of the Hague
Rules in the same charterparty).
13.See e.g. The Ion [1980] 2 Lloyd’s Rep. 245 (letter held to be represen tation
that there would be no reliance on time bar); The Henrik Sif [1982] 1 Lloyd’s Rep. 456
(defendant not sued estopped from denying that he was a party to the bill of lading); The
August Leonhardt [1984] 1 Lloyd’s Rep. 322 (parties assuming that a condition on
which an extension was granted would be satisfied); The Stolt Loyalty [1995] 1 Lloyd’s
Rep. 598 (C.A.) (P. & I. club acting for owners and demise charterers granting
extension on behalf of "owners" — demise charterers estopped from denying extension
not granted by them). For an analysis of different kinds of estoppel, see The Henrik Sif
and The August Leonhardt. As to estoppel and want of prosecution see infra.
14. So a solicitor must take care not to leave matters to the last moment. See e.g.
(service of a writ) The Vrontados [1982] 2 Lloyd’s Rep. 241; The Vita [1990] 1
Lloyd’s Rep. 528; The Mouana [1991] 2 Lloyd’s Rep. 441; (issue of writ) The Al
Tabith [1995] 2 Lloyd’s Rep. 336, nor should it be assumed that settlement negotiations
prevent time running for limitation purposes (see e.g. The Mouana (supra), The "Zhi
Jiang Kou" [1991] LMLN 300 C.A. NSW). An application for stay of proceedings
should be made at the outset of proceedings before costs are incurred ( Mansour v.
Mansour, The Times, 2 January 1989). See further Chapter 9 for discussion as to the
use of dispensation of service and alternative method of service to overcome delay.
15. Where a rule, practice direction or court order requires an act within a
specified time and specifies the consequences of failure to comply the time may not be
varied by agreement of the parties (CPR 3.8(3)). Unless provided otherwise the court
may extend or reduce such a time limit (3.1(2)(a)).
16. See e.g. National Bank of Greece and Athens SA v. Metliss [1958] A.C. 509.
17. The Act applies to all proceedings (including arbitration) commenced on or
after 1 October 1985 so long as the limitation period under English la w had not by then
expired (s.7). The application of the Act may be relevant to the discretion to give leave
to serve a writ out of the jurisdiction. See Société Commerciale de Reassurance v.
Eras International Ltd [1992] 1 Lloyd’s Rep. 570 (C.A.).
18. Section 1. The provision is not limited to statutory or fixed periods. It applies
whether the limitation period is certain or uncertain, and any question of leaving a claim
enforceable in perpetuity is to be considered in the context of undue hardship Dubai
Bank Ltd v. Abbas [1998] I.L.Pr. 391 (David Steel J.). As to undue hardship see text
and fn. 19. English law continues to decide the time at which proceedings have been
commenced and the Limitation Act 1980, s.35 (relating to new claims in pending
proceedings) applies—as to which see infra.
19. Section 2. Any power to extend or interrupt the period under foreign law is to
be disregarded in considering “undue hardship” (s.2(3)). It was undue hardship where
a defendant assured a plaintiff that insurers were dealing with a claim for compensation
for personal injury (Jones v. Trollope Colls Ltd, The Times, 26 January 1990) or an
extension granted for issue of writ was good by English law but not by foreign law (see
The Komninos S [1991] 1 Lloyd’s Rep. 370).
20. Arab Monetary Fund v. Hashim (No. 9) [1993] 1 Lloyd’s Rep. 543 applying
Jones v. Trollope Colls (fn. 12).
21. See ibid.
22. Baghaf Al Safer Factory Co. BR for Industry Ltd v. Pakistan National
Shipping Co. [1998] 2 Lloyd’s Rep. 229.
23. The approach is close to that of Sheen J. in The Blue Wave [1982] 1 Lloyd’s
Rep. 151 (preferring (b) unless the allowing of the period to lapse was unreasonable)
with perhaps a heavier onus being placed on the claimant. See also The Pioneer
Container [1994] 1 Lloyd’s Rep. 593 (P.C.); The Adoph Warski [1976] 2 Lloyd’s Rep.
241 (C.A.); [1976] 1 Lloyd’s Rep. 107 (Brandon J.). For an example of claimants
failing to show reasonableness in not protecting their position see The Bergen (No. 2)
[1997] 2 Lloyd’s Rep. 110.
24. Ibid. (No. 2) [2000] 1 Lloyd’s Rep. 1. A further unclear point was the
startpoint of the limitation period in the relevant foreign country (Pakistan) —the stay
was lifted, a factor being the relative small value of the claim. A distinction was drawn
between a possibly discretionary imposition of a limitation period, as to which see
BMG Trading Ltd v. AS McKay Ltd, October 1997 (C.A.).
25. The MC Pearl [1997] 1 Lloyd’s Rep. 566.
26. Because of multiplicity of parties there was such a cause. See also Citi March
Ltd v. Neptune Orient Lines Ltd [1997] 1 Lloyd’s Rep. 72 in which Colman J. seemed
to apply a test of "appropriateness" —with which Rix J. disagreed.
27. See e.g. Continental Bank NA v. Aeakos Companie Naviera SA [1994] 1
Lloyd’s Rep. 505 (C.A.) and Chapters 12, 25. For a United States view that the criterion
is not unreasonableness of the agreement in the light of the fail ure to start proceedings
see Union Steel America Co. v. M/r Sanko Spruce [1999] A.M.C. 344.
28. Phillips L.J. delivering the leading judgment applied Lord Goff’s approach in
The Spiliada (see infra) but did not allude to the statement by Lord Goff in the Pioneer
Container (fn. 23) that it would not be reasonable to let time run out in the agreed
jurisdiction without issuing a protective writ —but the focus on strong cause is surely to
be preferred.
30. A point made by Rix J. in The MC Pearl (fn. 25).
31. See The Spiliada [1987] A.C. 460; [1987] 1 Lloyd’s Rep. 1.
32. See The Pestrioka [2003] 2 Lloyd’s Rep. 327 (C.A. —obiter).
33. The period depending on whether the damage is apparent.
34. See Carriage of Goods by Sea Act 1971, Sch. Art. III(6); Carriage of Goods by
Road Act 1965, Sch. Art. 30. (As to the application of the CMR to maritime claims, see
fn. 47 infra). Whether this increases the onus or standard of proof is debatable.
35. Merchant Shipping Act 1979, Sch. 3, Art. 15 as from 1 January 1996 the
Merchant Shipping Act 1995, Sch. 6, Art. 15 (no notice need be given if there is joint
inspection or survey at the time of receipt (Art. 15(3)). Whether this increases the onus
or standard of proof otherwise applicable is debatable.
36. CIM (International Convention concerning Carriage of Goods by Rail) 1961,
Art. 46; CIV (International Convention concerning Carriage of Passengers and Luggage
by Rail) 1961, Art. 46 (provision in respect of claims enacted into English law through
Carriage by Railway Act 1972, s.6). See also Additional Convention (set out in
Schedule to that Act) Art. 16. See now International Transport Conventions Act 1983
introducing into English law the International Carriage by Rail Convention 1980
(COTIF).
37. Carriage by Air Act 1961, Sch. Art. 46. See also Carriage by Air and Road
Act 1979, Sch. 1, Art. 26 (not yet in force).
38. Combined transport creates problems not only because of the application of
unimodal transport Convention to each appropriate stage and (possibly) the combined
transport contract, but also in the context of delay of claims b ecause of the difficulties of
the combined transport operator complying with any notice period applicable to the
unimodal transport contract—which may be shorter than that applicable to the combined
transport contract (see e.g. Combidoc Clause 13).
39. As to commencement of arbitral proceedings, see Arbitration Act 1996, s.14
and Chapter 13.
40. (As amended particularly by the addition of SS.14A, 14B by the Latent
Damage Act 1986.) With the exception of s.35 the Limitation Act does not affect any
action or arbitration commenced before 1 August 1980. As to s.35 (which deals with the
institution of new claims in proceedings already commenced either by the introduction
of a new cause of action, a new party or the institution of third party proceedings) the
date is 1 May 1981. As to s.35, see p. 275.
41. Sections 13, 14, the Act repealing and updating in substance the Limitation Act
1980, s.24. As to limitation and arbitration, see Chapter 13.
42. It is only since 1 August 1980 that the general time bars (i.e. limitation of
actions) have applied with full force to Admiralty actions. Since that date the pattern
applies to all Admiralty causes of action, whether arising prior to or after the date,
provided no action in respect of an exempted claim had been commenced by that date
(ss. 12, 14). See Limitation Amendment Act 1980, s.9. As to the meaning of the
provision in the Limitation Act 1939 excluding "any cause of action within the
Admiralty jurisdiction of the High Court which is enforceable in rem", see The Matija
Gubec [1981] 1 Lloyd's Rep. 31.
43. So a cause of action on an average bond will accrue on the liability created by
the terms of the bond and not the general average act (see The Potoi Chau [1983] 2
Lloyd's Rep. 376).
44. The period in respect of action based on personal injury or death starts from
the occurrence or the knowledge (if later than the occurrence). (Limitation Act 1980,
ss.l 1 and 12.) As to the discretionary power to extend these periods, see ibid., s.33,
and infra. The Act does not apply to contract claims ( Société Commercial de
Réassurance v. ERAS (International Ltd) [1992] 3 All E.R. 82 (C.A.)). Other than an
action for personal injuries an action for negligence cannot be brought after 15 years
from the date of the act on what the claim is based (s.14B).
45. Ibid., s.39.
46. See also time limits imposed in respect of claims to wreck by Merchant
Shipping Act 1995, s.239(l), commencement of summary proceedings (s.274), order for
payment of money in summary proceedings (s.275).
47. Article 2(1) of the CMR applies to a contract for road carriage involving
piggy-back transport by another mode. Article 32 imposes a "period of limitation" of
one year subject to extension up to three years where there is (i) wilful misconduct; or
(ii) suspension of the period by written claim; or (iii) the law of the court seised of the
action so provides. Barred claims cannot be pursued by way of counterclaim or set off
(ibid.). As to the scope and interpretation of these provisions, see Worldwide Carriers
Ltd v. Ardtran International Ltd [1983] 1 Lloyd’s Rep. 61; ICI Fibres v. MAT
Transport [1987] 1 F.L.R. 145.
48. Section 190 re-enacting the Maritime Conventions Act 1911, s.8.
49. Section 224, Sch. 11 (the Salvage Convention 1989, Art. 23) re -enacting the
provisions of the Merchant Shipping (Salvage and Pollution) Act 1994 which had
repealed and replaced the Maritime Conventions Act 1911 as regards salvage claims
based on operations starting on or after 1 January 1995.
50. Sections 162, 178—applying to claims based on the Civil Liability Convention
1992 and the Fund Convention 1992, t he 1969 and 1971 Conventions enacted initially
into English law through the Merchant Shipping (Oil Pollution) Act 1971 (as to time
limits see s.9) and the Merchant Shipping Act 1974 (as to time limits see s.7) —no
action "shall be entertained" by a United K ingdom court later than three years after the
claim arose and not later than six years after the occurrence by reason of which liability
was incurred—but note that the Conventions provide that on the expiry of the periods
the claim shall be extinguished. It seems probable that the courts would construe them as
a substantive bar. As to oil pollution claims see Chapter 2.
51. Schedule 5A Art. 37 (inserted by Maritime and Shipping Security Act 1997,
s.14(1)) providing that the right to compensation against an owner or the HNS fund
"shall be extinguished" unless action is brought within three years of the date when the
claimant knew or ought reasonably to have known of the damage and (in the case of
liability of the owner) the identity of the owner and in any event within 10 years of the
damage occurring.
52. Section 183, Sch. 6. The Convention provides that "any action arising out of the
death or a personal injury to a passenger or for the loss of or damage to luggage shall be
time barred after a period of two years" unless extended by declaration of the carrier or
by agreement of the parties (Art. 16). The law of the court seised with the action
governs suspension of the period—but there is an outside total limit of three years from
disembarkation (ibid.). The provisions of the Convention were given the force of law in
a slightly modified form as from 1 January 1981 (SI 1980/1092), and came directly into
force as from 30 April 1987 (SI 1987/635). Under the 2002 Protocol (as to which see
Chapter 2) the period is 5 years from disembarkation or, if earlier, 3 years from the date
of reasonable knowledge of the injury loss or damage.
53. Sections 13, 14 as to which see Chapter 13.
54. Loss from inability to load will be within the limitation if there was a
sufficiently close relation to the cargo to be carried (as when specialist loading
equipment was assembled for a specific task) Linea Naviera Paramaconi SA v
Abnormal Load Engineering Ltd [2001] 1 Lloyd’s Rep. 763.
55. I.e. in respect of goods carried or to be carried on the ship and not every kind
of loss or damage. See e.g. The Marinor [1996] 1 Lloyd’s Rep. 301; The Stolt Sydness
[1997] 1 Lloyd’s Rep. 273; Finagra (UK) Ltd v. OT Africa Line Ltd [1998] 2 Lloyd’s
Rep. 622. Incorporation into a charterparty may apply the bar to other than "Rules"
claims: The Marinor (supra). See also The Seki Rollete [1998] 2 Lloyd’s Rep. 638.
56. I.e. delivery under the relevant contract of carriage and not under a separate
transaction Trafigura Beheer BV v. Golden Stavraetos Maritime Inc [2003] 2 Lloyd’s
Rep. 201 (C.A.).
57. Article III 6 bis does not depend for its applicability on the contract under
which the liability in respect of which the indemnity is claimed being under the Rules
(The Xingcheng and Andros [1987] 2 Lloyd’s Rep. 210 (P.C.) on appeal from Hong
Kong). The rule does not depend on national law having specific provision ( ibid.).
58. Where the Rules are applied by statute (as distinct from by agreement) there is
no power to extend time to begin arbitral proceedings as provided by statute, for the bar
is mandatory (The Antares [1987] 1 Lloyd’s Rep. 424). The duty to disclose any time
bar problem in an application for extension of time is therefore underlined (see The Hai
Hing [2000] 1 Lloyd’s Rep. 300 at p. 310). As to extension of time see Arbitration Act
1996, s.12 and Chapter 13.
59. [1977] 1 All E.R. 398. Lord Salmon preferred to lea ve for the future whether a
defence was precluded—so that in the instant case if by English law charterers could
deduct freight for short delivery by way of defence they could do so even if the "claim"
to deduct was made after one year.
60. See The Nordglimt [1988] 2 All E.R. 531 considering The Kapetan Markos
[1986] 1 Lloyd’s Rep. 211 (C.A.). The suit must be against the defendant (i.e. a suit
against one defendant will not open the door to a suit brought outside the period against
another defendant). See The Jay Bola [1992] 2 Lloyd’s Rep. 62; [1992] 3 All E.R. 329.
Similarly a suit brought by plaintiff without title to sue will not form the foundation for
an action outside by the period by a competent plaintiff: The Leni [1992] 2 Lloyd’s Rep.
48. On the other hand errors in the detail of a pleaded case could not of themselves have
the effect of rendering a suit not competent (see The Pionier [1995] 1 Lloyd’s Rep.
223); The Stolt Sydness [1997] 1 Lloyd’s Rep. 273 (so included (contrary to US law
and despite the incorporation of US COGSA) because of the agreement to arbitrate in
London under English law).
61. See The Merak [1965] 1 All E.R. 230. It has been held that a suit in tort
without referring to the contract of carriage is sufficien t. See Anglo Irish Beef
Processors International v. Federated Stevedores Geelong [1997] 1 Lloyd’s Rep. 207
(Victoria C.A.). See also Thyssen v. Calypso Shipping [2000] 2 Lloyd’s Rep. 243.
62. See The Amazona [1989] 2 Lloyd’s Rep. 130. Even if the time bar defence had
been available in the arbitration proceeding the clause providing for such an option is
not itself contrary to the Hague-Visby Rules—it did not relieve liability of the carrier
but provided only for a safe method of proceeding by a cargo claimant.
63. See The Nordglimt (supra)—leaving open the question of whether an action in
rem within the period could continue the liability so that an action in personam after the
expiry of period would not be out of time (as to the identity of these causes of action see
further Chapters 2, 10, 12).
64. [1993] 1 Lloyd’s Rep. 523. Saville J. refused to hold that the proceedings in
the foreign court were time barred in the absence of evidence of foreign law. Th e
approach as to the effect of the jurisdiction clause was also taken in The Finnrose
[1994] 1 Lloyd’s Rep. 559, Rix J. holding that a suit not prosecuted in accordance with
requirements of civil procedure did not prevent time running ( see infra).
65. [1992] 2 Lloyd’s Rep. 62; [1992] 3 All E.R. 329.
66. Following the acceptance by the House of Lords in Ketteman v. Hansel [1987]
A.C. 189 that a claim against an added defendant did not relate back to the original
issue see 19 PD 3.3 and 11.31.
67. The power to amend a writ even after a limitation period had to be construed
in the light of Ketteman—there being no purpose in amending because of the non -
relation back. Further the Limitation Act 1980 (providing for relation back) does not
apply (and RSC Ord. 20, r. 5 did not apply) to substantive time bars ( ibid.). The
decision of the Court of Appeal in The Puerto Acevedo [1978] 1 Lloyd’s Rep. 38
appears not to have survived the 1980 Act and its limitations on adding defendants (as
to which see infra). However, it appears that the limited powers of amendment and
addition or substitution of new parties under the CPR are intended to apply to all
statutory time limits (see 17.4, 19.4 and infra). If that is so it seems questionable
whether a civil procedure role can resurrect a time barred claim ( see infra).
68. See The Henrik Sif [1982] 1 Lloyd’s Rep. 456.
69. Art. 16.1, 2 or in the case of death after disembarkation from the date of death
provided that this period did not exceed three years (ibid.). Under the 2002 Protocol the
periods are five years from disembarkation or three years from the date when the
claimant knew or reasonably ought to have known of the injury, loss or damage.
70. The provisions of the Package Holidays and Package Tours Regulation 1992
(SI 1992/3288) (to which the time limits of the Limitation Act 1980 would apply)
permitting a contract to specify an international convention do not refer to time
limitation Norfolk v. My Travel Group Plc [2004] 1 Lloyd’s Rep. 106.
71. Save for subsection (6) the provision applies to Her Majesty’s ships as to any
other (s.192 replacing the Crown Proceedings Act 1947, s.30(1); Law Reform
(Limitation of Actions) Act 1954, s.5(1) and (2) (repealed as spent). As to arrest an d
actions in rem and the Crown see Chapter 12. A jet ski is not a vessel within the
Merchant Shipping Acts and a claim by a rider of a ski against the owner of a vessel for
damages for personal injury after collision is not within the Maritime Conventions Act
1911 (Steedman v. Schofield [1992] 2 Lloyd’s Rep. 163). But as to the definition of a
vessel for the purposes of the Arrest Convention and comments on the approach in
Steedman v. Schofield see The Von Rocks [1998] 2 Lloyd’s Rep. 198 (Irish Supreme
Ct) and Chapters 15 and 17.
72. See The Preveze [1973] 1 Lloyd’s Rep. 202. It applies to "fault in
management" and is not restricted to navigation fault (see The Norwhale [1975] 1
73. The Niceto de Larrinaga [1966] P. 180.
74. The Arraiz (1924) 19 Ll.L.Rep. 235.
75. See e.g. The World Harmony [1967] P. 341 (construing the 1911 Act phrase
"proceedings are commenced").
76. See The Owenbaren [1973] 1 Lloyd’s Rep. 56—a comparison still holding
good subsequent to the emphasis that the basis is "good reason" rather than "exceptional
reason" (The Myrto (No. 3) [1987] 2 Lloyd’s Rep. 1 (H.L.)—see infra). See The Zirje
[1989] 1 Lloyd’s Rep. 493; The Seaspeed America [1990] 1 Lloyd’s Rep. 150. As to
the exercise of the discretion, see e.g. The Albany [1983] 2 Lloyd’s Rep. 195. Good
reason was a prerequisite for discretion: The Al Tabith, fn. 14.
77. See e.g. The Almerck [1965] P. 357.
78. See The Arraiz (supra), fn. 69.
79. See Chapter 9. As to extension in favour of claimants against a limitation fund,
see The Disperser [1920] P. 228.
80. See supra. Actions to recover contribution between persons liable for the same
damage under the provision of the Civil Liability (Contributio n) Act 1978 must be
brought within two years of the accrual of the right to contribution. Limitation Act 1980,
s.10. Where the source of liability is a judgment or arbitration award the right accrues
on the date of the giving of the judgment or arbitration (s.10(3)), whereas it accrues on
the date of any agreement to pay compensation s.10(4). A consent order may often form
an agreement or be a judgment depending on the circumstances Knight v. Rochdale
Healthcare NHS Trust [2004] 1 W.L.R. 371.
81. See the Arbitration Act 1996, s.13(1) as to commencement of arbitral
proceedings and accrual of a cause of action ss.13(2)(3), 14. See generally Chapter 13.
82. Most actions concerning land attract a period of 12 years (Limitation Act 1980,
ss.15, 16 and 20); trust property (apart from trustees’ fraud or conversion) six years
(s.21). Actions for account attract the same period as that applicable to the claim which
is the basis of the duty to account (s.23).
83. Limitation Action 1980, ss.11, 12 and 13. The period may not start until the
plaintiff has knowledge of the injury and its cause (see ss.14, 14A, the latter being
inserted by the Latent Damage Act 1986). As to action under the Consumer Protection
Act 1987 see s.11A (inserted by s.6, Sch. 1 of the 1987 Act). The reference in s.11A to
"extinguishing" the cause of action does not mean that this is not a time limit which can
be extended—it is part of the structure of the 1980 Act ( see Horne-Roberts fn. 96).
84. Limitation Act 1980, ss.2, 3, 5, 7, 9. Arbitration Act 1996, s.13: "simple
contract" includes declaration of rights P and O Nedlloyd v. Arab Metals [2005]
EWHC 1276.
85. Limitation Act 1980, ss.8, 20 and 22, Arbitration Act 1996, s.13. An exception
in regard to ship mortgages was removed by the Limitation Amendment Act 1980,
s.9(2). An action to recover interest must normally be brought within six years.
86. Limitation Act 1980, ss.28–32. The concealment may be contemporaneous with
or subsequent to accrual of the cause of action: Sheldon v. Outhwaite [1995] 2 All E.R.
558 (H.L.). Written and signed acknowledgment of a claim or part payment in respect of
it creates a fresh accrual of the cause of action (ss.29, 30 and 31). It is doubtful that the
provision for extension geared to a "right of action" applies to the limitation on interest
on a judgment by way of execution. See Shapland v. Palmer (fn. 92).
87.Section 32(1).
88. Cave v. Robinson [2002] 2 All E.R. 641 (H.L.) (negligent drafting of an
agreement for moving rights).
89. Kleinwort Benson Ltd v. Lincoln City Council [1998] 4 All E.R. 513 (H.L.)—
declaring that money paid under a mistake of law is not irrecoverable for that reason
and (by a majority) that the declaratory theory of law makes recoverable a payment
thought irrecoverable when paid.
90.Limitation Act 1980, s.33.
91. Thompson v. Brown Construction (Ebbw Vale) Ltd [1981] 2 All E.R. 296.
92. Ibid., approving Walkley v. Precision Forgings Ltd [1979] 2 All E.R. 548;
Chappel v. Cooper [1980] 2 All E.R. 463 (C.A.); Shapland v. Palmer [1999] 1 W.L.R.
2068. In Deerness v. John R. Keeble & Son (Brantham) Ltd [1983] 2 Lloyd’s Rep. 260
it was stressed that the rule in Walkley did not admit of any exceptions, but left open the
possibility of a defendant being estopped from relying on the limitation period by
improper conduct. See also Forward v. Hendricks [1997] 1 All E.R. 397 (C.A.); Young
v. Western Power Distribution (South West) Plc [2003] EWCA Civ 1034. The Walkley
principle is not contrary to Art. 6 of the EHRC (the right of access to a court) limitation
periods not being inherently contrary to it.
93.Limitation Act 1980, s.36(1). The effect today is therefore likely to b e the same
as if the statute applied. See Companhia de Seguros Imperio v. Heath [2001] 1 W.L.R.
112.
94.Limitation Act 1980, s.36(2). As to laches and its relevance to maritime
claims, see infra.
95.Limitation Act 1980, s.35, replacing Limitation Amendment Act, s.8, the latter
of which does not appear to have come into force. Section 35 came into force on 1 May
1981 and applies to actions commenced on or after that date.
96.As to amendments of the statement of case see CPR Part 17, as to addition and
substitution of parties, CPR Part 19.
97.Limitation Act 1980, s.35(1).
98.A defendant who has a claim against a claimant may proceed by counterclaim
subject to the court’s discretion to make an appro priate order if it was of the view that it
should be disposed of by a separate claim. (CPR 3.1). If such an order is made the
"limitation" benefit of s.35 is lost. The discretion to require a separate action is
primarily to be exercised according to proced ural convenience with limitation
consequences a secondary consideration ( Ernst and Young v. Butte Mining Plc (No. 2)
[1997] 2 All E.R. 471).
99.A "claim" in this context means claim for relief and not simply a positive
averment in the defence (J.F.S. (UK) Ltd v. DWR CYMRU CYF [1999] 1 W.L.R. 231
(C.A.)).
100. Providing for discretionary exclusion of time limits for actions in respect of
personal injury or death.
101. An allegation of fraud where it had not previously been made is a new cause
of action, and a claim on the basis of fraud does not involve substantially the same facts
as a claim based on negligence (Paragon Finance Plc v. DB Thakerar and Co. [1999]
1 All E.R. 400).
102. Limitation Act 1980, s.35(1). An amendment may add a new cause of action
within (ii) even if the original claim disclosed no cause of action ( Sion v. Hampstead
Health Authority, The Times, 10 June 1994). The "mistake" in (ii) is not restricted to
the name but includes a mistake as to identity where the claimant always intended to sue
meeting "a particular description specific to the case" (e.g. the manufacturer of a
vaccine) see Horne Roberts v. SmithKline Beecham Plc [2002] 1 W.L.R. 1662—which
seems a fairly large extension.
103. See e.g. The Anna L [1994] 2 Lloyd’s Rep. 374.
104. C P R 1 7 . 4 .
105. C P R 1 9 . 4 .
106. Limitation Act, s.35(6), CPR 19.4(2)(3). Under RSC Ord. 15, r. 6(7) a person
may be made a party where "at any stage in the proceedings" the interest or liability of a
party is assigned or transmitted or devolves on that person. By its wording and nature
the power exists irrespective of the passing of any limitation period. So on the merger
of a company with another in a corporate restructuring that other could be made a party
(Industrie Chimiche Italia Centrale v. Tsavliris and Sons Maritime Co. [1995] 2
Lloyd’s Rep. 608 (disagreeing with Toprak v. Sale Tilney Technology Plc [1994] 3 All
E.R. 483)). This rule does not appear in the CPR either in Part 19 or the retained pa rt of
RSC Ord. 15, Sch. 1 and the permitted substitution on grounds of transfer of interest or
liability is clearly within the scope of the limitation provisions and confined to death or
bankruptcy. Presumably the merger may be dealt with under (b).
107. As to which see CPR 17.2, 17.3, The Jay Bola [1992] 2 Lloyd’s Rep. 62;
[1992] 3 All E.R. 329 applying the reasoning of Brandon L.J. in Liffv. Peasley [1980] 1
All E.R. 623 approved by the House of Lords in Ketteman v. Hansel [1987] A.C. 189.
108. The Jay Bola (fn. 107) disagreeing with The Joanna Borchard [1988] 2
Lloyd’s Rep. 274.
109. See 19 PD 3.3 adopting the approach to the House of Lords in Ketteman v.
Hansel [1987] A.C. 189 (see supra).
110. [1993] 1 Lloyd’s Rep. 137 —approved Welsh Development Agency v.
Redpath Dorman Long (C.A.) (1994) The Times, 4 April.
111. Limitation Act 1980, s.36(1). So equitable claims broadly analogous to
claims available at common law are subject to the same statutory limitation periods
even if the equitable claim carries a wider range of remedies ( Coulthard v. Disco Mix
Club [2000] 1 W.L.R. 707).
112. See Re Paulings Settlement Trusts [1963] 3 All E.R. 1.
114. See The Bold Buccleugh (1851) 7 Moo. P.C. 267 applied in (e.g.) The
Europa (1863) 2 Moo. N.S. 1; The Fairport (1882) 8 P.D. 48. See also The Kong
Magnus [1891] P. 223; The Alletta [1974] 1 Lloyd’s Rep. 40.
115. [1974] 1 Lloyd’s Rep. 40. Compare the period of one year specified in the
Convention Relating to Maritime Liens and Mortgages 1993, Art. 9 (not in force). As to
the Convention see Chapter 17.
116. Lindsay Petroleum v. Hurd (1874) L.R. 5 P.C. 221, at p. 240.
117. See e.g. Joyce v. Joyce [1979] 1 All E.R. 175. Delay in pursuing an action
may lead to refusal to renew a freezing injunction granted in respect of the action (see
Lloyds Bowmaker Ltd v. Britannia Arrow Holdings [1988] 3 All E.R. 178) and
Chapter 16.
118. See Frawley v. Neill, (1999) The Times, 5 April (C.A.).
119. Time limits and the procedure for making applications for court orders and the
setting aside of such an order following an application made without notice are
contained in CPR Part 23 as modified by the Admiralty a nd Commercial Courts Guide
Section F. These general rules are subject to rules relating to specific steps either
express or implied. So an application to discharge an order giving permission to serve
out of the jurisdiction is governed by the time limits r elating to disputing the jurisdiction
(CPR Part 11) (The Hai Hing [2000] 1 Lloyd’s Rep. 300).
120. [1999] 4 All E.R. 934 (C.A.) see supra.
121. C P R 3 . 4 .
122. CPR 3.3, 3.5, 3.6A and e.g. Practice Direction Protocols Paras 2, 3. As to
security for costs see Chapter14.
123. See Biguzzi v. Rank Leisure Plc at p. 941.
124. [1978] A.C. 297.
125. At p. 318.
126. Further factors were that the delay must relate to the period after service of
the writ and that any available action by the plaintiff against his solicitors was
irrelevant but as to the latter see Thompson v. Brown Construction [1981] 2 All E.R.
296 (H.L.). As to the present approach see 11.45.
127. Costellow v. Somerset County Council [1993] 1 All E.R. 952.
128. Grovit v. Doctor [1997] 2 All E.R. 417. There is in the CPR a general power
to strike out a statement of case for abuse of process (3.4(2)(b)).
129. [1999] 4 All E.R. 934.
130. No doubt principles of estoppel will remain relevant —as to which see
Roebuck v. Mungovin [1994] 1 All E.R. 568.
131. See Securum Finance Ltd v. Ashton [2001] Ch. 291 (C.A.).
132. [1994] 1 Lloyd’s Rep. 559.
133. See no Limitation Act 1980, s.24. Arrears of interest are recoverable within
six years of the interest becoming due (s.24(2)). Leav e to enforce a judgment will not be
given when the right of action on a judgment is barred. Laugher v. Donovon [1948] 2
All E.R. 11. See also Lamb and Sons v. Rider [1948] 2 All E.R. 402. While an action
will lie on a judgment establishing a debt a plaintiff must enforce it by execution if
possible.
134. Lowsley v. Forbes [1998] 3 All E.R. 897. A judgment may not be executed
after six years without the permission of the Court (RSC Ord. 46, r. 2).
Chapter 12
Restrictions on Jurisdiction
12.1 A restriction on jurisdiction as discussed in this chapter reflects the
prohibition on bringing suit even though there is compliance with any general or
specific jurisdiction base and the service of a claim form. The prohibition may go to the
creation of jurisdiction in providing a further jurisdiction requirement, or it may go to
the exercise of established jurisdiction. The distinction is probably of little practical
significance save where the suit is at the court’s discretion and weight is given to the
existence of jurisdiction apart from the discretion. The rules differ according to whether
the substantive regimes of the EC Regulation 44/200 1 or the Brussels or Lugano
Convention apply.
12.2 An English court, as any national court untrammelled by any system of which
it is part or agreement has the power to decide its own jurisdiction. That in evitably
changes once the state becomes part of a system an element of which is allocation of
jurisdiction. Under the Community regime that allocation imposes an obligation to take
or decline jurisdiction. So the primary rule is that, subject to exceptions , jurisdiction is
linked to the defendant’s domicile. A critical issue is therefore whether a case falls
within the regime, in the sense that (a) the issue is within its scope, and (b) the required
link between Member State and issue is present. 1. Regulation 44/2001, Brussels and
Lugano Conventions
12.3 The approach of the English courts has been to maintain the untrammelled
jurisdiction powers unless these are restricted by the regime. In particular they have
construed the Brussels Convention—
(i) as regards initial jurisdiction as only affecting an issue connected with a non -
contracting State if specifically provided for in the Convention.
(ii)in respect of multiple proceedings
(a) as not preventing the use of the anti suit injunction in resp ect of foreign
proceedings in respect of contracting and non -contracting States
(b) despite Convention provisions for allocation of jurisdiction between
contracting States maintaining power to (i) assert jurisdiction contrary to those
provisions if there is an English exclusive jurisdiction clause, or (ii) decline
jurisdiction on the basis of forum non conveniens where the English initial jurisdiction
is not based on a Convention provision.
12.4 All three of these approaches has now been declared to be contrary to the
Brussels Convention and hence the EC Regulation. 1 It would seem inconceivable that
the courts would then persist with them as regards the Lugano Convention. Priority of
other conventions
12.5 The provisions of the Regulation and Conventions maintaining or overriding
other conventions prevents conflict of jurisdiction. Such priority however goes to the
identity of the governing structure rather than resolving potential conflicts within a
structure.
12.6 Such conflicts may arise within the structure from concurrent or consecutive
litigation on the same issue in different courts and resolution is by giving priority to one
court or action where one action is already pending. It is only where there are
provisions dealing with pending actions applicable to the case in another maintained
Convention that the Regulation allocation will be replaced. 2 Prevention of foreign
proceedings by an English court—the anti suit injunction
12.7 Under English law an English court may, through such an injunction, prohibit a
party within its jurisdiction from taking or continuing proceedings in a foreign court.
The primary purpose of this power is to enforce jurisdiction and arbitration clauses
conferring jurisdiction on an English court, or generally to prevent that which English
courts see as abuse of process. At one time courts took the view that this was no
interference with foreign courts. However, in a number of cases it has been conceded
that it may be seen as at least indirect interference. It is by its nature a means of
preventing proceedings running concurrently those in England.
12.8 Until 2004 the English courts did not differentiate in applying this remedy to
proceedings before courts of States parties to the Brussels or Lugano Conventions and
to issues within those Conventions. In Turner v. Grovit3 the European Court held that
the grant of such an injunction was "incompatible" with the system of the Convention as
between courts of contracting states—that being based on the "trust which the
Contracting States accord to each other legal systems and judicial institutions". In
essence the use of an anti suit injunction in the Convention context is to interfere with
the functions of the other court. This approach is simply underlined by Regulation
44/2001, that being part of EU law. The approach applies to the Lugano Convention for
the reasons given. The sole argument in regard to the grant of such injunctions within the
EU goes to the scope of the judgment and particularly as to whether it is exclusively
linked to issues substantively within the appropriate Convention or the Regulation. 4
That matter is discussed in Chapter 25 in the context of remedies, its relevance to this
chapter lying only in the question of the attitude of an English court to an anti suit
injunction in relation to its jurisdiction. The Regulation and Brussels and Lugano
Convention—Multiple Proceedings
12.9 Under the regimes a national court must decide its own jurisdiction in
accordance with the potentially appropriate structure. So it must decide if the subject -
matter falls within the applicable regime (as, for example, whether "arbitration" is
excluded—see Chapter 5). If the matter is within the regime, is not subject to national
law or another Convention and has not previously been litigated, a court in which
jurisdiction is conferred prior to any other court there is no Regulation or Convention
provision allowing the court to decline to hear the case. A fundamental purpose of the
regimes is to prevent irreconcilable judgments between courts of Member States. So
there is a need to prevent relitigation of disputes decided, provide for ready recognition
and enforcement of judgments 5 and allocate jurisdiction where proceedings are taken
concerning the same claim or related claims in courts of different Member States.
12.10 The need for "multiple proceedings" provisions arises first as in regard to
initial proceedings there may be more than one Community jurisdiction (as, for example,
the domicile of the defendant or the place of the damage in a tort action). Secondly, the
principle of prevention of irreconcilable judgments extends to judgments on any dispute
whether or not the jurisdiction in each case was based on Community substantive
provisions. It encompasses initial jurisdiction rules of national law —but it is to be
recalled that the application of national law is itself through the Regulation or
Convention.
12.11 Articles 27–30 of the Regulations provide:
"Article 27
1. Where proceedings involving the same cause of action and between the same
parties are brought in the courts of different Member States, any court other than the
court first seised shall of its own motion stay its proceedings until such time as the
jurisdiction of the court first seised is established.
2. Where the jurisdiction of the court first seised is established, any court other
than the court first seised shall decline jurisdiction in favour of that court.
Article 28
1. Where related actions are pending in the courts of different Member States, any
court other than the court first seised may stay its proceedings.
2. Where these actions are pending at first instance, any court other than the court
first seised may also, on the application of one of the parties, decline jurisdiction if the
court first seised has jurisdiction over the actions in question and its law permits the
consolidation thereof.
3. For the purposes of this Article, actions are deemed to be related where they are
so closely connected that it is expedient to hear and determine them together to avoid the
risk of irreconcilable judgments resulting from separate proceedings.
Article 29
Where actions come within the exclusive jurisdiction of several courts, any court
other than the court first seised shall decline jurisdiction in favour of that court.
Article 30
For the purposes of this Section, a court shall be deemed to be seised:
1. at the time when the document instituting the proceedings or an equivalent
document is lodged with the court, provided that the plaintiff has not subsequently failed
to take the steps he was required to take to have service effected on the defendant, or
2. if the document has to be served before being lodged with the court, at the time
when it is received by the authority responsible for service, provided that the plaintiff
has not subsequently failed to take the steps he was required to take to have the
document lodged with the court.
12.12 The only substantive differences from the Brus sels Convention are—
(i)
(a) (in Article 28.1) to allow proceedings to be stayed at any level instead of only
"at first instance" and (b) (in Article 28.2) to limit the power to decline jurisdiction to
circumstances where the actions are pending at firs t instance;
(ii) (in Article 30) a Regulation definition of seised replacing the reference of that
issue to the internal law of the forum court (Article 52) —thereby removing one possible
ground of conflict of jurisdictions.
In regard to all other matters the authorities interpreting the Convention continue to
be applicable. The relevance of accession by a Member State
12.13 In relation to the Brussels Convention where an Accession Treaty simply
provides for its applicability to procee dings instituted after it comes into force, that
applicability is not clear if proceedings are brought in a member State prior to
accession and later proceedings in another member State after accession. 6 In Von Horn
v. Cinnamond7 the European Court held that the court second seised should decline
jurisdiction once the jurisdiction of the court first seised was established unless the
basis of that jurisdiction meant that under the Convention the judgment would not be
recognised by the court second seised. That principle appears equally applicable to the
Regulation regarding accession in 2004 of the ten new Member States. As between a
Member and Non Member State
12.14 Jurisdiction dependent on whether a court of a contracting State h as any
discretion to decline jurisdiction in favour of a non-contracting State depends on the
scope of the initial jurisdiction Convention provisions and, if these provisions do not
apply, on national law. In 1991 in Re Harrods the Court of Appeal held that the Brussels
Convention had no application to such an issue and national law is to apply. 8 In other
words, no Convention base 9 carries the consequence of excluding national law from the
question of whether or not the jurisdiction of that base should be exercised as against
that of a court of a non-Convention country. In particular, therefore, an English court
should consider the principle of forum conveniens and, if necessary, an anti sui t
injunction (see infra). Such a conclusion it was said is to be supported by the
provisions preventing multiplicity of actions being limited to courts of contracting
States.
12.15 This decision stood and was consistently applied by English courts until
2005 when in Owusu v. Jackson10 the European Court, dealing (as in Re Harrods) with
the primary Convention basis of domicile (Article 2) held
(i) there was nothing in that provision that limited it to legal issues involving only
contractual States and the Convention was intended to remove disparities between
national legislations
(ii) forum non conveniens was not compatible with the Convention, the
Convention structure provided certainty of allocation of jurisdiction, the discretionary
nature of the principle would undermine that certainty and there would be no uniform
application of it.11
Re Harrods has always been controversial. It reflects an approach which saw the
Convention as an intervention in national law. The approach of the Euro pean court is the
converse—emphasising the aims of the Convention in its European context. And that can
only be emphasised in the context of the Regulation. As between Member States
12.16 The provisions apply to concurrent proceedings pending in different states12
but require that they all started consecutively. 13 On the face of Articles 27 and 28 no
distinction is drawn between (i) actions brought on a Regulation jurisdiction base and
those brought on jurisdiction based on national law applied through Article 4 (i.e.
where the defendant is not domiciled in a Member State) 14 or (ii) exclusive and non-
exclusive Regulation jurisdiction. 15 There is simply an allocation of jurisdiction as
between actions involving the same cause of action or related claims provided there is a
risk of irreconcilable judgments. Provisional measures 16
12.17 An action for provisional measures in one state and an action on the merits
in another will not without more attract these provisions. 17 The concept of lis alibi
pendens may however be relevant to two actions for protective measures if the
measures are not restricted to the state of the court ordering them or if the making of the
order means that the court will hear the dispute. 18 Negative declarations
12.18 Negative declarations as a remedy have long been used in European states.
They are now accepted as available in English courts not only in matters within the
Brussels and Lugano Conventions but in English domestic law. 19 It follows that an
action for damages and an action for a declaration of non –liability may be a classic
situation in which Articles 21–23 operate.20
Limitations declared by English courts now overruled
"Exclusive jurisdiction" agreements
12.19 In 1993 in Continental Bank NA v. Aeakos Naviera SA 21 the Court of
Appeal held that where jurisdiction is said to be based on an agreement under Article
17 of the Brussels Convention that court must assess the validity and effect of the
clause.22 If it is in its view effective in being "exclusive", it takes precedence over
Articles 21 and 22. 23 So the fact that the English court was second seised could not
affect the jurisdiction.
In 2003 in Gasser v. MISAT24 the European Court rejected this approach as being
contrary to the plain wording of the provision "based clearly and solely on the
chronological order in which the courts involved are seised". In the Court’s view the
court second seised is never in a be tter position to determine the jurisdiction of the
court first seised. Further, the agreement may not be effective or disputes may arise as to
its existence.25 These possibilities would be contrary to the Convention aim of certainty
of jurisdiction.
Forum non conveniens and the defendant’s domicile
12.20 English courts excluded the strict chronological provisions of allocation of
jurisdiction from the assessment of whether an English court should exercise
jurisdiction as against that of another contra cting State when the defendant is not
domiciled in a Convention state. 26 The basis for this view is that by Article 4, in cases
other than those within Article 16, the jurisdiction of a contracting State is to be
determined by the law of that state. 27 So before getting to a conflict to which Article 21
or 22 apply there should first be a decision whether the English court has (or will
exercise) jurisdiction. So whether Article 21 or 22 may apply even if it is the court first
seised it still could decline the exercise of jurisdiction.
12.21 This is an entirely different point to that of the application of the Convention
to the choice of jurisdiction between contracting and non -contracting States, for it is
based on the construction of Convention rules. It has a certain logic about it but whether
it is consistent with underlying Convention principles was always dubious and in the
light of Owusu v. Jackson (see 12.15) probably now unarguable. It introduces forum
conveniens into circumstances plainly within a Convention rule, and, more, it seems to
ignore the wording of Articles 21 and 22. In neither is there any reference to the
jurisdictional basis of the rival proceedings —the provisions refer simply to when
"proceedings" or "related actions" are brought. So the Convention criterion for choice
applies, and it would seem inconsistent to approach this only after considering if the
proceedings "brought" should be stayed on grounds of national law.
12.22 This point is dealt with, at least in part, in the context of the English
approach by the theory that a stay of proceedings while the court second seised
exercises jurisdiction amounts to the English court effectively "disseising" itself. 28
Articles 21 and 22 only operate when there are concurrent proceedings and it must be
open to the court first seised to declare that it has no jurisdiction. But the question is,
given the Convention framework, may that court decline jurisdiction on the basis that the
court second seised should exercise it. That seems directly contrary to Convention
allocation,29 particularly when the effective disseising is contingent on the other court
exercising jurisdiction. If, as the English courts accept, this course would be contrar y to
the Convention if the initial jurisdiction was based on the Convention, it is difficult to
appreciate why Convention rules giving priority to the court first seised in the
prevention of the risk of irreconcilable judgments should vary according to the base of
the initial jurisdiction.
12.23 The issue is complicated by the fact the English rule of forum conveniens
domestically covers both single forum and alternative forum cases. Articles 21 and 22
require concurrent proceedings. 30 But the scope of the domestic rule must be governed
by the Convention’s framework. So there is no anomaly in the domestic rule continuing
to control initial jurisdiction but giving way to the Convention rule as soon as there are
concurrent proceedings. Any power domestically to bring jurisdiction to an end cannot,
it is suggested, operate contrary to the Convention’s method of doing so.
12.24 Whatever the merits of the above arguments it seems almost inconceivable
that in the light of Owusu v. Jackson forum non conveniens can have any application as
between Member States. 30a The English approach depends on a narrow legalistic
analysis of doubtful strength. It is high unlikely that, particularly given the wording of
the provisions, an uncertainty of jurisdiction allocation would be seen as compatible
with the Regulation. Powers and Duties of the Courts The power or duty to halt
proceedings
12.25 A court must decline jurisdiction of its own motion if seised of a claim o ver
which a court of another Member State has exclusive jurisdiction by virtue of its subject
matter (Article 25). Subject to that duty, there is no power under Articles 27 –29 for the
court first seised to decline jurisdiction or stay proceedings. Under Ar ticle 27 (the
same cause of action) the court later seised must stay proceedings pending a decision
by the court first seised 31 on any contest as to its jurisdiction. Once that jurisdiction is
established the court later seised must de cline jurisdiction. Under Article 28 (related
actions)32 the court later seised may stay its proceedings where related actions are
pending. If the actions are pending at first instance the court later seised may on the
application of a party decline jurisd iction if the court first seised has jurisdiction over
the actions in question and its law permits consolidation of the actions. Under Article
29 (exclusive jurisdiction) the court second seised must decline jurisdiction.
Consideration of the jurisdiction of the foreign court
12.26 A court before which it is asserted that another is seised has the jurisdiction
to decide whether in accordance with the Regulation 33 it is so seised. It is only if it is
held to be seised that any question of allocation of jurisdiction arises. 34 Elements of
the Provisions "Seised"
12.27 The provisions are geared to "proceedings" (Article 27) or "actions"
(Article 28), and are not focused on "issues". It would therefore be "a misreading of the
Regulation to ask which court is first seised of issues raised or might be raised" —for to
do that would result in fragmentation of decisions and the risk of irreconcilable
judgments the provisions are designed to avoid. 35 The Brussels and Lugano
Convention (Arts 21, 22)
12.28 In 1984 in Zelger v. Salinitri36 the European Court rejected an argument that
"seised" was a Convention concept. The Court said that the object of the Convention
was not to unify the formalities "closely linked to the organization of judicial procedure
in the various states". The question of when a court was seised fell within the area of
formalities and is to be referred to the rules of each national law. However, for the
purposes of the Convention a court is seised if the action is "definitively pending" —a
general Convention concept 37 construed by the English Court of Appeal as "decisive,
conclusive, final or definitive litigational relationship between the Court and
litigants".38 It is however directed at a time before the arguments of the defendant are
put.39
12.29 Both in actions in personam and in rem it is now accepted that an English
court is seised on the service of the claim form, it not being sufficient of itself to be
seised of the dispute on the merits if jurisdiction is exercised in respect of provisional
measures.40 The latter step illustrates how the courts are treading the European path of
distinguishing between provisional matters and issues on the merits, thereby easing
English law (at least in the context of Europe) away from the illogicality of viewing the
two as necessarily interlinked.41
12.30 In an action in rem the court may be seised on arrest of a ship where that act
was the foundation of jurisdiction on the merits. 42 Where the arrest was a provisional
measure only (as where the merits action is elsewhere) the court wou ld arguably not be
"seised" of the merits. 43 Although the purpose of the arrest may be irrelevant to its
validity under English law it may be relevant to whether it is a provisional measure or
the foundation of merits jurisdiction under the Brussels Conven tion or the Arrest
Convention. The Regulation (Arts 27, 28)
12.31 There is a change of approach and an attempt to bring the different national
procedures within one Convention concept. The date of seisin depends on the action of
the claimant in (i) lodging the document initiating the proceedings with the court or
(when appropriate) the authority for service and (ii) (as appropriate) ensuring either
service or complying with the time limit for lodging the document. 44
12.32 In terms of English law the court will be seised on issue of the claim form
provided (as regards the Admiralty or Commercial Court) the claimant serves the form
in accordance with the Civil Procedure Rules (including applicable Practice
Directions) (as to which see Chapter 9). So whether or not a Court is seised at the date
of issue will not be known till subsequently and may depend on whether an extension of
time for service is granted. Nevertheless it would seem that a common approach is more
satisfactory than leaving the matter to the various national laws. Taking the initial act of
the claimant either in lodging the initiating document with the court or the authority for
service as the critical act is defensible in that that is the start of the process, whether or
not it continues.45 Multi defendants
12.33 In 1994 in Grupo Torras SA v. Al Sabah46 Mance J. had to wrestle with
numerous issues under the Brussels Convention some of which were already on their
way to the European Court in The Maciej Rataj.47 One issue apparently relevant to both
cases but only argued in Grupo Torras was the date of definitive pendency in a case
involving multiple defendants. Mance J. felt the only practical date was that of service
on the defendant first seised. Otherwise the re would be fragmentation and confusion
with different courts having jurisdiction in the same related causes of action. In such
actions the approach was to compare the whole and not take a defendant by defendant
approach.
12.34 However such a construction involves the concept of a defendant being
treated as served although not served and being notified of proceedings without
knowing of them. The subsequent decision of the European Court in The Maciej Rataj
accepted the disadvantage of fragmentation in taking a strict view of "the same parties"
in Article 21 (see infra). As the Court of Appeal accepted in The Grupo Torras case 48
the approach of Mance J. could not stand with the party by party approach underly ing
the decision in The Maciej Rataj. There was no escape from the conclusion that those
defendants not served are not parties. It must surely be the responsibility of the claimant
to ensure contemporaneous service or accept that there will be consecutive parties.49
That is simply underlined by the focus of the Regulation. The same cause of action and
between the same parties
12.35 Subject to the limitations discussed above, a court must decline jurisdiction
if proceedings involving the same parties and sam e cause of action are in being
elsewhere when proceedings are commenced before it unless the jurisdiction of the
other court is not established. The matter must be considered whether or not raised by a
party—the court’s duty is to stay proceedings "of its own motion" until it is
established.50 Whether or not there is identity of causes of action and parties is a matter
for European law to be interpreted independently of "the special features of the law in
force in each Contracting [i.e. Member] State". 51
The same cause of action
12.36 Whether or not proceedings are based on the same cause of action is a matter
for European and not national law. In Gubisch Maschinenfabrik KA v. Palumbo52 it
was held they were the same in this sense if they have the same "subject -matter". So
following this criterion causes of action are the same when in respect of a collision
each party sues the other 53 or as regards a sales contract the vendor sought payment and
the purchaser a declaration that the contract had been revoked or rescission of the
contract.54
12.37 In The Maciej Rataj55 one issue was whether an action for damages and an
action for declaration of non-liability were the "same cause of action". It was p ointed
out (citing Gubisch) that the language versions other than English distinguish between
the cause of action and the object requiring that they be the same. The cause of action in
this context "comprises the facts and rules of law relied on as the bas is of the action"
while the object is "the end of the action in view". In assessing the matter no account is
to be taken of defences raised by the defendant. 56
12.38 So an analysis must be undertaken of the grounds of the action and its
purpose. The reliance on a different basis of liability may not of itself lead to a
conclusion that "cause" is not identical 57 but different factual elements would probably
do so.58 Reliance on categorisation of rights as substantive and procedural may do more
to conceal than reveal critical identities or differences. However, the categorisation
may indicate a different ground and certainly a different rule of law. So at least liability
and limitation actions at least where there are multi parties may be sa id to differ in that
the liability action is asserting a claim whereas a limitation action is limiting the amount
payable to the claimants proportionately. 59 An interpleader action will differ from
liability actions in respect of the various claimants rele vant to the interpleader claim,
that claim being made by machinery aimed at allowing the claimant in that claim to
force a decision in regard to which the admitted liability lies and should be met. 60
12.39 In The Maciej Rataj itself the court held that an action for a declaration of
nonliability and an action asserting liability based on the same carriage of bulk cargo
and on identical contracts had the same cause of action. Further, the two actions had the
same object, the issue of liability being central to both. The fact that damage is sought in
one but not the other "does not alter the principal object of the action" and further a
declaration of non-liability disputes liability for loss. It follows that a defendant (or
potential defendant) may take the initiative through a "pre -emptive strike" for a
declaration of non-liability. That court would therefore be the first seised and the
plaintiff will find that his claim must be adjudged in that court.
Liability and limitation proceedings
12.40 While both are "proceedings" for the purposes of Article 27 they clearly
have neither the same subject matter nor the same cause of action. The subject matter of
the limitation proceedings is to limit compensation not to assess liabili ty. The cause of
actions differ as liability is based on non contractual liability and limitation on
Convention or statute 61 (see Chapter 24).
An action in personam and an action in rem
12.41 In The Maciej Rataj the European Court held that the distinction between an
action in personam and an action in rem was not material to the multiple proceedings
provisions of the Brussels Convention. These were "special features of the law in force
in each Contracting State" and hence irrelevant. The holding of the Court in the
circumstances of the case does not, however, deal with the question of whether an
action in personam and an action in rem always reflect the "same cause of action". It
would seem that both have the same "object" (liability and damages), although this is
accomplished by a different method. They are both based on the same facts but would
differ as to rule of law insofar as liability in the action in rem was based on liability
other than in personam. Whether that is so will depend on the claim and probably that
any difference will be limited to a case in which there is also a difference in parties. 62
Between the same parties
12.42 In The Maciej Rat aj 63 the European Court stressed that the purpose of the
provision was to preclude the non -recognition of a judgment because of
irreconcilability with another between the same parties. Subject to identity of interests
(see infra), for Article 21 to apply therefore the parties to the different proceedings
must be identical. Where there is identity in the case of some parties but not others it is
only in respect of the same parties in the two proceedings that Article 21 will operate.
This construction may make the handling of multi -party cases somewhat difficult save
that, as the Court pointed out, the actions with "new" parties will in all probability be
"related actions". There must be a strong case for a stay in any court second seised
where there is such common ground between actions.
Identity of interest
12.43 Where there is such an identity of interest between parties that a judgment
against one would be res judicata in respect of the other, there is identity of the parties
for the purposes of Article 21. That would occur, for example, if an insurer brought an
action by virtue of subrogation in the name of its insured and the insured could not
influence the proceedings. On the other hand if the interests of the insurer and insured
diverge there is no such identity. 64
An action in personam and an action in rem
12.44 The recognition in The Indian Grace (No. 2) 65 that an action in rem is
against a defendant meant that the statutory prohibition against a further action
subsequently to a judgment of a foreign court involving the same defendant could apply.
The critical factor in relation to the parties is therefore in English law not the existence
but the identity of the defendant and in support of the view that an action in rem was
against a defendant Lord Steyn cited the approach to the issue by the European Court.
12.45 So the question of identity of the parties is identical whether the domestic
actions are in rem or in personam. That may not occur insofar as the action in rem is not
against a person liable in personam (as, for example, a purchaser or a shipowne r when
the person liable in personam is a charterer). 66 Related actions (Regulation Art. 28,
Conventions Art. 22)
12.46 It is in this context that, even as regards allocation between jurisdictions
based on Convention grounds, forum non conveniens may continue to play a part in the
conferring of a power on a court other than the court first seised to stay the proceedings
or to decline jurisdiction. The latter power is limited to actions pending at first instance
and on application by a party. 67 "To avoid the risk of irreconcilable judgments"
12.47 The central purpose of all the "multiple proceedings" provisions is that
according to which in Article 28 a national court must consider a stay —where the risk
of irreconcilable judgments makes it "expedient" to hear the cases together. 68 The
purpose becomes a relevant criterion for a court only insofar as Article 27 or Article 29
are not applicable. "Irreconcilable" is not to be construed in this context in the same
way as the identical phrase providing a ground for non -recognition of a judgment of a
court of another state—the objectives are different. Non -recognition of a judgment
requires that the decisions must have "mutually exclusive legal consequences", i.e . be
necessarily inconsistent. The objective of the "multiple proceedings" provision is,
however, to "avoid conflicting and contradictory decisions even where the separate
enforcement of each of them is not precluded". In other words it is the avoidance of risk
and not the necessary consequence at which provision is aimed. So proceedings in two
states by different cargo owners against the same shipowner in relation to different but
identical contracts of carriage in respect of different parts of the same bu lk cargo were
within (now) Article 28. 69
12.48 In determining if there is such a risk there should be a broad common sense
approach. There is no restriction to facts necessary to establish the cause of action (so -
called "primary issues"). The criterion of "expediency" indicates a wide range of
circumstances. To confine consideration to primary issues would encourage complexity
of approach and come close to adopting the narrower text of "mutually exclusive legal
consequences" disapproved by the European Cou rt.70
12.49 There is a strong argument generally for staying the proceedings for, once the
actions are related, the risk of irreconcilable (and hence) unenforceable judgments must
be great.71 If, because of the presence of additional parties, the actions do not fall within
Article 21 the presence of a common party must mean the risk of irreconcilable
judgments.72 The discretion of the court later seised therefore comes into operation and
that discretion must be exercised with the risk firmly in mind. 73 Further, it is possible
that actions relating to identical subject -matter and defendant but brought by different
plaintiffs may be "related". Where in The Maciej Rataj different cargo consignees of
parts of the same cargo of soya bean oil brought actions against the shipowner the
European Court held that the "related actions" provision would mitigate the
disadvantage of its holding that the requirement of the same parties in Article 21 meant
identical parties (see supra). The juridical advantage of a party in a suit in the court
later seised should play even less of a role than where the discretion to stay is exercised
outside the Convention framework —that framework recognising each legal syst em
within it as equal. 74 Liability and limitation proceedings
12.50 In 1991 in Dresser UK Ltd v. Falcongate Freight Management Ltd 75 and in
1997 in The Happy Fellow 76 the Court of Appeal accepted that limitation and liability
proceedings were in principle "related" —there was the risk of irreconcilable
judgments.77 In the latter case the Court rejected arguments that an admission of liability
removed the risk, but on the particular facts of that case. First, there had been admission
only after the first instance hearing in the second seised English court, and the decision
as to stay, it was held, must be based on the facts as they existed at that hearing.
Secondly, it was open to the French court considering the liability action both to base its
judgment on facts yet to be found by a survey and to consider limitation. 78
12.51 It follows that whenever the actions are related a shipowner could therefore
make "a pre-emptive strike" and then by the use of Article 28 force the liability claimant
into a jurisdiction of the shipowner’s choosing. 79
Multiple "exclusive" jurisdiction (Article 23)
12.52 Exclusive jurisdiction is a phrase used in respect of jurisdiction : (a)
imposed by Article 16 if a matter falls within it; or (b) conferred by Articles 17 and 18
through agreement or submission through appearance. Article 16 is expressly given
priority over Articles 17 and 18 and it has been held that appearance under Ar ticle 18
overrides any agreement under Article 17. Article 23 must therefore be of limited
scope. It will apply only where there is no priority principle —as, for example, in
proceedings within Article 16 elements which lead to different jurisdiction or if an
agreement under Article 17 leads to two different jurisdictions. 2. Restrictions on
English Proceedings Other Than under the Brussels or Lugano Convention
12.53 The claimant who complies with the requirements for the establish ing of
jurisdiction in the English Court to hear a maritime claim may be met by objections to
the exercise of that jurisdiction. 79a These possible objections are based on general
principles applicable to all claims but also have consequences peculiar to th e maritime
area because of the linking of provisional remedy and security aspects to jurisdiction
over the merits of a claim.
The restrictions to be considered are:
Inherent jurisdiction to stay proceedings;
Agreements to submit dispute to foreign forum;
Arbitration agreements;
The appropriate forum (forum conveniens);
Issue estoppel and res judicata;
State immunity (whether foreign or English);
Restrictions on specific claims;
Abuse of process. 1. Inherent Jurisdiction to Stay Proceedings80
12.54 There is an inherent jurisdiction in the High Court and higher appellate
courts to stay proceedings. It is relatively rarely asserted as most stay applications will
be based on one of grounds 2–8 above. But it is often emphasized, and it has been
suggested as the basis of stay where, for example, in the exceptional case for a court
rather than the arbitral tribunal to determine if there is a valid arbitration 81 agreement or
to stay proceedings between two parties pending an arbitration between o ne of the
parties and a third party. 82 2. Foreign Forum Agreements
12.55 Many maritime contracts (in particular, bills of lading) include jurisdiction
clauses; and in many cases the same clause will specify the law which is to govern the
contract. To what extent will such a clause be upheld by the English courts?
The issue will usually arise:
(a) as part of a request for permission to serve a defendant out of the jurisdiction in
an action in personam (as to which see Chapter 9);
(b) (most commonly) through a request for a stay of proceedings instituted in an
English court contrary to such a clause. Construction of the clause
12.56 Forum and arbitration clauses are excluded from the ambit of the Rome
Convention on the Law Applicable to Contracts 1980 enacted by the 1990 Act, and it is
therefore to the principles of law in being prior to and apart from that Act that reference
must be made. Governing law is discussed in Chapter 26 but in the present context it
should be stressed that if there is no effective choice of law in the bill of lading or other
contract, the validity of the jurisdiction clause (and hence the jurisdiction) will be
assessed in accordance with the law having the closest connection with the contract. In
particular it should be borne in mind that English law does not recognise a "floating"
choice of law substantively governing the contract —as, for example, an option as to the
law given to the shipowner. 83
12.57 The clause must not be so equivocal as to be uncertain. Howe ver, given the
construction of “British courts” in an international maritime contract by the Court of
Appeal as the Commercial Court and Admiralty Court 84 there may be room for evidence
as to type of court that reference might have been expected to be made . Where there are
two different exclusive jurisdiction clauses in contracts so related as to create common
issues the English court will consider issues of forum conveniens, the circumstances
surrounding the contracts and their creation. So where one jurisdiction is English the
question would be in relation to each clause whether the party seeking to litigate in the
particular court had satisfied the burden of showing a stay justifiable (as to which see
infra). If not, the proceedings would take their separate courses. 85 Litigation or
arbitration
12.58 A persistent problem stems from the incorporation (or arguable
incorporation) of charterparty terms into a bill of lading when the charterparty c ontains
a jurisdiction or arbitration clause. The principles of incorporation have been discussed
at length and were admirably summarised in 2003 in Siboti K/S v. B.P. France SA.86 In
that Gross J. stressed the need for clarity and certainty given the stat us of bills of lading
as negotiable instruments and the jurisdictional consequence of incorporation. But all in
the end depends on the intentions of the parties.
12.59 In assessing incorporation, construction of the bill of lading is the startpoint,
and on one view the end point. 87 There is no difference for this purpose between a
jurisdiction and arbitration clause. 88 Incorporation is not merely notice and general
words of incorporation without reference to the jurisdiction or ar bitration clause will
not suffice. There must not be a need for undue manipulation of the wording. 89
12.60 A further problem relevant in the present context arises when the question of
incorporation of a charterparty arbitration clause arises in relation t o a bill of lading
containing a jurisdiction clause (see Chapter 13). It may be argued, it is then more
difficult to incorporate an arbitration clause particularly where it is necessary to
"manipulate" a clause referring to shipowners and charterers so as to apply to charterers
and shippers.
12.61 Where under the principles of incorporation the arbitration clause would be
incorporated in a bill of lading, any inconsistency with a jurisdiction clause is a matter
of construction. Precedence is given to specific provision rather than standard clauses
and normally the express term against the incorporated term. 90 Provision simply for
"English jurisdiction" is not necessarily inconsistent with a concurrent express
reference of any dispute to arbitration —for the arbitration must itself be subject to a
particular jurisdiction. Especially is this so if there is also provision for the application
of the law of the place in which jurisdiction is conferred —the arbitration clause
operates.91 Scope of the clause
12.62 The first question goes to the extent to which the parties are bound by the
agreement. So a clause limited to disputes "arising under this docume nt" (i.e. a bill of
lading) does not of itself include a non -party.92 Provided the clause is not drafted so as
to exclude them, non-parties to the contract may be bound under the general principles
of holders of bills of lading, as persons to whom the good s are delivered, 93 or as
bailees of the goods. 94 A jurisdiction agreement (just as an arbitration agreement)
should be seen as part of any right assigned and therefore to benefit and bind an
assignee of the right. 95 But a shipowner cannot rely on a clause under which the
shipowner as subcontractor was entitled to benefits conferred on the carrier (a
Himalaya clause) to take advantage of a jurisdiction clause. The jurisdiction clause
creates mutual rights and obligations and as such falls outside the clause conferring only
benefits on the non-party.96
12.63 There may be a limitation by reference to the claims 97 or the kind of
proceedings specified. So in 1980 the Court of Appeal was prepared to consider that a
clause focusing on "legal proceedings against the Carrier" did not include proceedings
against the ship. 98 That particular contention would stand little chance of success now it
is accepted that the defendant in an action in rem is the person having an interest in the
ship,99 but the point as to scope remains relevant. Construction problems are inevitable
but it is at least necessary to be conscious of their potential consequences, particularly
in the use of standard forms. Whether the clause is "exclusive"
12.64 A non-exclusive (i.e. a permissive) clause may have less weight than an
agreement excluding all jurisdiction save that selected. English courts have construed
the relevance and nature of the issue primarily in respect of English jurisdiction clauses
but the principles must be identical. 100 Whether the clause is exclusive or permissive is
a matter of construction—the word "exclusive" is not necessary. 101 There is nothing
inherently wrong in law or practice in providing for more than one jurisdiction but if
only one is specified there may be little point in so providing unless it is intended that
the jurisdiction be exclusive. 102 A "service of suit" clause by which one party agrees to
submit to the jurisdiction chosen by another does not deprive either party from initiating
proceedings in any place where it is entitled to act —it simply imposes the obligation
stated.103
12.65 In deciding whether or not a clause is exclusive a distinction has been drawn
between an intransitive clause by which the parties agree to submit themsel ves to a
court chosen by one of them and a clause having a "transitive sense" and by which the
parties agree to submit disputes to a particular court. The former is apt to describe an
intention to agree to submit while the latter imposes a contractual obli gation.104 A
clause of submission followed by the reservation of an option in one party to bring suit
elsewhere leads to the conclusion that the clause is "exclusive" in respect of the other
party.105
12.66 However, it all depends on the contract. So in Berisford v. New Hampshire
Insurance106 Hobhouse J. held that a clause in an insurance contract that "this insurance
is subject to English jurisdiction" was non -exclusive.107 In that role it had a purpose in
indicating to the plaintiff (who would normally be the assured) that an action could be
brought in the English courts. Further it would necessarily be a strong factor in any issue
of whether England was the appropriate forum —a point made even more strongly in
British Aerospace Ltd v. Dee Howard Co.108 In that case Waller J. expressed the view
that in the face of an agreement for English jurisdiction the plea of forum non
conveniens was not open to the parties save as to circumstances not foreseeable when
the bargain was struck. 109 Such a view should apply to militate against English
jurisdiction where the clause is in favour of a foreign court 110—although English courts
may "look with favour" at the choice of English jurisdiction as a neutral forum. 111
Limitations on agreements as a jurisdiction base
12.67 The recognition of agreement as a jurisdictional ground is subject to any
requirement of a mandatory link between territory and dispute as a jurisdictional
prerequisite, or the imposition of mandatory rules to the dispute. To give effect to those
rules it may be held that any agreement in favour of a foreign forum is void.
12.68 In English law the imposition of jurisdiction contacts or mandatory
substantive rules tends to be rooted in Conventions enacte d into national law. 112 So the
Collision Jurisdiction Convention 1952 requires one or more of specified links for an
action in personam.113 The Athens Convention Relating to the Carriage of Passengers
and Their Luggage by Sea, 114 the CMR (relating to international carriage by road) but
which applies in part to sea carriage 115 specify where actions must be brought.
12.69 In the Athens Convention a jurisdiction agreement is permitted only after the
event creating the dispute. In the Collision Jurisdiction Convention and the CMR
jurisdictional choice is but one of a number of permissible jurisdiction grounds; and it
must be arguable that in the face of an action in one of a number of permitted
jurisdiction the English presumption of upholding the choice of jurisdiction by
agreement (see infra) would not apply. The Hague and Hague -Visby Rules
12.70 The Hague and Hague -Visby Rules contain no express jurisdiction
provisions.116 In the only reported English case on the effect of a jurisdiction clause in
relation to a dispute within the English version of the Hague Rules the clause was
upheld. The basis of the decision was that the law to be applied would be the same as
English law.117
12.71 The replacement in England of the Hague Rules by the Hague -Visby Rules
has changed the picture in two respects. First, the rules as enacted in England now apply
by statute to many more voyages than previously and may so apply to a voyage having
no connection with England. Secondly, the Carriage of Goods by Sea Act 1971 provides
that the rules are to have "the force of law".
12.72 The phrase "force of law" has become the traditional method of enacting
Conventions into English law where this is done by settin g out the Convention
provisions in a schedule to the enabling provision. In particular the phrase is employed
in the Carriage of Goods by Road Act 1965, section 1 (in relation to the CMR
Convention); the Merchant Shipping Act 1995, section 183(1) (in relat ion to the Athens
Convention 1974); section 185 (in relation to the Limitation of Liability Convention
1976); section 224 (in relation to the Salvage Convention 1989); and the Civil
Jurisdiction and Judgments Acts 1982 and 1991 (in relation to the Brussels and Lugano
Conventions). On its face the phrase is not necessarily mandatory in the sense of
directing an English court to apply the statute despite any choice of jurisdiction or law
by a party which would evade it. It remains somewhat of a mystery why, i f it was
intended to be mandatory, it is not drafted in clear language so providing. A glance at
section 9 of the Australian Sea Carriage of Goods Act 1924 provides a model.
"9(1) All parties to any bill of lading or document relating to the carriage of go ods
from any place in Australia to any place outside Australia shall be deemed to have
intended to contract according to the laws in force at the place of sh ipment, and any
stipulation or agreement to the contrary, or purporting to oust or lessen the jurisdiction
of the Courts of the Commonwealth or of a State in respect of the bill of lading or
document, shall be illegal, null and void, and of no effect.
(2) Any stipulation or agreement, whether made in the Commonwealth or
elsewhere, purporting to oust or lessen the jurisdiction of the Courts of the
Commonwealth or of a State in respect of any bill of lading or document relating to the
carriage of goods from any place outside Australia to any place in Australia shall be
illegal, null and void, and of no effect" 118
12.73 The lack of statutory clarity enabled argument and counter -argument on the
issue of "force of law" to carry The Morviken119 to the House of Lords in 1982. In the
case, the bill of lading provided in the same clause:
(i) for exclusive jurisdiction in the court of Amsterdam;
(ii) choice of law and a maximum carrier’s liability according to the Hague Rules
(to which the Netherlands was then a party) well below that according to the Hague -
Visby Rules (to which the United Kingdom was a party).
Proceedings were brought in England and it was argued by the cargo owners that
because of the maximum liability less t han the Hague-Visby Rules the whole clause
(including the provision for jurisdiction) was invalid. It lessened the liability of the
carrier and was, therefore, "null and void and of no effect" by Article III, rule 8, of the
rules.
12.74 The House of Lords held that Article III, rule 8, applied not only to clauses
the carrier’s liability but to any clause which, if applied, would lessen that liability. In
respect of a choice of forum clause if, when relied on, it would have that consequence"
an English court is . . . commanded by the 1971 Act to treat the clause as of no effect".
As a result, a choice of forum or a choice of law clause in a bill of lading to which the
Hague-Visby Rules apply " by force of law" will be treated by an English court as void
to the extent that it falls foul of Article III, rule 8, of the rules. 120 However, it will
remain valid in all other respects. 121 Further a reference to a jurisdiction which would
not apply the Hague-Visby Rules but would apply a domestic statute relating to
limitation of shipowner’s liability is not invalid. 122 It comes within Article VIII of the
Rules providing that the rules:
"shall not affect the rights and obligations of the carrier under any statute for the
time being in force relating to the limitation of the liability of owners of sea going
vessels." The effect in English law (a) Stay of proceedings
12.75 In theory the presumption of upholding contracts holds full sway. 123 Yet at
one time it seemed difficult to trace any consistent principle through the cases. The
cynic may say that the issue turned to a large extent on the identity of the jurisdiction for
which the parties have opted, but even this focus (hardly a principle) is di fficult to
establish. Judicial concern has often been expressed at the cost in time and expense of
lengthy proceedings solely directed at the place of trial (one aspect of "satellite
litigation"). In some cases such contests may be tactical moves to furthe r settlements124
but, whatever the motive, courts on occasion are not over -impressed by lengthy
documentation and argument. 125 However, lengthy and complex arguments seem to
continue,126 and, perhaps, because of this the issues now seem to be considered in detail
and, it may be said, with full discussion of relevant issues.
12.76 English appellate courts take the view that the matter of upholding an
agreement is one for the discretion of the trial judge. It is not enough to overrule the
exercise of the discretion that the appeal court disagrees with it. It must be shown that
the judge made an error in principle or that he has taken into account matter s which he
ought not to have done or has failed to take into account matters which he ought to have
done or because of wrongful evaluation of the circumstances his decision was "plainly
wrong".127 So, in 1976, the Court of Appeal (applying these principles ) upheld Brandon
J. in The Adolf Warski 128 (refusing a stay) and The Makefjell129 (granting a stay)—two
decisions on very similar facts. 130
12.77 It was Brandon J. who in 1969 formulated the factors which should be
investigated to decide whether the presumption of upholding the contract is rebutted. In
The Eleftheria he said:
"The principles established by the authorities can, I think, be summarised as
follows: (1) Where plaintiffs sue in England in breach of an agreement to refer dispu tes
to a foreign court, and the defendants apply for a stay, the English court, assuming the
claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a
discretion whether to do so or not. (2) The discretion should be exercised by granting a
stay unless strong cause for not doing so is shown. (3) The burden of proving such
strong cause is on the plaintiffs. (4) In exercising its discretion the court should take into
account all the circumstances of the particular case. (5) In parti cular, but without
prejudice to (4), the following matters, where they arise, may properly be regarded: (a)
In what country the evidence on the issues of fact is situated, or more readily available,
and the effect of that on the relative convenience and ex pense of trial as between the
English and foreign courts. (b) Whether the law of the foreign court applies and, if so,
whether it differs from English law in any material respects. (c) With what country
either party is connected, and how closely. (d) Wheth er the defendants genuinely desire
trial in the foreign country, or are only seeking procedural advantages. (e) Whether the
plaintiffs would be prejudiced by having to sue in the foreign court because they would:
(i) be deprived of security for their claim ; (ii) be unable to enforce any judgment
obtained; (iii) be faced with a time-bar not applicable in England; or (iv) for political,
racial, religious or other reasons be unlikely to get a fair trial." 131
12.78 In The El Amria the same judge (as Brandon L.J.) gave the leading judgment
affirming these principles subject to these qualifications. At first instance Sheen J. had
expressed the view that if the matter were to be heard in Egypt the parties "would not
obtain the full and thorough investigation" which they desired.132 The Court of Appeal
thought it improper for an English judge to compare the English and Egyptian system of
justice and even more improper to pronounce on the respective merits. 133 Brandon L.J.
(with whom Rees L.J. and Stephenson L.J. agre ed) qualified this general prohibition,
saying that it would be right to take into account:
(a) the availability of a remedy in an English court which is not available in the
foreign court;
(b) the involvement of very great delay through foreign court procedure; and
(c) "in wholly exceptional cases" clearly established serious defects in foreign
procedures.
To the extent that paragraph 5(d) of the principles of The Eleftheria might be
interpreted as excluding procedural considerations it was to be qua lified by (a), (b) and
(c) as set out in this case. 134
12.79 In The Havhelt135 Saville J. pointed out that the deprivation of security in the
foreign court (5(e)(i)) has been "somewhat overtaken" by the introduction of the
statutory ability of the English court to retain security. 136 Subject to this, the factors have
been consistently applied 137 but there is less apparent consistency in the results of their
application. Indeed, it is not easy to differentiate between The Adolf Warski and The
Makefjell given that the Polish time bar in The Adolf Warski was put on one side. There
have been more than traces of suspicion that English judges have not been averse to
exercising English jurisdiction, even if as a consequence they must apply foreign law. It
is perhaps curious that where a jurisdiction clause was linked to a choice of law there
seems some reluctance to reject the first while upholding the second. The clim ate may
be changing with, in particular, a greater readiness to grant a stay on undertakings —such
as, for example, not to rely on a package limitation less than the Hague -Visby Rules138
or a time bar. 139 There is also perhaps a greater readiness to see cho ice of law as
relevant to jurisdiction.
12.80 Of the factors specifically mentioned in The Eleftheria, the foreign law, the
time bar, and the possibility of an unfair trial call for further consideration.
The relevance of the foreign law
12.81 As Brandon J. said in The Makefjell: "where the decision of a dispute
depends in part at least on the law of a foreign country that is a circumstance which
makes it better, other things being equal, for that dispute to be decided by the Courts of
that country."140 Any such difference is a factor in favour of upholding the jurisdiction
clause. It is suggested that the simple fact of choice of a law which is the law of the
selected forum should be a strong factor in upholding the clause. Unless there are
reasons of policy for rejecting the choice of law the matching of jurisdiction and law
should not be underestimated. Reliance on easy accessibility of foreign law should
perhaps be treated with caution. 141 Further, to apply the artificial rule of the
presumption that foreign law is to be equated with English law 142 is to allow a rule
which may justifiably operate to prevent a court being found with "no law" to operate to
prevent the application by a tribunal of its own law.
12.82 In The Al Battani143 Sheen J. thought that there was no reason why as a
matter of comity a jurisdiction clause should be upheld when the forum chosen would
regard the clause as null and void. It still, however, remains a matter of contract, but, as
in that case the foreign law allowed the plaintiff an option to litigate in England there
was little point in practice or principle in a stay.
The time bar
12.83 The operation of a time bar is discussed in the general context of delay in
Chapter 11. It is sufficient here to summaris e the approaches. Despite the apparent role
given to it in The El Amria in favour of refusal of a stay, three different and
contradictory approaches have been identified:
(1) that it operated against a stay as it would deprive the plaintiffs of any remed y;
(2) that it operated in favour of a stay as it would deprive the defendants of a
defence available in the selected jurisdiction;
(3) that balancing (1) and (2) it was neutral.
It would seem that the principle to emerge is that it is for the claimant to show
either a strong cause for English jurisdiction apart from the time bar, or (arguably) that
the allowing of time to run out in the selected jurisdiction was not unreasonable. 144 On
the first approach the reasonableness of letting time run out is sh own by the strong
cause.145
12.84 The existence of and justification for the second criterion is more debatable
and in effect equates cases of forum non conveniens (see infra) with a jurisdiction
clause. That plainly ignores the very factors emphasized by the courts in upholding
contractual bargains and should, it is suggested, extend only to cases where, such as in
applying the Hague-Visby Rules, the English court would declare the agreement
invalid.146 In any event a stay may be granted on an undertaking not to raise or rely on
the time bar, provided that there is little risk that such a cause would not be permitted by
the foreign court. 147 Assessment of such a risk is a matter of discretion for t he English
court.148 (b) Arrest
12.85 The effect of a jurisdiction agreement in favour of a foreign court on the
power to arrest in England is considered fully in Chapter 15. It suffices here to
emphasise that apart from statutory intervention permitting retention on stay of
proceedings (see infra), the power to arrest is dependent on the issue of a warrant, in
turn dependent on the issue of an in rem claim form; and that arguably a stay of
proceedings commenced with such issue removes the basis for the arrest. The claim
form is no longer effective. However, even if this be analytically correct, the stay (being
discretionary) may be made conditional on the provision of an equivalent security.
12.86 The inability to retain a ship under arrest pending the outcome of foreign
proceedings because of the need for an action in rem before the English court was
probably contrary to the provisions of the Arrest Convention 1952 ratified by the United
Kingdom. There seemed little in principle or policy why the international obligations
should not be complied with. And, more radically, it would make considerable sense to
apply the now established division of provisional remedies and remedies 149 on the
merits to distinguish between arrest as a jurisdiction base and as a provisional measure.
12.87 The Civil Jurisdiction and Judgments Act 1982, section 26, went some way
towards meeting international obligations but (regrettably it is submitted) underlines the
connection between arrest and "merits" jurisdiction. It provides that on the staying or
dismissal of Admiralty proceedings on the basis that the dispute be submitted to another
court, a court may order property arrested to "be retained as security" or order the stay
or dismissal to be conditional on provision of security equivalent to the arrested
property. This is taken a step further by the CPR. It is there provided that, unless the
court orders otherwise where a court orders a stay of any claim in rem, any property
under arrest remains so any security representing the property remains in force. 150 So
the principle of dependence of arrest on issue of the in rem claim form remains 151—but
the retention under arrest is no longer dependent on the continuation of proceedings
begun by the issue of the claim form. 3. Arbitration Agreements
12.88 Such agreements are common in maritime transactions. Insofar as they are
"non domestic" in character (i.e. have a relevant foreign element) English courts under
the Arbitration Act 1996 must stay proceedings commenced inconsistently with them. 152
Provisions of the 1996 Act continue the statutory discretion if the arbitration clause is
domestic whether or not to order a stay. 153 Arbitration is discussed generally in Chapter
13 and the enforceability of awards in Chapters 25 and 27. Arrest and arbitration
clauses154
12.89 The principles of (i) the dependence of the power of arrest on jurisdiction in
an action in rem and (ii) the mandatory stay of such an action created difficulties for an
English court in exercising its power of arrest in the face of a non -domestic arbitration
clause. In particular, the connection between arrest and writ in rem illustrated a policy
of the inappropriateness of arrest as a security for arbitration proceedings. 155
12.90 The "alternative security" method of avoiding the limitations on the power to
retain under arrest available in the context of a jurisdictional clause (i.e. attaching of
conditions to the stay of proceedings) is less obviously available where the stay is
mandatory. In such circumstances a court may not attach conditions on the stay, but in
1978 in The Rena K156 Brandon J. was prepared to consider attaching conditions to th e
release or refusing a release where there was a likelihood that any arbitration award
would not be met. As is argued elsewhere in this work, 157 the legal justification for this
approach seemed as dubious as its commercial justification was obvious.
12.91 The Civil Jurisdiction and Judgments Act 1982, section 26, makes specific
provision for the retention of property arrested or alternative security if Admiralty
proceedings are stayed or dismissed, by reason of submission to arbitration. The CPR
provides generally on a stay for property to remain under arrest or security to remain in
force (see 12.85). But an in rem claim form is a prerequisite for the arrest —arbitration
proceedings are still not of themselves the basis of security through arrest.
12.92 However, the introduction of the statutory provision removed any policy
objection to the issue of the claim form for the purpose of security in arbitration. In
some part the need to attach conditions to release was removed by the later view taken
by the Court of Appeal that the stay required, because of arbitration, was limited to
substantive issues to be arbitrated. 158 The criteria for release of the security it was held
by the Court of Appeal are those applicable generally in The Rena K and this is
underlined by the CPR provision that the arrest remains unless ordered otherwise ( see
Chapter 15). There would be no need for such an indirect approach if either the power
to arrest was seen in its realistic light—a provisional remedy not linked exclusively to a
judicial hearing on the merits—or specific statutory provisions made for arrest in
support of arbitration. 4. The Appropriate Forum—"Forum Conveniens"
12.93 An English court may refuse to exercise jurisdiction established as of right
on the basis that it is an inappropriate forum. Until 1972, a defendant seeking a stay of
proceedings had to prove that the continuance of the proceedings would be "vexatious
and oppressive" which, it was taken to mean, indicated the claimant’s harassment of the
defendant. Simply taking advantage of English rules or causing gross inconvenience was
not enough for a stay. Harassment of this kind was most easily established by the
institution of duplicate proceedings by the plaintiff. Under the modern approach unless
there are other factors the claimant may simply be required to elect in which jurisdiction
the suit is to be brought—the issue of forum non conveniens is not reached.159 It would,
however, apply to the forum elected (see infra).
12.94 In 1972 in The Atlantic Star160 the House of Lords moved away from the
claimant-oriented approach which emphasized the availability of the English process to
any plaintiff catching his defendant within the territory. In 1978 this movement was
continued in MacShannon v. Rockware Glass Ltd.161 The principles to be followed in
English courts were to be gathered from the judgments in that case, but it was by no
means easy to determine quite how far there had been a move from "vexatious and
oppressive" towards "appropriateness" in any but a semantic sense.
12.95 In 1984, in The Abidin Daver 162 (a case in which foreign proceedings were
in existence) the Court of Appeal (displaying a fine disregard for the developing
doctrine) reverted to the view held in The Atlantic Star by the Court of Appeal but
rejected emphatically by the House of Lords. Sir John Donaldson, referring to the
expertise of the English Admiralty Court, took a similar line to that condemned so
roundly by Lord Reid some 12 years previously. In the House of Lords 163 he drew a
similar rebuke in the terms that he was in effect comparing English and foreign courts.
The judgments in The Abidin Daver moved English law closer to a substantive doctrine
of forum non conveniens.
12.96 Yet qualifications remained. First, the House of Lords in MacShannon made
it quite clear that "balance of convenience" was not enough. Secondly, the plea for a
stay could be defeated by proof that the plaintiff had a personal or juridical advantage in
suing in England. Yet to allow a plaintiff to substantiate his claim to be heard on the
grounds that he had a better chance to win was inconsistent with the idea of balancing
one forum against another on the basis of links with the dispute. Thirdly, the question of
stay remained a matter of discretion.
12.97 The uncertainties were largely set at rest in 1986 by the House of Lords (and
particularly the judgment of Lord Goff) in The Spiliada.164 It is that case which now
forms the root of the principle. It is made clear that it applies both to discretion to
permit a claim form to be served out of England and the stay of proceedings in which
jurisdiction is established. The principle is statutorily recognised by section 49 of the
Civil Jurisdiction and Judgments Act 1982. 165 Lord Goff stressed that the principle was
not one of convenience but of appropriateness and made it clear in the application of the
principle to the facts of the case it remains essentially a matter for the discretion of the
trial judge. An appellate court will not interfere simply because it disagrees. 166
12.98 Fundamental elements of the principle are that for a stay:
(a) there must be another available forum having competent jurisdiction "in which
the case may be tried more suitably for the interests of the parties and the ends of
justice";
(b) the defendant must show that the stay should be granted but if the court is
satisfied that prima facie there is a more appropriate forum it is for the plaintiff to show
any special circumstances why a stay should not be granted; 167
(c) the defendant must establish that the other forum is "clearly or more distinctly
appropriate"—this standard recognising that jurisdiction in England has been founded
as of right;168
(d)the court will look first to see if there are factors connecting the dispute to
another forum making that the "natural forum", these "connecting factors" including
matters affecting convenience, expense, place of parties’ residence or business and
governing law;
(e)normally, another national forum is shown to exist (this principle encompassing
the case where there is no natural forum); 169
(f) if a natural forum other than in England is shown to exist, normally a stay will
be granted unless in the circumstances of the case as a whole justice required that it be
not granted.
In considering (f) relevant factors are, for example, it being shown "by cogent
evidence" that the claimant will not obtain justice in the other forum, and consideration
of the relative advantage and disadvantage to the parties in invoking English
jurisdiction. In Lord Goff’s view a stay should not be refused simply because of such
advantages as the availability in England of higher damages, more effective discovery,
power to award interest or a more generous limitation period. However, a stay which
would mean that the claimant would obtain only an empty judgment provides a powerful
factor against it. 170 Further if the claimant would be shut out in the foreign forum
because of a time bar it should not be granted if the claimant did not act unreasonably in
failing to commence proceedings in the foreign forum. A stay could be granted on
condition that any foreign time bar was waived. In general if a stay is granted it would
"nnot normally be wron"’ to allow a claimant to keep the benefit of security obtained i n
this country by commencing proceedings here.
12.99 These principles provide a framework for a balanced regime of
"appropriate forum". The curious view that a juridical advantage for the claimant should
be a strong, if not a conclusive, factor leading to a refusal of stay is replaced by a
balancing of the relative advantage to each party. 171 The burden put on the defendant
takes into account, without unduly emphasising, the establishment of jurisdiction in this
country by the claimant, particularly where t he basis of the jurisdiction is a relatively
slight connection. A non-exclusive jurisdiction clause is a weighty factor. 172 The role of
the appellate court remains restricted to ensuring a correct approach in principle or that
the judge was not plainly wrong in applying the principle. 173
12.100 It would appear that on the approach in The Spiliada any inquiry into such
an advantage would be to ascertain whether any otherwise appropriate forum should
nevertheless not be supported (a third stage). 174 Doubt has been expressed in the Court
of Appeal about the defensibility of (e.g.) allowing a claimant to proceed in an
inappropriate forum "because he has acted reasonably (for instance) to differential time
bars applicable in the candidate jurisdictions" . The Court, however, acknowledged that
such was the law. 175
12.101 The factors relevant to adjudging whether there is a natural forum are
various, those linked by Lord Goff simply being examples. So in The Spiliada in the
circumstance of the potentially lengthy and complex litigation the judge was entitled to
treat the existence of a like action concerning another ship (the Cambridgeshire)
involving the same legal advisers on both sides as the crucial point. Further relevant
factors pointing to England were English insurers and governing law. 176
12.102 Relevant factors will vary according to the circumstances of the case but
the important categorisation by The Spiliada is to see the appropriate forum as
essentially based (at the first stage) on connection with the dispute (the natural forum
issue).177 Establishment that connections to foreign courts are of more force than the
English court opens the door to the second stage —consideration of the nature of the
proceedings and factors affecting the parties, such as delay and the level of damages. 178
A natural foreign forum will mean that factors other than "connection" will be for the
claimant to establish as grounds for refusal of stay. Where there is no natural forum
either in England or abroad the factors remain relevant but it is then for the defendant to
make the case for a stay on those factors. 179 In any event if a stay is granted it may be
subject to conditions or undertakings, such as not to take any point as to time bar o r
matters relating to limitation or costs. 180
12.103 As said in the development of the principle it would be wrong to enter into
a general comparison of procedures. 181 It would also be wrong to exercise jurisdiction
simply to identify particular issues according to case management procedure and
possibly retain jurisdiction over some. That would follow if a stay was refused. 182 The
availability of the forum should, it would seem, be a factor in the second stage rather
than considered in the context of "connections". However, it may be that there is a
difference only where the case turns on where the onus of proof lies. 183 Concurrent
proceedings
12.104 The issues as to forum conveniens are identical where there are
proceedings in a foreign court by the defendant in the English proceedings and where
there are no proceedings but the foreign court is said to be more appropriate. 184 The
existence of the proceedings may be a relevant factor, depending for its weight on the
stages reached. It does not, however, shift the burden of proof to the claimant in the
English proceedings. 185 Nor is it sufficient that the defendant showed that the forum in
which proceedings had started was a (as distinct from the) natural forum. 186 Limitation
of liability
12.105 Apart from obligations (a) to contracting States within the framework of the
Limitation Convention 1976 and (b) to recognise judgments of Member States under EC
Regulation 44/200 1, the Brussels and Lugano Conventions 187 it is unlikely that an
English court would simply recognise a limitation decree of another state. Limitation
has traditionally been seen as a matter for the forum, particularly where the limit
otherwise applicable differs. 188
12.106 Two basic principles appear to be the right of the shipowner to select the
forum for limitation action and the relationship of the limitation and liability actions. As
to the first the courts have on occasion declined to grant negative declarations to
liability claimants. 189 As to the second there are statements that limitation and liability
are separate issues, and perhaps, to the contrary, that they are related. 190
12.107 In practice, as is shown by the cases under the Brussels Convention ( see
12.50), they will be related insofar as there may be any risk of an overlap of factual
findings. The extent of the relationship depends on the number of live issues, and, it may
be argued, once liability is accepted any limitation issue is separate and consequ ential.
The benefit of deciding all issues in the same state is not to be ignored, any more than
the initial right of a shipowner to select the forum. In essence any question of stay will
depend on The Spiliada approach with relevant factors including the place of any
liability proceeding. 191
12.108 The relevance of the Limitation Convention 1976 . In 1998 in The Herceg
Novi and Ming Galaxy 192 the Court of Appeal reversed a decision by Clarke J. that the
application of the Limitation Convention 1976 constit uted a ground for refusal of stay of
limitation proceedings even though the natural forum for the substantive claim and
quantum was Singapore. In the view of the Court of Appeal the Convention was simply
a reflection of the views of the State parties and ( in the terms of The Spiliada
principles) it was impossible to say that substantial justice was not available in
Singapore through the Limitation Convention 1957. So at least as between the 1957 and
1976 Convention states the difference in the limits is irr elevant to the weighing of
factors relevant to the substantive claim. 193 Forum non conveniens and jurisdiction
agreements
12.109 In a sense these two grounds are variations on a theme. Both are essentially
matters of discretion for the judge of first insta nce, and it may be argued that a
jurisdictional agreement is but an additional factor in an overall consideration of
appropriateness. Conversely, it may be said that such an agreement provides the
opposite starting point from the argument of appropriatenes s. An agreement should be
upheld; where a stay is requested on grounds of appropriateness the onus is on the
defendant to justify it.
12.110 The English law starts with the latter view but if the forum selected is
equated with the natural forum the issues become similar. Yet differences in the factors
elucidated in respect of each may remain. So a different attitude may be justifiably
adopted in respect of limitation of liability or time bars ( see supra). It is accepted that
where it is contractually agreed to litigate in a particular forum (exclusively or not) it is
not open to one party to raise matters foreseeable at the time of contract in support of a
stay. 194 5. Issue Estoppel and Cause of Action Estoppel
12.111 Once there has been a judgment by an En glish court of an action before it,
either (if successful) the cause of action becomes merged in the judgment or (if
unsuccessful) the plaintiff is estopped by the judgment from relitigating it (cause of
action estoppel). Where an issue (or condition) in a cause of action is resolved by
judgment or a matter should have been raised in earlier proceedings the issue resolved
or not raised cannot be litigated in any other action dependent upon it. Thirdly, litigation
may be an abuse of process if the matter sho uld have been raised in earlier proceedings.
12.112 A foreign judgment may lead to a cause of action estoppel, issue
estoppel195 or abuse of process in the sense that issues should have been raised in
earlier proceedings. The principle of merger of judgments does not apply. The Civil
Jurisdiction and Judgments Act 1982, section 34, provides that no proceedings may be
brought by a person in England on a cause of action in respect of which a judgment has
been given in his favour in proceedings between the same parties or their privies. It was
held in 1993 by the House of Lords in The Indian Grace 196 that this section does not
limit jurisdiction but simply provides a defence —a defence which may be defeated by
estoppel, waiver or contrary agreement. When the case again reached the House of
Lords, it was held that it was irrelevant whether the actions were in personam or in rem —
both types of actions were brought against defendants —either the person liable or the
person having an interest in the ship. So the issues remained of identity of parties and
estoppel (see Chapters 10, 18). 6. Sovereign Immunity A. Foreign governments
12.113 A claim to immunity must be decided as a preliminary issue —it is not
enough to show a good arguable case for an exception to the general principle. 197 The
general framework
12.114 The long-established immunity from legal proceedings of foreign
"sovereigns" can be divided into:
(a) immunities conferred on sovereigns pers onally and diplomatic officials whose
role is perhaps seen as an extension of that of the sovereign (diplomatic immunity); 198
(b) immunities of state entities from civil proceedings, concerning persons or
property in which there is a state interest.
It is with the latter, as they apply to maritime claims, that this work is concerned.
The rules of state immunity from civil proceedings within the United Kingdom are now
to be found in the State Immunity Act 1978 which came into operation on 22 November
1978.199
The law prior to 22 November 1978
12.115 English law traditionally followed the theory of absolute as distinct from
restricted immunity. Once it was decided that the act on which the action was based was
a sovereign act the doctrine applied. 200 Unless a foreign sovereign submitted to the
jurisdiction 201 English law would not allow it to be impleaded or "by its process
whether the sovereign is a party to the proceedings or not seize or detain property which
is his or of which he is in possession or c ontrol".202 Insofar as the claim was aimed at
assets (and, in particular, through an action in rem)203 the central issue was the
connection between sovereign and the asset. But once that was sufficiently established
or if the action involved only personal liability, the role of the sovereign was
considered irrelevant—it mattered not whether the act leading to the claim was truly
"governmental" or purely "commercial". This "absolute" view was replaced by the
restrictive view by the House of Lords in decisions of 1975 (in respect of the action in
rem)204 and of 1981 (in respect of the action in personam).205
12.116 The adoption of the restrictive theory means the creation of a "boundary"
problem in addition to that of the scope of a sovereign —the dividing line between
governmental and trade acts. In 1981 in The I Congreso del Partido the difficulty posed
by the division was compounded by the claim that the breach of the trading activity wa s
a governmental act. The difficulty was reflected in the division of judicial opinion, and
the criterion advanced did little more than state the two types of act:
"The conclusion which emerges is that in considering, under the ‘restri ctive’ theory
whether state immunity should be granted or not, the Court must consider the whole
context in which the claim against the state is made, with a view to deciding whether the
relevant act(s) upon which the claim is based, should, in that contex t, be considered as
fairly within an area of activity, trading, or commercial, or otherwise of a private law
character, in which the state has chosen to engage, or whether the relevant act(s) should
be considered as having been done outside that area, and within the sphere of
governmental or sovereign activity." 206
State Immunity Act 1978
12.117 The State Immunity Act 1978 207 takes as its starting-point the general
proposition that a "State is immune from the jurisdiction of the court of the United
Kingdom"208 and then sets out a number of exceptions. 209 It contains particular rules for
maritime claims. The structure is qualified by the power by Orders in Council (i) to
reduce the immunities under the Act if they exceed those accorded to the United
Kingdom by that state and (ii) to extend the immunities if they are less than required by
any Convention to which the state and the United Kingdom are parties. 210
12.118 A state includes a sovereign in his public capacity, a government and any
department of a government, but not a "separate entity" which is "distinct from the
executive organ of the State and capable of suing or being sued". Such a separate entity
is immune if the relevant proceedings relate to anything done by it in the exercise of
sovereign authority and if as a state it would have been immune. 211 The task of dividing
government departments from separate entities remains —unhindered by any statutory
aid.
12.119 There are restrictions on remedies when a state is impleaded. 212 In
particular, injunctions and specific performance can be obtained only with the written
consent of the state, 213 and state property not intended or being used for commercial
purposes may not be subject to any process for the enforcement of a judgment or
arbitration award or in an action in rem for its detention or sale. 214 Exceptions to
immunity are:
12.120 Submission to jurisdiction. This can be by agreement, institution of
proceedings, intervention or taking any step in proceedings. A choice of law clause is
not submission and simply claiming immunity is not a step in proceedings in assessing
whether there has been submission. 215
12.121 Submission to arbitration. Subject to any contrary provision a written
arbitration agreement deprives the state of any immunity claim in respect of court
proceedings relating to the arbitration. 216
12.122 Commercial transactions and contracts to be performed in the United
Kingdom.217 There is no immunity for such transactions or such contracts unless all the
parties to the dispute are states or the parties have agreed to immunity.
12.123 Contracts of employment between a state and an individual made in the
United Kingdom or where the work is to be performed here. 218 Parties may exclude
this provision by written agreement unless the law of the United Kingdom requires the
proceedings to be brought before a United Kingdom court. 219 It has limited application
only where the individual is a national of the state or where the individual is neither a
national of the United Kingdom nor habitually resident therein.
12.124 Death or personal injury or damage to or loss of tangible property
caused by an act or omission in the United Kingdom. 220
12.125 Interest in and possession or use of immovable property in the United
Kingdom.221
12.126 Claims relating to patents, trademarks, designs or plant breeders’ rights,
copyright or business or trade names connected with the Un ited Kingdom in a
specified way.222
12.127 Proceedings relating to a state’s membership of corporate,
unincorporated body or partnership connected as specified with the United Kingdom
and which has members other than states being proceedings between the state and the
body, or other members. 223
12.128 Proceedings relating to liability for value added tax, customs or excise
duty or agricultural levy or rates in respect of premises occupie d for it for commercial
purposes.224
12.129 Admiralty proceedings. See infra.
Maritime Claims
12.130 Maritime claims are treated as a distinct category by the Act in that they are
the subject of a particular section—section 10. The effect is that the general immunity
rules are bolstered in respect of maritime claims by further removal of immunities
based on the commercial use of ships or other property. So, in respect of a maritime
claim, a state may lose its immunity either because of a commercial transaction or
because of a commercial use of a ship.
12.131 Section 10 encompasses all claims which are or would be the subject of
Admiralty proceedings. 225 It applies the restrictive theory of immunity to actions in
personam and actions in rem in relation to a ship or property belonging to a state, which
is in its possession or control or in which it claims an interest. 226 Subject to a special
rule for cargo, a state is therefore not immune if the ship or other proper ty was, when
the cause of action arose, 227 in use or intended for use for commercial purposes. 228Where
an action in rem is brought against cargo, immunity is lost only if both cargo and carrying
ship are "commercial": where an action in personam is brought in respect of cargo it is
enough if the carrying ship is "commercial". It is somewhat difficult to appreciate
why, in relation to a claim in connection with cargo, immunity depends not on the
commercial character of the cargo but of the carrying ship. The Act provides for sister
ship actions and a state loses its immunity in such actions only where both ships are
"commercial". 229
12.132 An argument advanced (and accepted by some of the judges) in The I
Congreso del Partido was that even if the relevant activity is commercial there may be
immunity still if the act giving rise to the claim is governmental (such as statutory
requirement). It seems as if this contention has only a modified place in the statutory
framework which in relation to maritime claims focuses on the commercial or non -
commercial use of the ship. In that context a government action must therefore have the
effect of changing the use of the ship for it to create immunity in a maritime claim
connected with that ship.
12.133 The Brussels Convention Relating to State Owned Ships of 1926 equates
claims in respect of the operation of such ships or cargoes carried in them to those of
privately owned ships—subject to certain immunities granted to vessels employed
exclusively on government and non-commercial service when the cause of action arose.
In regard to states party to the Brussels Convention 1926 therefore, the State Immunity
Act allows the text of the earlier Convention to control. 230 In relation to those states the
rule is simply that a commercial transaction or a commercial use of a ship will remove
immunity in respect of claims relevant to the transaction or ship. B. Government of the
United Kingdom
12.134 The immunity from suit of the Crown as the sovereign i s rooted in
history.231 That immunity was extended from the sovereign to government, but as
government increased its commercial activities so the net of immunity became at once
too broad and, particularly because of the commercial nature of the activities,
anomalous.
12.135 The ability to pursue a claim in contract or recover property in respect of
claims other than against the sovereign in person was until 1948 available through a
petition of right. This procedure was abolished by the Crown Proceedings Act 1947 and
an action is now available largely as against any other defendant. General rules of
Crown liability in tort (both personal and governmental) are now set out in the Crown
Proceedings Act 1947. 232 The applicability of statutes to the Crown depends on the
particular statute. 233 "Crown" liability "in personam"
12.136 Apart from personal liability of the sovereign, 234 Crown liability in the
sense of governmental liability is largely 235 equated to that of the private individual.
However, unless otherwise provided the Merchant Shipping Acts are not applied to Her
Majesty’s ships (see Merchant Shipping Act 1995, section 308). Provisions applying to
Her Majesty’s ships are those relating to
(i) limitation of liability in accordance with the Limitation of Liability Convention
(as to which see Chapter 24);
(ii) apportionment of liability where damage or loss is caused to a ship or ships
through the fault of more than one ship;
(iii) time limits for proceedings to enforce any claim "or lien" in respect of damage
or loss caused by the fault of a ship (as to which see Chapter 11);
(iv) salvage claims 236 (as to which see Chapter 2);
and the provisions relating to limitation of liability of harbour, dock and canal
authorities apply to the Crown.
12.137 Further the provisions relating to the prevention of oil pollution and
offences in that regard and civil liability for oil pollution under the 1992 Liability
Convention (as to which see Chapter 2) apply to "government ships" other than (in the
case of prevention of oil pollution) ships of or employees for the purposes of Her
Majesty’s navy or (in the case of civil liability) any warship or a ship being used by the
government for other than commercial purposes. 237
12.138 Thirdly, regulations may be made for the registration under the Merchant
Shipping Act 1995 of government ships not otherwise registrable and the application of
the Act (or parts) to them. 238 "Crown" liability "in rem"
12.139 The Crown Proceedings Act 1947 provides in section 29(1):
"Nothing in this Act shall authorise proceedings in rem in respect of any claim
against the Crown, or the arrest, detention or sale of any of Her Majesty’s ships or
aircraft, or of any cargo or other property belonging to the Crown, or give to any person
any lien on any such ship, aircraft, cargo or other property." 239
12.140 The Supreme Court Act 1981, section 24(2)(c), provides that nothing in the
provisions conferring Admiralty jurisdiction:
"shall authorise proceedings in rem in respect of any claim against the Crown or
the arrest, detention or sale of any of Her Majesty’s ships or subject to section 2(3) of
the Hovercraft Act 1968, Her Majesty’ s hovercraft, or of any cargo or any other
property belonging to the Crown". 240
The effect of such negative provisions is to require references to the rules existing
prior to the statutes. This hardly makes for clarity in the legal rules, 241 and the failure to
enact a positive framework seems as difficult to defend in this context as any other.
While immunity of the Crown from suit in rem is well established,242 the extent of that
immunity continues to depend on pre-statute rules.
12.141 The operation of the exclusion of in rem proceedings by the Crown
Proceedings Act 1947 in regard to salvage claims is expressly only insofar as it is
consistent with the Salvage Convention 1989. 243 That Convention applies to state
owned or operated noncomm ercial vessels only insofar as each state applies it.
Likewise no Convention provision can be used as a basis for the "seizure, arrest or
detention" or proceedings in rem against non-commercial cargo owned by the state and
entitled to sovereign immunity. As a consequence the statutory prohibition on the arrest
and detention is, it would seem, limited in respect of salvage operations to non -
commercial Crown ships or cargo. The "Crown" and "Crown property"
(i) The Crown
(a) The Crown Proceedings Act 1947 an d Supreme Court Act 1981
12.142 Neither the Crown Proceedings Act 1947 nor the Supreme Court Act 1981
defines the Crown. 244 In the words of Lord Denning M.R. the phrase is "elastic". 245 It
seems accepted that it generally includes government departments, officers, servants and
agents of the Crown. 246 Departments and other bodies falling within the "Crown" for the
purpose of the Crown Proceedings Act 1947 are listed by the Treasury. 247
(b) The pre-statute framework
12.143 It would seem unlikely that the elasticity of the label "The Crown" will
differ in extent whether the issue arises under positive statutory provisions or as regards
an excluded "in rem" claim. It would seem unlikely that, subject to any specific statutory
provision, the definition of the Crown (such as it is) would not be accepted as uniformly
applicable.
(ii) Crown property
(a) Ship s
12.144 "Her Majesty’s ships", for the purpose of the negative statutory provisions
of the Crown Proceedings Act 1947 and the Supreme Court Act 1981, are defined as:
" . . . ships of which the beneficial interest is vested in His Majesty or which are
registered as Government ships for the purposes of the Merchant Shipping Act 1995, or
which are for the time being demised or subdemised to or in the exclusive possession of
the Crown, except that the said expression does not include any ship in which His
Majesty is interested otherwise than in right of Hi s Government in the United Kingdom
unless that ship is for the time being demised or subdemised to His Majesty in right of
His said Government or in the exclusive possession of His Majesty in that right . .. " 248
Crown immunity has two connected but separa te aspects. The immunity from
proceedings in rem is straightforward in that such proceedings are not available for any
claim against the Crown. But "Crown property" may be the focus of an action not aimed
at the Crown (as, for example, where the Crown has chartered a ship or has engaged in
a charter of a Crown ship). Further, both the Crown Proceedings Act 1947 and the
Supreme Court Act 1981 specifically prohibit the "arrest, detention or sale" of Crown
property. It is, therefore, necessary both to define " Crown" and "Crown property" .
12.145 It seems clear that for a ship to be considered as a Crown ship apart from
the statute the Crown must exercise "dominion" and control. A demise charterparty
would give that control, while a time or voyage charterparty w ould not.249 Whether a
requisition gave it depends on the terms of the requisition. 250 The statutory provisions of
the Crown Proceedings Act and the Supreme Court Act as to Her Majesty’s ships are,
therefore, in line with the earlier authority, although it may be arguable that the reference
to "exclusive possession" as an alternative to "demise" extends the scope of the
definition.251 Save for salvage claims whether or not the ship is used for commercial
purposes appears to be irrelevant both apart from and under the statute.252
(b) Cargo and other property—"belonging to the Crown"
12.146 There is no reason to suppose that the phrase in the Crown Proceedings Act
and Supreme Court Act indicates any different connection between property and Crown
than is relevant to ships—ownership by or (probably) bailment to the Crown would
suffice to bring the property under the Crown umbrella. 253 7. Jurisdiction Restrictions
Relating to Specific Types of Claim
12.147 Restrictions may be imposed through the scope of the claim itself, 254
inability to bring a claim (i.e. immunity from suit), 255 or in jurisdiction terms. The
consequences of such restriction are identical in that no action will lie but the
consideration of whether it will lie is based on different elements. I t is only the
restriction that focuses on the power of the court to consider whether there is a claim
that is relevant in the present context. (i) Nuclear activities
12.148 A claim arising from a breach of duty imposed by the Nuclear Installations
Act 1965256 not to cause injury or damage in connection with occurrences involving
nuclear matter specified in the Act does not "give rise to any lien or other right in
respect of" a ship. The provisions of the Ad ministration of Justice Act 1956 relating to
action in rem and maritime liens were excluded from such claims. 257 Like provisions of
the Supreme Court Act 1981 do not appear to be excluded. Nevertheless, there being no
right in respect of a ship, there can be no action in rem. (ii) Claims arising out of Oil
Pollution or Carriage of Hazardous or Noxious Substances by Sea (HNS Convention)
(a) Oil Pollution
12.149 Reflecting the Oil Pollution Liability Convention 1992 there is no
jurisdiction in actions against the shipowners in relation to damage suffered or
preventative measures taken in a Convention state unless there has been such damage or
measure in the United Kingdom. 258 (b) HNS Convention
12.150 Under the Convention provisions (as set out in the Merchant Shipping Act
1995 but not yet in force) actions in relation to damage suffered or preventative
measures taken in a State party may be brought in the courts of that state. Actions for
compensation in relation to damage suffered or preventative measures taken outside the
territory of any state may be brought only in the state of registration of the relevant ship
or in which the habitual residence or owner has his principal place of business. 259 (iii)
Trespass to foreign land
12.151 Such actions have long been held to be outside the jurisdiction of the
English courts and in 1978 the House of Lords affirmed that the general rule extended to
any action raising the issue of title, possession or simp ly damages.260 But this rule did
not apply in maritime law and such actions as, for example, claims in respect of damage
caused by collision between a ship and a pier are subject to the general rules of actions
in rem and in personam.261
12.152 The Civil Jurisdiction and Judgments Act 1982, section 30(1), provides
that jurisdiction:
"to entertain proceedings for trespass to, or any tort affecting immovable property
shall extend to cases in which the property in question is situated"
out of the part of the United Kingdom in which the court is situated
"unless the proceedings are principally concerned with a question of the title to or
the right to possession of that property".
Such jurisdiction is subject to EC Regulation 44/200 1 and the Brussels and Lugano
Conventions and special rules set out in the Act applying the Regulation to intra United
Kingdom disputes. As a consequence 262 the jurisdiction in relation to land in a Member
State is that providing for exclusive jurisdiction in Article 16(1) —a claim having as its
object rights in rem or a tenancy.263 (iv) The Rhine Navigation Convention 1868
12.153 The Supreme Court Act 1981, section 23, provides:
"23. The High Court shall not have jurisdiction to determine any claim or question
certified by the Secretary of State to be a claim or question which, under the Rhine
Navigation Convention, falls to be determined in accordance with the provisions of that
Convention; and any proceedings to enforce such a claim which are commenced in the
High Court shall be set aside."
The Convention was denounced by the United Kingdom on 31 December 1993. 264
(v) Foreign ships265 Wages actions
12.154 "The ancient practice was that without the express consent of the foreign
consul the Court would not exercise jurisdiction" in wages claims in respect of foreign
ships.266 However, in the nineteenth century the practice was modified to require notice
of any claim to be given and (lacking protest) the court heard the case. 267 If there was
protest, the court would consider the protest and its grounds and exercise discretion
whether to proceed. 268
12.155 The modern framework 269 is contained in the Consular Re lations Act
1968.270 Her Majesty may by Order in Council exclude or limit the jurisdiction of a
United Kingdom court "to entertain proceedings relating to the remuneration or any
contract of service of" the master or crew of any ship "belonging to" a state specified in
the order except where a consular officer of that state has been notified and has not
objected. 271 Orders have been in respect of several states —some in terms of ships
registered (or the equivalent) in the appropriate state and some in terms of the ships
flying the flag of the appropriate state. 272 All make the power to hear a claim within the
statutory provision dependent on notification to the consul, lack of objection within two
weeks of such notification and a statement to this effect incl uded in the details of
claim. 273 The requirements of notice to the consul were a central feature of the
nineteenth century line of authority emphasising the discretionary power to hear wages
actions in respect of foreign ships. It seems doubtful, therefore , whether any
discretionary power survives apart from that related to the statutory provisions and that
generally applicable through the principle of forum conveniens. Title to or possession
of a foreign ship
12.156 Old authorities support restrictions on jurisdiction to hear a dispute
between foreigners regarding the title to a right to possession of a foreign ship —in
particular (as with wages actions) contingent upon the consent of the parties or a
representative of their state or states. 274 However, it seems clear that in a modern
context any such restriction is to be considered as part of a general rule of forum non
conveniens.275 8. Abuse of Process
12.157 The High Court has an inherent power to prevent abuse of its process, and
the Civil Procedure Rules expressly provide that a statement of case may be struck out
on this ground. 276 "Abuse of process" is an undefinable term but has been used to
prevent the demand of excessive security as a condition for the release of a ship from
arrest,277 relitigation of an issue already investigated and decided if the relitigation is a
collateral attack on the decision, 278 institution of proceedings in a foreign court to
harass a party to English proceedings, 279 to prevent the exercise of the power to arrest
in furtherance of arbitration proceedings, 280 and to strike out a discontinuance of
proceedings where admission of liability and interim payments has been received and
foreign proceedings then instituted. 281 It is an abuse of process to issue a writ on the off -
chance that grounds of claim will be discovered —but not if no action will be pursued
until the chances of success are assessed. 282
1. As to initial proceedings see Chapter 4, as to anti suit injunction see Chapter 25,
and as to forum non conveniens 12.9.
2. See e.g. (control through prohibiting a new action) CMR Article 31.2
prohibiting two actions whether both be substantive or remedial claims. See Merzario
v. Leitner [2001] 1 Lloyd’s Rep. 490. Compare Royal and Sun Alliance Plc v. Hi Tec
Electronics [2005] EWHC 1408. Contrast the prohibition under the Arrest Convention
of two arrests of ships (See the Maciej Rataj (fn. 55) paras. 27, 28).
3. [2004] 2 Lloyd’s Rep. 169. As to a preaccession injunction see n. 6 and Chapter
25.
4. So it has been held by the English courts that it does not apply to arbitration. See
Chapters 13, 25.
5. So having obtained a judgment there is an obligation to enforce that rather t han
seek to relitigate (De Wolf v. Cox [1977] 2 CMLR 43 and see Chapter 28).
6. As to a preaccession anti suit injunction see Advent Capital v. Ellinas [2005]
EWHC 2005 and Chapter 25.
7. [1997] All E.R. (EC) 913.
8. Re Harrods (Buenos Aires) Ltd (No. 1) [1991] 4 All E.R. 334; The Po [1991] 2
Lloyd’s Rep. 206; Eli Lilly and Co. v. Novo Nordisk A/S [2000] I.L.Pr. 74. See also
Sarrio SA v. Kuwait Investment Authority [1997] 1 Lloyd’s Rep. 113 (C.A.) (not
considered in H.L.); Haji Ioannou v. Frangos [1999] 2 Lloyd’s Rep. 337. Ace
Insurance SA-NV v. Zurich Insurance Co. [2001] 1 Lloyd’s Rep. 504 (C.A.)—but there
have been some contrary decisions. See the review in Travelers Casualty Co. v.
Arkwright [2004] EWHC 1704—with that decision treating Re Harrods as binding.
9. In Re Harrods (fn. 8), and Travelers Casualty Co. the defendant was domiciled
in England in Ace (concerning the Lugano Convention) the defendant domiciled in
Switzerland in Eli Lilly the defendant was domiciled in Denmark and there was a
jurisdiction agreement that ultimately the matter was for the English courts.
10. [2005] 1 Lloyd’s Rep. 452. For comments see [2005] LMCLQ 363, 378.
11. The court declined to respond to questions not related to the facts of the case—
so areas for possible continued application of forum non conveniens are where related
proceedings are pending before the court of a non -member state, a Convention confers
jurisdiction on such a court or there is a subject matter connection similar to that which
would confer exclusive jurisdiction under the Regulation. But it should be emphasised
that the principle of Owusu is reliance on the Convention structure and the situations
posed would probably be resolved by princi ples analogous to that. As to jurisdiction
agreements see 4.38.
12. i.e. concurrent at the date of the judgment considering the issue (see Grupo
Torras [1995] 1 Lloyd’s Rep. at p. 418). So they do not apply where proceedings in one
state have been concluded prior to the court in another state being seised of an action.
See Gramlesraden plc v. Casa De Suecia SA [1994] 1 Lloyd’s Rep. 433.
13. See SA CNV v. S GmbH [1991] I.L.Pr. 588 (Oberlandsgericht Koblenz) —it
may be arguable that actions may be treated as consecutive according to the hours when
lodged. As to multi defendants see infra. In the case at issue the court held that the
question of irreconcilable judgments had to be resolved by Art. 27(3) —the power not to
enforce a judgment on that ground (see Chapter 28). As to multi defendants see infra. So
they may not apply to actions started on the same day.
14. Overseas Union Insurance Ltd v. New Hampshire Insurance Ltd [1992] 1
Lloyd’s Rep. 204 (ECJ). As to Art. 4 see Chapter 4.
15. Exclusive Regulation jurisdiction being expressly set out in Art. 22 (categories
of cases connected by their nature to a particular state) or Art. 23 (jurisdiction
agreements)—but Art. 23 being subject to Art. 24 (appearance) ( see Chapters 4, 5).
16. Provisional measures jurisdiction may be based on substantive jurisdiction or
Art. 31. See Chapter 14.
17. See e.g. The Nordglimt [1987] 2 Lloyd’s Rep. 470 (Hobhouse J.); The
Sargasso [1994] 2 Lloyd’s Rep. 6 and infra; Rank Film Distribution Ltd v. Lanterna
Editrice Svl and Another [1992] I.L.Pr. 58 (English H.C.); and see Miles Platt Ltd. v.
Townroe Ltd. [2003] 1 All E.R. (Comm.) 561.
18. See Virgin Aviation Service Ltd v. CAD Aviation Services [1991] I.L.Pr. 79;
Banque Cantonale Verdoise v. Waterlily Maritime Inc. [1997] 2 Lloyd’s Rep. 347.
19. See Messier Dowty v. Sabena SA [2000] 1 Lloyd’s Rep. 428 (C.A.) and
Chapter 25.
20. See The Maciej Rataj [1995] 1 Lloyd’s Rep. 302 (ECJ) and infra. But,
distinguish a defensive assertion in response to a claim. It has been held that Arts 21, 22
of the Brussels Convention (Arts. 27, 28 of the Regulation) will not apply where a
defendant asserts a right of set off or retention in a state other than that in w hich
proceedings are against him—there is no bringing of an action (Re Termination of an
Agency Contract [1998] I.L.Pr. 815 (Munich (C.A.)).
21. [1994] 1 Lloyd’s Rep. 505. See also IP Metal Ltd v. Ruote (No. 2) [1994] 2
Lloyd’s Rep. 560.
22. In that case the jurisdiction agreement was subject to English law.
23. Later cases consistently construed the phrase "exclusive jurisdiction" in Art. 17
of the Brussels Convention as meaning exclusive of other Convention bases. See e.g.
Insured Financial Structures Ltd. v. Tychy SA [2003] 2 W.L.R. 656 (C.A.). That
approach seems to have less force on the amended wording of Art. 23 of the Regulation
—but not to be entirely impossible for there is still no statement of that which is
excluded.
24. Case 116/02 [2004] 1 Lloyd’s Rep. 222. For applications by an English court
see J.P. Morgan Europe Ltd v. Primacom [2005] EWHC 508; Bank of Tokyo-
Mitsubishi Ltd v. Baskan Gida Sanayi Ve Pazarlama AS [2004] 2 Lloyd’s Rep. 395.
25. As inquiry into "real consent" of the parties where a clause is said to be
incorporated into a contract ( see para. 50) and (e.g.) AIG Europe SA v. QBE
International Insurance Ltd. [2001] 2 Lloyd’s Rep. 268; Siboti K/S v. BP France SA
[2003] 2 Lloyd’s Rep. 364.
26. See Haji Ioannou v. Frangos [1999] 2 Lloyd’s Rep. 337 citing with approval
Sarrio SA v. Kuwait Investment Authority [1997] 1 Lloyd’s Rep. 113 (C.A.) approving
Mance J. [1996] 1 Lloyd’s Rep. 650; The Xin Yang [1996] 2 Lloyd’s Rep. 217 (Clarke
J.). As to the standard of proof of non-domicile being "the good arguable case" see Haji
Ioannou and Chapters 4, 9.
27. Cases within Arts 23 and 24 must also lie outside Art. 4 as Convention
jurisdiction is conferred on grounds other than the defendant’s domicile in a contracting
State (see Chapter 5).
28. See Haji Ioannou v. Frangos (fn. 21).
29. As would be discontinuance in the court first seised simply to continue
proceedings in the court second seised. See e.g. International Nederlandes Aviation
Lease BV v. Civil Aviation Authority [1997] 1 Lloyd’s Rep. 80.
30. See The Nederlandes case (fn. 29) and cases there cited.
30a. See Royal and Sun Alliance (fn. 2).
31. See Gasser v. MISAT Case C–116/02 ECJ [2004] 1 Lloyd’s Rep. 222 and
above.
32. I.e. so closely connected that it is expedient to hear and determine them
together to avoid the risk of irreconcilable judgments.
33. As provided by Art. 30 (see 12.24). Under the Brussels and Lugano
Conventions this was a matter for national law.
34. (Decided under the Brussels Convention) AGF v. Chiyoda [1992] 1 Lloyd’s
Rep. 325 applying Zelger v. Salinitri [1984] ECR 2397 and Dresser v. Falcongate
[1991] 2 Lloyd’s Rep. 557 (as to which see infra). See also Grupo Torras SA v. Sheikh
Fahad Mohammed [1995] I.L.Pr. 667 (C.A.)—the principle surely applicable to the
Regulation.
35. The Happy Fellow [1998] 1 Lloyd’s Rep. 13, Evialis SA v. SIAT [2003] 2
Lloyd’s Rep. 311.
36. 129/83 [1984] ECR 2397; [1985] 3 CMLR 366.
37. Zelger v. Salinitri 129/83 [1984] ECR 2397.
38. See Dresser UK Ltd v. Falcongate Freight Management Ltd [1991] 2 Lloyd’s
Rep. 557 (C.A.) as applied in Grupo Torras SA v. Al Sabah [1995] 1 Lloyd’s Rep. 374.
This refers to pendency at the moment the court is seise d and requires a court of a
contracting State to consider when in accordance with the law of the other state the
action became definitely pending, any procedural consequence being irrelevant ( Grupo
Torras SA v. Al Sabah [1995] I.L.Pr. 667 C.A.). But it doe s not necessarily mean
service of a document, but insofar as a legal system links the two this will depend as
between EU States on Regulation 1348/2000 on service of documents. See e.g.
Tavoulareas v. Tsavliris [2004] 1 Lloyd’s Rep. 445 (C.A.).
39. See Gartner Electronic GmbH v. Basch Exploitatie Maatshappij BV Case C-
111/01 ECJ.
40. Dresser UK Ltd v. Falcongate Freight Management Ltd [1991] 2 Lloyd’s
Rep. 557 (C.A.) as qualified by The Sargasso [1994] 2 Lloyd’s Rep. 6.
41. Underlined by the power to award interim relief for foreign proceedings ( see
Chapter 14).
42. The Freccia Del Nord [1989] 1 Lloyd’s Rep. 388. As to the need for arrest for
jurisdiction in an action in rem under the Conventions see Chapter 10.
43. Thus resolving the problem perceived in The Nordglimt [1987] 2 Lloyd’s Rep.
470 but resolved through construction of Arts 21, 22 and the Arrest Convention.
44. But it underlines the focus on the time before the defendant has put arguments —
thus supporting the view that the nature of the defence is irrelevant to Art. 27 ( see
Gantner fn. 39) at paras 28, 29.
45. The emphasis on the initiating document seems to rule out a court being seised
on the arrest (or issue of warrant of arrest) of a ship as may be po ssible under the
Brussels or Lugano Convention (see p. 286).
46. [1995] 1 Lloyd’s Rep. 374.
47. [1995] 1 Lloyd’s Rep. 302.
48. [1996] 1 Lloyd’s Rep. 7. See also Fox v. Taher [1997] I.L.Pr. 441.
49. It is not subverting Art. 27 to authorise service in accordance with the CPR to
obtain chronological jurisdiction over multi defendants but it would be to undermine the
Regulation to exercise a discretion solely to be first seised. Compare Carnoustie
Universal SA v. ITWF [2003] I.L.Pr. 7 with Knauf UK GmbH v. British Gypsum Ltd.
(No. 1) [2002] 1 W.L.R. 907.
50. But not to stay proceedings generally. The duty under the Brussels and Lugano
Conventions is substantively the same.
51. The Maciej Rataj (supra) at p. 47.
52. [1989] ECC 420.
53. See The Linda [1988] 1 Lloyd’s Rep. 175—a view approved generally by the
ECJ in The Maciej Rataj [1995] 1 Lloyd’s Rep. 302.
54. See Gubisch (fn. 52) but not where two different contracts are involved
(Poomac Sprl v. SA Sogoservice [1993] I.L.Pr. 309).
55. [1995] 1 Lloyd’s Rep. 302 affirming the view taken by the C.A. —see [1992] 2
Lloyd’s Rep. 552; see also Charman v. WOC Offshore [1993] 2 Lloyd’s Rep. 551; Re a
Clothing Sales Contract (Oberlandsgericht Munchen) [1995 ] I.L.Pr. 72. As to
limitation and liability claims see infra "Related actions".
56. Gantner (fn. 39).
57. See e.g. Haji Ioannou v. Frangos [1999] 2 Lloyd’s Rep. 337 (C.A.); Glencore
International AG v. Metro Trading International Inc . [1999] 2 Lloyd’s Rep. 632;
William Grant v. Marie Brizard [1997] I.L.Pr. 391 (Court of Session).
58. See e.g. Sarrio SA v. Kuwait Investment Authority [1996] 1 Lloyd’s Rep. 650
(Mance J.)—the point not arising in C.A. or H.L.
59. See The Happy Fellow [1997] 1 Lloyd’s Rep. 330—the C.A. not dealing with
the point save for one comment indicating possible disagreement with the conclusion
[1998] 1 Lloyd’s Rep. 13—but it may be arguable (particularly if there is only one
liability defendant that limitation and liability ar e so intertwined that they cannot be
considered as separate). It is accepted that they are related ( see infra).
60. See Glencore International AG v. Shell International Trading and Shipping
Co. Ltd [1999] 2 Lloyd’s Rep. 692.
61. See, for European Court confirmation of these propositions, Maersk Olie and
Gras A/S v. Firma M de Haan Case C–39/02, [2005] 1 Lloyd’s Rep. 210.
62. As (e.g.) where a shipowner is liable "in rem" because the claim attracts a
maritime lien. In essence therefore any distinction would lie in the interest asserted and
not in the method of assertion—whether the action was based on a lien different in
critical elements from liability in personam. Such a focus is consistent with the
domestic code which should be recognized as appropriate for the action in rem (as to
which see Chapters 10, 18).
63. [1995] 1 Lloyd’s Rep. 302.
64. Drouot Assurance SA v. CMI [1998] All E.R. (EC) 483 (ECJ). In the case the
ECJ referred the issue of whether the interest o f a hull insurer was "indissoluble" from
that of the owner and charterer of the vessel.
65. [1998] 1 Lloyd’s Rep. 1.
66. And the claim attracted a maritime lien or (in the case of a purchaser) a
statutory lien in Admiralty where the purchase was after th e issue of the claim form.
67. The change from the Brussels Convention in transfering the restriction to first
instance courts from stay to declining jurisdiction was says the Commission, a
correction of an error in the Brussels Convention. There is also a correction in the
drafting to make it clear that the condition of the power to consolidate applies to the
court first seised (see 12.5). As to the court first seised see Lafiv. Meriden [2000] 2
Lloyd’s Rep. 51.
68. So it would be difficult to envisage a related action if wholly different parties
are involved. See e.g. Societ ´e Montedison ´v. Departement de la Haute Corse
(1977) Court d’Appel Bastia ECD 1 –5.3–B3; Rohstoff Einfuhr v. La Continentale
Nucléaire (1977) Cour Suspencion de Justice Lux) ECD 1 –22–B 1 but perhaps not
impossible (see The Grupo Torras case (fn. 63)). There cannot be related actions
unless the court first seised has jurisdiction over both actions De Pina v. MS Birka
[1994] I.L.Pr. 694.
69. The Maciej Rataj [1995] 1 Lloyd’s Rep. 302.
70. Sarrio SA v. Kuwait Investment Authority [1998] 1 Lloyd’s Rep. 129 (H.L.)
disapproves of the C.A. focus on "primary issues".
71. See e.g. Virgin Aviation Services Ltd v. CAD Aviation Service [1991] I.L.Pr.
79. There can be no partial stay (ibid.).
72. See e.g. The Linda [1988] 1 Lloyd’s Rep. 175 (a collision case in which the
parties were identical but reversed—Art. 21 case and Art. 22 was also considered).
73. Ibid.
74. See Virgin Aviation v. CAD Aviation [1991] I.L.Pr. 79; The Times, 2 February
1990.
75. [1991] 2 Lloyd’s Rep. 557.
76. [1998] 1 Lloyd’s Rep. 13.
77. See also Maersk Olie (ECJ) 2004 (fn. 61) at para. 40. So, for example, a court
may decline jurisdiction in liability proceedings if a court first seised of the limitation
action also has jurisdiction over the liability action. The court first seised has no power
to decline jurisdiction.
78. The Court rejected (i) the arguments that the holding that concurrent liability
and limitation proceedings are not within Art. 21 ( see supra) meant that the French
court was not seised of the latter—the seisin requirement goes to proceedings and not
issues (see supra), (ii) that there was no power to stay multi party limitation
proceedings (see Chapter 24 and infra)—that is conferred by Art. 22.
79. It has been held at first instance that the constitution of a limitation fund is not a
precondition of limitation jurisdiction. See The Western Regent [2005] EWHC 460 and
Chapter 24.
79a. Objections to the jurisdiction on any ground are made through application to
the High Court under CPR Part 11 which sets out the relevant procedural steps. An
application for a stay is not a submission to jurisdiction and should be heard prior to a
challenge to jurisdiction (Williams & Glyn ’s Bank Plc v. Astro Dinamico Compania
Naviera SA [1984] 1 Lloyd’s Rep. 453 (H.L.). Establishing jurisdiction through
acceptance of service of the claim form is not submission to jurisdiction preventing any
plea of forum non conveniens unless the acceptance implied waiver ( Baghlaf Al Zafer
Factory Co. v. Pakistan National Shipping Co. [1998] 2 Lloyd’s Rep. 229).
80. Preserved in Supreme Court Act 1981, s.49(3).
81. Al Naimi v. Islamic Press Agency Inc. [2000] 1 Lloyd’s Rep. 522.
82. Reichhold Norway ASA v. Goldman Sachs International [1999] 2 All E.R.
(Comm.) 174.
83. For an example of how not to draft a clause see The Iran Vojdan [1984] 2
Lloyd’s Rep. 380. The choice of a floating curial law for arbitration does not invalidate
an arbitration clause: The Star Texas [1993] 2 Lloyd’s Rep. 445 and see Chapters 13,
26. For a robust striking out of a "floating" part of a jurisdiction clause see The Frank
Pais [1986] 1 Lloyd’s Rep. 529—but it would be unwise to rely on a judicial initiative
to validate a clause invalid because a party seeks to retain control of the governing law.
84. See The Komninos S [1991] 1 Lloyd’s Rep. 370.
85. See e.g. Sinochem International Oil (London) Co. Ltd v. Mobil Sales and
Supply Corpn [2000] 1 Lloyd’s Rep. 670. The case concerned English and Hong Kong
jurisdiction and because of the circumstances did not raise any question of staying any
party from litigating in Hong Kong, but did raise not only the issue of stay of the English
proceedings but whether service of the claim be permitted out of the jurisdiction. The
proceedings were not stayed and service out was permitted.
86. [2003] 2 Lloyd’s Rep. 364.
87. Gross J. did not restrict his consideration to the bill of lading but also
considered the charterparty.
88. As to arbitration clauses see also Chapter 13.
89. European law (through the EC Regulation 44/2001) is similar in aim to English
law focusing on the need for real consensus ( ibid.—applying and following AIG v. QBE
[2001] 2 Lloyd’s Rep. 268).
90. See Chapter 13.
91. See The Nerano [1996] 1 Lloyd’s Rep. 1—incorporation of charterparty terms
including specifically the arbitration clause together with clause "English law and
jurisdiction applies".
92. Dresser UK Ltd v. Falcongate Freight Management Ltd [1991] 2 Lloyd’s
Rep. 557. So in this as in any context of contractual dispute it may be critical as to
whether the bills of lading are owners’ or charterers’ bills. See The Rewia [1991] 2
Lloyd’s Rep. 325. A decision by a foreign court on the ambit of a jurisdiction clause
creates a "classic case" of issue estoppel ( The Sennar (No. 2) [1985] 1 Lloyd’s Rep.
521) (as to issue estoppel see infra).
93. As under the Carriage of Goods by Sea Act 1992.
94. See e.g. The Dresser case (fn. 85); The Pioneer Container [1994] 1 Lloyd’s
Rep. 593.
95. See e.g. Glencore International AG v. Metro Trading International Inc .
[1999] 2 Lloyd’s Rep. 632. As to an arbitration clause see also Schiffartgesellschaft
Detler Von Appen GmbH v. Voest Alpine Intertrading GmbH [1997] 2 Lloyd’s Rep.
279. Such a clause may confer a benefit on a non -party in contracts within the Carriage
of Goods by Sea Act 1992 or the Contracts (Rights of Third Parties) Act 1999.
96. The Mahkutai [1996] 2 Lloyd’s Rep. 1.
97. See e.g. Trendtex Trading Corpn v. Credit Suisse ´[1980] 3 All E.R. 721—
but, as there, may play a predominant part in the court’s vie w as to where the claims
may be heard. (Decision affirmed by H.L. [1981] 3 All E.R. 520.) Domansa v. Derin
Shipping and Trading Co. Ltd [2001] 1 Lloyd’s Rep. 362—claims "in relation to the
terms of employment and the employment contract" does not cover tortious claims.
98. The Lisboa [1980] 2 Lloyd’s Rep. 541.
99. See The Indian Grace (No. 2) [1998] 1 Lloyd’s Rep. 1 and Chapter 10.
100. For an example of construction of an agreement in re lation to a foreign court
as non-exclusive see The Kherson [1992] 2 Lloyd’s Rep. 261. As to non -exclusive
jurisdiction clauses and the operation of the mandatory jurisdiction based on forum
agreement under EC Regulation 44/200 1 and the Brussels and Lugano Conventions see
Chapter 5.
101. Sohio Supply Co. v. Gatoil [1989] 1 Lloyd’s Rep. 585. An exclusive
provision in relation to one party may aid in so construing a provision relating to the
other. (See Insurance Co. "Ingosstrakh" Ltd v. Latvian Shipping Co. [2000] I.L.Pr.
164.)
102. Ibid.; British Aerospace plc v. Dee Howard Co. [1993] 1 Lloyd’s Rep. 368
(together with English law governing contract the courts "shall have jurisdiction"). This
reasoning does not apply without qualificatio n to the Brussels or Lugano Convention for
in those contexts the emphasis is on providing jurisdiction by agreement rather than any
other jurisdiction base. Under EC Regulation 44/2001 the distinction between exclusive
and non exclusive is expressly made ( see Chapter 5).
103. See Excess Insurance v. Allendale Mutual Insurance (C.A.) 8 March 1995.
104. Compare Cannon Screen Entertainments Ltd v. Handmade Films Ltd 11 July
1989 (unreported) with British Aerospace Plc v. Dee Howard Co. [1993] 1 Lloyd’s
Rep. 368 considering (inter alia) Cannon. The provision of an address for service will
point to the transitive sense. See Continental Bank NA v. Aeakos Compania Naviera SA
[1994] 1 Lloyd’s Rep. 505 (C.A.). See also Sinochem International Oil (London) Co.
Ltd v. Mobil Sales and Supply Corpn [2000] 1 Lloyd’s Rep. 670.
105. Continental Bank NA v. Aeakos (fn. 96); Credit Suisse First Boston (Europe)
Ltd v. MLC (Bermuda) Ltd [1999] 1 Lloyd’s Rep. 767.
106. [1990] 1 Lloyd’s Rep. 454. See also Cannon Screen Entertainments v.
Handmade Films Ltd 11 July 1989 (unreported) (Hobhouse J.).
107. Compare Denby v. Hellenic Mediterranean Lines [1994] 1 Lloyd’s Rep. 320
in which it appears that (in the context of the Brussels Conventi on) such a clause in a
well-known marine insurance policy with shipowners was held "exclusive".
108. [1993] 1 Lloyd’s Rep. 368.
109. But see its consideration where there were relevant English and foreign court
agreements (Sinochem v. Mobil (fn. 96)).
110. See as to jurisdiction clauses generally Akai v. Peoples Insurance [1998] 1
Lloyd’s Rep. 90 at p. 108, or "enter into the interests of justice itself". See Import
Export Ltd v. Compania Sud Americana de Vapores SA [2003] 1 Lloyd’s Rep. 405 in
that case Gross J. treating Waller J. ’s approach as the "benchmark" and reviewing the
authorities.
111. See Attock Cement v. Romanian Bank [1989] 1 Lloyd’s Rep. 572 at p. 582—
but also see Beazley v. Horizon Offshore Contractors Inc [2004] EWHC 25 55—
pointing out that a "home" jurisdiction of one party had been agreed to by the other.
112. But not necessarily—for discussion as to whether the Carriage of Goods by
Sea Act 1992 (providing for the transmission of rights and liabilities of a shipper to
persons not parties to the initial contract) is mandatory in this sense see [1994] LMCLQ
280.
113. See Chapter 9.
114. Article 17.
115. The CMR is enacted into English law by the Carriage of Goods by Road Act
1965. As to specified links, see Sch. Art. 31. The Convention applies to the sea carriage
of goods in vehicles (see Art. 2(1)) —thereby providing an action against the road
carrier for damage or loss caused in a sea leg. However, an action against the sea
carrier would still lie under the Hague-Visby Rules if they apply to that leg.
116. Contrast the Hamburg Rules which (in Art. 21) specify jurisdictional
provisions in a similar manner to the CMR. The Article (inserted at the urging of cargo
interests) provides for a number of jurisdictions connected with the dispute at the option
of the plaintiff. One such option is the jurisdiction agreed by the parties which,
therefore, confers a mandatory effect on such agreements subject to exercise of the
plaintiff’s option.
117. See Maharani Woollen Mills Co. v. Anchor Line (1927) 29 Ll.L.Rep. 169.
118. See also Marine Liability Act, s.46 of Canada relating to carriage of goods by
water to which the Hamburg Rules do not apply. This, it has been held, does not
displace forum non conveniens. The Mathilde Maersk, 22 December 2003. See [2004]
LMLN 636.
119. [1983] 1 Lloyd’s Rep. 1.
120. A view adopted by the US Supreme Court in Vimar Seguros Y
Reaseguros SA v. M/V The Sky Reefer 1995 A.M.C. 1817 (overruling a long -standing
decision of the USCA (2nd Circuit) in Indussa Corpn v. The Ramhorg [1967] 2
Lloyd’s Rep. 101 holding invalid such an agreement because of the high hurdle in the
way of enforcing liability and no assurances that COGSA would be enforced). See also
Fireman’s Fund Ins Co. v. M/V DSR Atlantic 1998 A.M.C. 583; JCB Sales v. Wallenuss
Lines (USCA) 1998 LMLN 474; Union Steel America Ltd v. MV Sanko Spruce 1999
A.M.C. 344, 366, 372.
121. The effect of such a holding on the validity of arbitration clauses is not
clear, particularly in light of the duty to recognise such clauses imposed by the Arbitration
Act 1996 (see further Chapter 13). The reasoning applies to choice of law as to choice
of forum, for otherwise an English court may simply have to apply the law of the source
of the objection to jurisdiction. As to choice of law see Chapter 26. As a consequence
of the decision defendants often undertake not to rely on a package limitation less than the
Hague-Visby Rules.
122. The Benarty [1984] 2 Lloyd’s Rep. 244 (C.A.) reversing [1983] 2 Lloyd’s
Rep. 50 (in which the rules would not be applied in the selected court ( Djakarta) as not
incorporated into the bill of lading).
123. See e.g. Trendtex Trading Corpn v. Credit Suisse ´[1980] 3 All E.R.
721, at p. 744 (per Lord Denning M.R.)—the jurisdiction clause "must be given full
effect unless its enforcement would be unreasonable and unjust or that the clause was
invoked for such reasons as fraud or ove rreaching". The United States view is similar.
See The Bremen and Another v. Zapata Off-shore Co. [1972] 2 Lloyd’s Rep. 315; 407
U.S. 1 (1972).
124. See the comments of Sheen J. in The Al Battani [1993] 2 Lloyd’s Rep.
219; Phillips L.J. in Baghlaf (fn. 137).
125. See The Nile Rhapsody [1994] 1 Lloyd’s Rep. 382.
126. As e.g. in the five sets of proceedings in the litigation concerning
Bouygues Offshore Co. and various parties in England and South Africa. (See all save
No. 2 in C.A. [1998] 2 Lloyd’s Rep. 461.)
127. See e.g. The Nile Rhapsody [1994] 1 Lloyd’s Rep. 382 and generally
as to stay of proceedings Reichhold Norway ASA v. Goldman Sachs International
[1999] 2 All E.R. (Comm.) 174; (for relatively rare examples of Court Appeal discretion)
The El Amria [1981] 2 Lloyd’s Rep. 119; The Pioneer Container [1994] 1 Lloyd’s Rep.
593; Insurance Co. "Ingosstrakh" Ltd v. Latvian Shipping Co. [2000] I.L.Pr. 164 (but
also a disagreement on the effect of a jurisdiction clause); Baghlaf (fn. 137) where the
judge approached the issue as one of forum non conveniens (as to which see infra).
128. [1976] 2 Lloyd’s Rep. 241—a Polish jurisdiction clause. There was a
time bar question in this case but the fact was treated as neutral ( see infra).
129.[1976] 2 Lloyd’s Rep. 29 —an Oslo jurisdiction clause.
130.See also the comments of the House of Lords and Court of Appeal in Trendtex
Trading Corpn v. Credit ´Suisse [1981] 3 All E.R. 520 (H.L.), [1980] 3 All E.R. 721,
at p. 758 (C.A.).
131.[1970] P. 94, at pp. 99–100. The factors are not unlike those applicable to the
appropriateness of the forum but the existence of a foreign forum agreement should make
the case for a stay very much stronger. See The Nile Rhapsody (fn. 127). For an
apparent reversal of the force of the two doctrines see The Al Battani (fn. 124).
132.Cf. The Star of Luxor [1981] 1 Lloyd’s Rep. 139 (an Egyptian jurisdiction
clause) in which Sheen J. said that The El Amria "was based on the special facts of the
case" and that he now had the benefit of much fuller information as to the Egyptian trial
procedure (p. 140).
133.But compare the somewhat more gentle "comparison" in the context of "forum
non conveniens" made by Sir John Donaldson M.R. in The Abidin Daver [1984] 1
Lloyd’s Rep. 339. He doubted whether Turkish courts had the "maritime experience" of
the English Admiralty Court —the experience being a matter of "history and
geography"—but the tone did not make the comparison less invidious (see [1984] 1 All
E.R. at p. 486 (H.L.—Lord Brandon)).
134.The comments made it clear that procedural advantage could work both ways.
135.[1993] 1 Lloyd’s Rep. 523.
136.Civil Jurisdiction and Judgments Act 1982, s.26 (as to which see Chapter 15).
137.See e.g. Trendtex Trading Corpn v. Credit Suisse ´[1980] 3 All E.R. 721, at
pp. 735–737, [1981] 3 All E.R. 520; The Benarty [1984] 2 Lloyd’s Rep. 244 (C.A.),
[1983] 2 Lloyd’s Rep. 50; The Al Battani [1993] 2 Lloyd’s Rep. 219; The Nile
Rhapsody [1994] 1 Lloyd’s Rep. 382; [1992] 2 Lloyd’s Rep. 399 (particularly the
procedural disadvantages); Baghlaf Al Zafer Factory Co. v. Pakistan National
Shipping Co. [1998] 2 Lloyd’s Rep. 229; Insurance Co. "Ingosstrakh" Ltd v. Latvian
Shipping Co. (fn. 115).
138.See e.g. Pirelli Cables Ltd v. United Thai Shipping Corpn Ltd [2000] 1
Lloyd’s Rep. 663 (Langley J.).
139. See infra.
140.In The El Amria, the Court of Appeal thought the test of "with what country is
the dispute most closely concerned" (applied by Lord Denning M.R. in The Fehmarn
[1957] 2 Lloyd’s Rep. 551) too simplistic to cover all cases.
141.For reference to accessibility as a factor, see e.g. The Adolf Warski [1976] 1
Lloyd’s Rep. 107, at p. 111; The Atlantic Song [1983] 2 Lloyd’s Rep. 394. The
unfortunate (and presumably costly) course of the proceedings in Oppenheimer v.
Cattermole [1976] A.C. 249 (where the appreciation of the foreign law on which the
Court of Appeal based its decision was accepted as wrong) should provide some
discouragement to those ready to interpret foreign as well as English law.
142.See e.g. The Adolf Warski [1976] 2 Lloyd’s Rep. 241, at pp. 246 and 247.
143.F n . 1 2 4 .
144.See The Adolph Warski [1976] 2 Lloyd’s Rep. 241; [1976] 1 Lloyd’s Rep.
107 (Brandon J.); The Blue Wave [1982] 1 Lloyd’s Rep. 151; The Pioneer Container
[1994] 1 Lloyd’s Rep. 593 (P.C.); Citi March Ltd v. Neptune Orient Lines Ltd [1997]
1 Lloyd’s Rep. 72; The MC Pearl [1997] 1 Lloyd’s Rep. 566 (a comprehensive
analysis of authority and principle by Rix J.); The Bergen (No. 2) [1997] 2 Lloyd’s Rep.
710; Baghlaf Al Zafer Factory Co. v. Pakistan National Shipping Co. [1998] 2
Lloyd’s Rep. 229 (C.A.).
145. Strong cause may be shown by the existence of multi parties. (See The MC
Pearl (fn. 144).)
146. Compare Citi March (fn. 144); Baghlaf (fn. 137) with The MC Pearl (fn.
144).
147. Baghl af (No. 2) [2000] 1 Lloyd’s Rep. 1 (C.A.).
148. Ibid.
150. CPR 61.12.
151. Proceedings leading to arrest as security for a foreign suit are not of
themselves "multiple proceedings" within EC Regulation 44/200 1 the Brussels or
Lugano Convention obligating the release from arrest. ( See supra and Chapter 15.)
152. Section 9. A putative English arbitration clause is a significant factor in
considering the issue of the appropriate forum in the context of the service of a claim
form out of England. See Egon Oldendorff v. Liberia Corpn [1995] 2 Lloyd’s Rep. 64
and Chapter 9.
153. Sections 85, 86 but these are not yet in force.
154. Cf. Chapter 15 (Arrest).
155. See The Andria now renamed Vasso [1984] 1 Lloyd’s Rep. 235.
156. [1978] 1 Lloyd’s Rep. 545. Cf. The Tuyuti [1984] 2 Lloyd’s Rep. 51.
158. The Tuyuti [1984] 2 Lloyd’s Rep. 51.
159. Australian Commercial Research and Development Ltd v. ANZ Bank Ltd
[1989] 3 All E.R. 65. Compare Bank of Credit and Commerce (Hong Kong) Ltd v.
Sonali Bank [1995] 1 Lloyd’s Rep. 227—where there were many claims in respect of
which apparently only in one was stay of proceedings considered on forum non
conveniens basis and refused.
160. [1974] A.C. 436.
161. [1978] A.C. 795; [1978] 1 All E.R. 625.
162. [1983] 3 All E.R. 46.
163. [1984] 1 All E.R. 470.
164. [1986] 3 All E.R. 843 (H.L.). As to its application in Ireland see
International Group Ltd v. Worslade Trading Ltd [1998] I.L.Pr. 765 (Irish Supreme
Court).
165. Providing that nothing in the Act "shall prevent" any United Kin gdom court
from staying or dismissing proceedings "on the ground of forum non conveniens where
to do so is not inconsistent with" the Brussels or Lugano Conventions. It applies to
cases within EC Regulation 44/2001 adapted to the UK that adaptation being a domestic
scheme (see Chapter 7).
166.See The Spiliada [1986] 3 All E.R. 843; The Nile Rhapsody [1994] 1
Lloyd’s Rep. 382; but it may review the discretion anew if the principles have not been
correctly applied. See e.g. Du Pont v. Agnew [1987] 2 Lloyd’s Rep. 585; Banco
Atlantico v. British Bank of the Middle East [1990] 2 Lloyd’s Rep. 504; Lennox Lewis
v. King (fn. 175)—C.A. would exercise its discretion if a mistake of law.
167.As is the general principle that the evidential burd en in respect of any fact
rests on the party asserting it.
168.This standard and burden applies to an action for declaratory relief as to a
substantive claim. Bristow Helicopters Ltd v. Sikorsky Aircraft Corpn. [2004] 2
Lloyd’s Rep. 150. But the strength of the connection establishing it (e.g. temporary
presence) being taken into account.
169.As in a collision on the high seas.
170.See Inter Tel Inc. v. Ocis Plc [2004] EWHC 2269 applying International
Credit and Investment Co. v. Shaikh Kamal Adham [1999] I.L.Pr. 302 C.A
(enforceability in Brussels Convention states.)
171.Lord Goff expressed the principle that a court should not be deterred from
stay because of an advantage to the claimant provided “substantial justice will be done
in the alternative appropriate forum” .
172. The Rothnie [1996] 2 Lloyd’s Rep. 206.
173.See Haji Ioannou v. Frangos (fn. 177).
174.See The Spiliada (fn. 164) per Lord Goff; Metull und Rohstoff AG v.
Donaldson Lufkin and Jenette Inc. [1990] 1 QB 391.
175. Lennox Lewis v. King [2004] EWCA Civ 1329.
176. The Spiliada was a case of service of a writ out of the jurisdiction under RSC
Ord. 11 but these elements would be as relevant to a stay of proceedings with the
burden on the defendant rather than the claimant. They will apply as elements of forum
conveniens whenever service does not require permission and the case is not wholly
within any Convention prohibiting it. As to the Brussels and Lugano Conventions, see
supra.
177.For examples of a stay based on the "natural forum" see The Lakhta [1992] 2
Lloyd’s Rep. 269 (ownership and the right to regulate a ship, the parties being Latvia
and Russia and the ship registered in St Petersburg); The Polessk and Adamemik Josef
Orbeli [1996] 2 Lloyd’s Rep. 240 (focus of litigation Russian). For refusal of stay
apparently on the ground of England being the natural forum see Meadows Ltd v.
Insurance Corpn of Ireland [1989] 1 Lloyd’s Rep. 181, [1989] 2 Lloyd’s Rep. 298
(C.A.) (all parties before English court in one action). The Hamburg Star [1994] 1
Lloyd’s Rep. 399; Haji Ioannou v. Frangos [1999] 2 Lloyd’s Rep. 337 (weighing many
factors). Usually difficult to deny that the place of a tort was the natural forum
Richardson v. Schwarzenegger [2004] EWHC 2422.
178.See Banco Atlantico SA v. British Bank of the Middle East [1990] 2 Lloyd’s
Rep. 504 (non-applicability of the non-forum governing law); The Al Battani [1993] 2
Lloyd’s Rep. 219 (documents, witnesses, different costs a nd interest rules); The Vishva
Ajay [1989] 2 Lloyd’s Rep. 558 (delay and lack of availability of costs). Availability of
financial assistance in England may exceptionally be a relevant factor ( Connelly v. RTZ
Corpn Plc [1998] A.C. 854; Lubbe v. Cape Plc [2000] 1 Lloyd’s Rep. 139 (C.A.)).
Art. 6 of the Human Rights Convention is relevant to the nature of proceedings and
delay—see Ceskoslovenska Obchodni Banka AS v. Nomerva International Plc [2003]
I.L.Pr. 20.
179. See e.g. The Vishva Abha [1990] 2 Lloyd’s Rep. 312 (no stay —limits of
liability lower abroad—no discharge of onus by defendant).
180. The risk of such undertakings being of value must be taken into account where
relevant. The issue is identical to that discussed in the context of forum agreements ( see
supra).
181. See e.g. The Rothnie (fn. 172) and cases cited.
182. See Radhaknshna Hospitality Service Private Ltd v. Eih Ltd [1999] 2
Lloyd’s Rep. 249. Peer International Corpn. v. Termidor Music Publishers Ltd [2004]
—22 November.
183. See Askins v. Absa Bank Ltd [1999] T.L.R. 127. In Lubbe v. Cape Plc [1999]
I.L.Pr. 113 (C.A.) it seems as if it may have played a part in consideration of the first
stage (in the case the South African forum was available only if the defendants
submitted to it—a factor in holding that the defendants had not shown that South Africa
was the more appropriate forum. But in a rerun ( Lubbe v. Cape Plc [2000] 1 Lloyd’s
Rep. 239) it was treated as simply a factor —the C.A. there holding that South Africa
was a more appropriate forum (it now being clear that the action in England was a
group action).
184. The Varna (No. 2) [1994] 2 Lloyd’s Rep. 4 (applying The Spiliada). For
cases prior to The Spiliada see De Dampierre v. De Dampierre [1988] A.C. 92 and (in
the context of shipping) The Abidin Daver [1984] A.C. 398.
185. Meadows Indemnity Co. Ltd v. Insurance Corporation [1989] 1 Lloyd’s
Rep. 181 applying The Spiliada criteria. A claimant suing in two jurisdictions would be
asked to elect in which the case should proceed ( see supra). As to declarations of non-
liability see Tiernan v. Magen Insurance [2000] I.L.Pr. 517.
186. The Varna (No. 2) [1994] 2 Lloyd’s Rep. 41—rejecting the submission that "a
natural forum" was all that was required where there were foreign and English
proceedings (see fn. 120).
187. As to which see Maersk Olie and Gas A/S v. Firma M. de Haan Case C–
39/02, ECJ Judgment 14 October 2004.
188. Although it must be arguable that enforcement of a judgment for a sum
reflecting limited liability should be enforceable on general principles of recognition
(as to which see Chapter 27). As to limitation of liability generally see Chapter 24.
189. As e.g. in The Volvox Hollandia [1988] 2 Lloyd’s Rep. 360. As to negative
declarations see Chapter 25.
190. Compare e.g. Bouygues Offshore SA v. Caspian Shipping Co. [1998] 2
Lloyd’s Rep. 461 (C.A.) with The Happy Fellow [1998] 1 Lloyd’s Rep. 13 (C.A.).
191. See e.g. Bouygues Offshore SA v. Caspian Shipping Co. (fn. 174).
192. [1998] 2 Lloyd’s Rep. 454, also thereby disapproving the approach in Caltex
Singapore Pte Ltd v. B Shipping Ltd [1996] 1 Lloyd’s Rep. 286 (Clarke J.) and the
Vishva Abba [1990] 2 Lloyd’s Rep. 312 (Sheen J.).
193. In the Caltex case (fn. 192) Clarke J. thought liability and quantum should be
decided in Singapore but if the stay had to be determined without such decision the
issue was whether the difference between th e arguable claim and the Singapore limit
was such that it would be unjust to stay the action.
194. British Aerospace Plc v. Dee Howard Co. [1993] 1 Lloyd’s Rep. 368. Ace
Insurance SA–NV v. Zurich Insurance Co. [2001] 1 Lloyd’s Rep. 618. As to conflict
between two relevant jurisdiction clauses see Sinochem v. Mobil (fn. 85). See further
9.78.
195. See e.g. The Sennar (No. 2) [1985] 1 Lloyd’s Rep. 521 (H.L.); The Irini A
(No. 2) [1999] 1 Lloyd’s Rep. 186.
196. [1993] 1 Lloyd’s Rep. 387.
197. Maclaine Watson v. Dept of Trade [1988] 3 All E.R. 257 at p. 314 (C.A.).
198. As to diplomatic immunities, see the Diplomatic Privileges Act 1964; as to
consular immunities, see the Consular Relations Act 1968.
199. The Act does not affect any immunity o r privilege conferred by the
Diplomatic Privileges Act 1964 or the Consular Relations Act 1968 (s.16). It applies
only to matters occurring after the date of coming into force.
200. The problem of whether an entity is part of a "sovereign" or "government"
became particularly acute with the increase in "government" bodies. So in Trendtex
Trading Corpn v. Central Bank of Nigeria [1977] Q.B. 529 it was claimed that the
Central Bank was a government body. The court looked at the decrees creating and
governing the bank and its activities and concluded that it was not.
201. Actual submission with knowledge of the immunity is required. (See Baccus
SRL v. Services National del Trigo [1957] 1 Q.B. 438.) An agreement to submit is not
sufficient (see Kahan v. Pakistan Federation [1951] 2 K.B. 1003).
202. The Cristina [1938] A.C. 485, at p. 490 (per Lord Atkin).
203. As in The Cristina where the issue was whether the Spanish Government,
which had requisitioned all ships, had a sufficient interest for the plea. It was held that
there was such an interest.
204. The Philippine Admiral [1977] A.C. 373.
205. The I Congreso del Partido [1981] 2 Lloyd’s Rep. 367.
206. Ibid., at p. 375.
207. The Act (inter alia) brought into English law the provisions of (i) the
International Convention for the Unification of Certain Rules Relating to the Immunity of
State Owned Ships 1926 and its Protocol; (ii) the European Convention on State
Immunity 1972.
208. State Immunity Act 1978, s.1(1).
209. State Immunity Act 1978, ss.2 –11.
210. Section 15. By the State Immunity (Merchant Shipping) (USSR) Order 1978
(SI 1967/1524) provision was made to reflect a Convention (i) requiring notice to a
consular officer of any intended arrest of a ship owned by the USSR or UK, (ii) that no
ship or cargo owned by either the USSR or UK was subject to enforcement of a
judgment. Following the consideration by the C.A. of its applicability to successor
states (The Guiseppe di Vittorio [1998] 1 Lloyd’s Rep. 136) the 1978 Order was
revoked and replaced by SI 1997/2591 making similar provision in relation to Georgia,
the Russian Federation and Ukraine (that Order being held not to be retrospec tively
applicable to an order for sale already made ( Guiseppe di Vittorio (No. 2) [1998] 1
Lloyd’s Rep. 661). The requirement of notice is contained in the CPR 6 1.5(5). On
termination of the Convention by the UK the 1997 Order was revoked by SI 1999/668
as from 29 April 1999. There appears no other provision to which para. 5.5 applies.
211. State Immunity Act 1978, s.14. For disagreement as to the "sovereign" nature
of acts done by a separate entity see Kuwait Airways Corpn v. Iraq Airways Co. and
Republic of Iraq [1995] 2 Lloyd’s Rep. 317 (H.L.).
212. State Immunity Act 1978, s.13.
213. An order for the payment of money from no specific source is not an
injunction prohibited by s.13. Soleh Bonah International v. Govt of Uganda and
National Housing Corpn [1993] 2 Lloyd’s Rep. 208 (C.A.) (order for security). A
freezing injunction could not be allowed to continue in the face of an immunity claim
simply on an arguable case for the plaintiff ( Company A v. Republic of X [1990] 2
214. A current account balance to the credit of a diplomatic mission can only be
garnished if it is shown that the funds are solely for commercial purposes (and a
certificate by the ambassador that they were not, is conclusive —s.13(5)): Alcom Ltd v.
Republic of Colombia [1984] 2 All E.R. 6 (H.L.). There are limitations relating to the
use of process relating to property of States parties to the European Convention on State
Immunity 1972 where the claim is not maritime (s.13(4)). As to former res trictions on
maritime claims in relation to USSR and successor states, see fn. 194.
215. State Immunity Act 1978, s.2. Claiming immunity is not a step in the
proceedings for this purpose (s.2(4)). See Kuwait Airways Corpn v. Iraq Airways Co.
[1994] 1 Lloyd’s Rep. 276. Intervening or taking any step in ignorance of facts entitling
a state to immunity is not submission for this purpose if immunity is claimed as soon as
practicable (s.2(5)). Submission through waiver in an inter partes contract will not
bind the state to waive its immunities—that required consent to the court. Company A v.
Republic of X [1990] 2 Lloyd’s Rep. 520.
217. State Immunity Act 1978, s.3. A commercial transaction means a contract for
the supply of goods or services, transaction for the provision of finance and any other
transaction of a "commercial industrial financial professional or other similar character
entered into otherwise than in the exercise of sovereign authority" but contrac ts of
individual employment are excluded (s.3(3)). The exception does not extend to non -
commercial contracts made in the territory of the state concerned and governed by its
administrative law (s.3(2)).
219. Ibid., s.4(2) and (4).
220. Ibid., s.5.
221. Ibid., s.6.
222. Ibid., s.7.
223. Ibid., s.8. Parties may agree in writing or through the constitution of the body
that immunity may apply.
225. Ibid., s.10(1).
226. Procedural rules relating to service of documents and appearance set out in
s.12 do not apply to actions in rem (s.12(7)). Arrest may play its usual role in an action
in rem where such an action will lie (see s. 13(4)).
227. The time of the issue of the claim form (a critical time for the enforceability
of an action in rem against a ship in many cases ( see Chapter 10)) is therefore
irrelevant.
228. State Immunity Act 1978, s.10(2) and (5). As to when an action in rem may
lie against cargo, see Chapter 10. As to the meaning of commercial purposes, see s.3(3)
(applied by s.17(1)). As to s.3(3), see fn. 201 supra.
229. State Immunity Act 1978, s.10(3) and (4). Cargo may presumably attract
immunity under the general provisions of the statute.
230. State Immunity Act 1978, s.10(6).
231. See e.g. (in a maritime case) The Athol (1842) 1 W. Rob. 374.
232. As amended by Crown Proceedings (Armed Forces) Act 1987 and Merchant
Shipping (Salvage and Pollution) Act 1994 (to take ac count of the International
Convention on Salvage 1989).
233. There is a general principle of statutory construction that, lacking express
provision, the Crown is not bound by statute. Provision is usually made in modern
statutes regarding the effect on the Crown—and reference must be made to each such
statute to ascertain the Crown position.
234. Crown Proceedings Act 1947, s.40(1) —referring specifically to proceedings
in tort.
235. Specific provisions deal with the Crown prerogative and statutory powers
(s.11). For other limitations, see ss.2 and 10, s.10 being repealed by the Crown
Proceedings (Armed Forces) Act 1987 subject to powers of revival.
236. See Merchant Shipping Act 1995, s.230.
237. Merchant Shipping Act 1995, ss.149, 167, 192, 308 repeali ng and
consolidating provisions of the Crown Proceedings Act 1947, ss.5 –7, 38(2), the
Prevention of Oil Pollution Act 1971, s.24, Merchant Shipping Act 1894, s.741,
Merchant Shipping (Oil Pollution) Act 1971, s.14, Merchant Shipping Act 1979, Sch. 5,
para. 5. The HNS Convention 1996 (not yet in force) applies to state owned ships used
for commercial purposes and may be applied by a state to ships used only on
government non-commercial service (Art. 4). See Merchant Shipping and Maritime
Security Act 1997, Sch. 3 and Chapter 3.
238. Merchant Shipping Act 1995, s.308(2), repealing and re -enacting Merchant
Shipping Act 1906, s.80, as amended by Merchant Shipping (Registration etc.) Act
1993, Sch. 2, para. 3. There have been numerous Orders in Council made. See e.g.
Merchant Shipping (MOD Commercially Managed Ships) Order 1992, SI 1992/1293;
Merchant Shipping (MOD Yachts) Order 1992, SI 1992/1294.
239. An action in rem instituted in the reasonable belief that the property at issue
did not belong to the Crown may be permitted by the court to continue as an action in
personam (s.29(2)). As to Arrest of Crown sh ips, see further Chapter 15. As to liens,
see Part III. As to the effect of purchase, sale, requisition or release from requisition by
a foreign government on “ liens” on a ship, see Chapter 18. There is no reason why the
principles should not apply to the Crown.
240. Section 2(3) of the Hovercraft Act 1968 empowers the non -application by
Order in Council (inter alia) of the Supreme Court Act 1981, ss.20 –24 and
Administration of Justice Act 1956, Part V (Scottish Admiralty Jurisdiction) to
hovercraft. No order has been made.
241. Compare (e.g.) the sweeping up clause of the Supreme Court Act 1981. ( See
Chapter 2.)
242. See e.g. The Broadmayne [1916] P. 64; Young v. S.S. Scotia [1903] A.C. 501
(P.C.).
243. Crown Proceedings Act 1947, s.8(1) (as amended by the Merchant Shipping
(Salvage and Pollution) Act 1994, Sch. 2, para. 3); Merchant Shipping Act 1995, s.230.
244. "Her Majesty" is defined in the Crown Proceedings Act 1947, s.7(3) dealing
with liability in respect of Crown docks and harb ours to "include references to any
Government Department and to any officer of the Crown in his capacity as such".
"Officer" is defined in the Act as including "any servant of Her Majesty" including a
Minister of the Crown.
245. See Trendtex Trading Corpn v. Central Bank of Nigeria [1977] 1 All E.R.
881, at p. 894.
246. The Post Office is not a servant or agent of the Crown (Post Office Act 1969,
s.6(5)) but has its own immunity from liability in tort (s.29). For limitation on immunity
in respect of registered inland packets, see s.30.
247. In accordance with s.17(1) of the Act. For the current list, see current CPR 19
PD Annex.
248. Crown Proceedings Act 1957, s.38(2). The phrase "Her Majesty’s ships" has
not been uniform in maritime legislation. See e .g. the Merchant Shipping Act 1894,
s.741, 1995 Act, s.308(1)—"ships belonging to Her Majesty"; the Merchant Shipping
Act 1906, s.80—"government ships" (excluding ships of "Her Majesty’s Navy") applied
in the Prevention of Oil Pollution Act 1971, s.24 —see 1995 Act, ss.149, 308(3),
3 13(1). Each provision must, therefore, be approached with possible distinctions of
definition in mind.
249. The Bertie (1886) 6 Asp. M.L.C. 26, in which the Crown had chartered a ship
on a voyage charter—no point was taken as to immunity. Cf. The Nile (1875) 3 Asp.
M.L.C. 11; The Cybele (1878) 3 P.D. 8 (cases in which there were claims for salvage
by crews of ships chartered to the Crown).
250. See e.g. The Sarpen [1916] P. 306.
251. Cf. Thomas, Maritime Liens, op. cit. at pp. 80, 81. It seems doubtful,
however, whether the cases can be said to hold that despite possession by the Crown
the ship was not a Crown ship—they turn more on exclusive control.
252. See Young v. S.S. Scotia [1903] A.C. 501 (P.C.) disapproving The Cybele
(1878) 3 P.D. 8. Contrast the immunity of foreign sovereigns and s.167(1) of the 1995
Act relating to liability for oil pollution ( see supra).
253. Cf. State Immunity Act 1978, s.10(3) and (5) (referring to the immunity of
cargo "belonging to" a foreign state)—it would be unlikely that a foreign state would be
granted a wider immunity than the Crown without express provision —although the
converse is perhaps not so.
254. As e.g. a "gaming and wagering" marine insurance contr act (lack of insurable
interest). See Marine Insurance Act 1906, s.4; Marine Insurance (Gambling Policies)
Act 1909.
255. As e.g. immunity from suit in tort in relation to acts done in furtherance of a
trade dispute (see Trade Union and Labour Relations ( Consolidation) Act 1992,
s.219(1)).
256. Section 14 amended by the Merchant Shipping Act 1979, s.50(4). Nuclear
claims are excluded from the Convention on Limitation of Liability for Maritime Claims
1976 (see Art. 3) (as to which see Merchant Shipping Act 1995, Part VII). As to nuclear
damage as the foundation for a maritime claim see Chapter 2.
257. Nuclear Installations Act 1965, s.14. The Act provides its own liability
framework (see Chapter 2).
258. Merchant Shipping Act 1995, s.166. In relation to the Oil Pollution
Compensation Fund the restrictions are attached to the liability in actions in State
parties—in the case of the UK it is extended while Fund headquarters are in London
(see Merchant Shipping Act 1995, s.175). As to jurisdiction, see s.177 (1) and Chapter
6.
259. Merchant Shipping Act 1995, Sch. 3A, Art. 38. Jurisdiction in actions against
the HNS Fund are linked to actions against the owner (Art. 39). See Chapter 6.
260. Hesperides Hotels Ltd v. Muftizade [1978] 2 All E.R. 1168.
261. See The Tolten [1946] P. 135.
262. For Convention rules relating to immovable property, see (e.g.) Arts 9, 12(4)
and 16(1). For special rules see Sch. 4, Art. 16(1).
263. Pearce v. Ove Arup Partnership Ltd [1999] 1 All E.R. 769. It follows that
insofar as the case is within the provisions adapting the Convention to intra United
Kingdom disputes the limitation is identical. (See Civil Jurisdiction and Judgments Act
1982, Schs 4, 5 and Chapter 8.)
264. The current parties are France, Germany, Belg ium, Netherlands and
Switzerland. The text (English translation) with amendments of 1898, 1922, 1923 and
1963 is set out in Cmnd 242 1/1963. See further Chapter 6.
265. As to the exemption from enforcement of judgments owned and notice of
intended arrest of ships owned by a foreign state see supra fn. 194.
266. Dr Lushington in The Octavie (1836) B. & L. 215, at p. 217.
267. Ibid. The Admiralty Rules 1859 (r. 10) required notice to be given (see also
RSC Rules 1883, Ord. V, r. 16).
268. See e.g. The Nina (1867) L.R. 2 A. & E. 44 (on appeal (1867) L.R. 2 P.C.
38); The Leon XIII (1883) 8 P.D. 121.
269. Nothing in the Supreme Court Act 1981, ss.20 –23, limits the jurisdiction to
refuse to hear a claim for wages by the master or crew of a ship not being a British ship
(s.24(2)(a)). As to the definition of "British ships", see the Merchant Shipping Act
1995, s.1(1).
270. Consular Relations Act 1968, s.4. There is also power to limit criminal
jurisdiction (s.5).
271. It should be noted that the relevant category of claims is wider than wage
claims.
272. Austria, Belgium, Bulgaria, Czechoslovakia, Denmark, Germany, Greece,
Hungary, Italy, Japan, Mexico, Norway, Poland, Romania, Spain, Sweden, Yugoslavia
and United States. (See SI 1970; 1903 –1905; 1907–1914; 1917–1920; 1971/1846;
1976/768; 1152; 1978/275 (revoking 1970/1919); 1999/1124 (revoking 1970/1916)).
The position in respect of successor states to Yugoslavia is not certain and inquires may
need to be made of each.
273. Failure to comply with statutory requirements renders the proceedings a
nullity (The Andrea Ursula, Lloyd’s List and Shipping Gazette, 14 January 1971). The
provisions with respect to Mexico allow proceedings in respect of British su bjects
(with some extensions) without notice (SI 1970/19 11).
274. See The Jupiter (No. 2) [1925] P. 69.
275. Ibid., at pp. 74–75; The Annett [1919] P. 105, at pp. 114–115.
276. CPR 3.4, 3.5. As to the importance of alternative courses to striking out i n
case management under the CPR see Biguzzi v. Rank Leisure Plc [1999] 4 All E.R. 934
(C.A.). As to vexatious litigants see Supreme Court Act 1981, s.42.
277. See The Moschanthy [1971] 1 Lloyd’s Rep. 37.
278. See Bragg v. Oceanus Mutual Underwriting Assoc. (Bermuda) Ltd [1982] 2
Lloyd’s Rep. 132 and cases there cited. In the Bragg case "relitigation" was allowed by
the same defendant in different actions. See also The Indian Grace [1993] 1 Lloyd’s
Rep. 387, at p. 391.
279. Turner v. Grovit [1999] 3 All E.R. 616 (C.A.)—a jurisdiction exercisable to
grant an anti suit injunction even if the proceedings are in a State party to the Brussels
Convention (see further Chapter 4). It may be abuse to seek such an injunction (see New
Hampshire Insurance Co. v. Aerospace Finance Ltd [1998] 2 Lloyd’s Rep. 539).
280. The Andria now renamed Vasso [1984] A.C. 293, now see Civil Jurisdiction
and Judgments Act 1982, s.26 (and Chapter 15).
281. See Castanho v. Brown and Root (UK) [1981] A.C. 557.
282. See Barton Henderson v. Merrett [1993] 1 Lloyd’s Rep. 540.
Chapter 13
Arbitration
13.1 Arbitration clauses are commonplace in maritime contracts. 1 Subject to
statutory limitations it is always open to parties to a dispute to agree to submit that
dispute to an arbitration rather than a court either when the dispute occurs or prior to it —
preferring a decision making process partly at least in the han ds of non-lawyers,
confidential2 and arguably less costly and more speedy. In English law, as is seen in
Chapter 12, an arbitration agreement can form the basis for the stay of court proceedings
commenced contrary to it or an injunction to restrain a party from foreign proceedings
contrary to it. Such an agreement is a contract enforceable through the courts as such but
with a superimposed statutory framework applicable to it through the Arbitration Act
1996. An arbitration agreement is not a ground for ref usal to issue a claim form in legal
proceedings contrary to it. It is a ground for stay of those proceedings ( see infra). 1.
English Law and International Agreements
13.2 The United Kingdom is one of over 100 states to have ratified the New York
Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. This
imposes on States parties the duty to stay court proceedings if a dispute exists and a
valid arbitration agreement is established, and to recognise and enforce foreign
arbitration awards.
13.3 The most radical and comprehensive international attempt at an agreed format
for arbitrations is that contained in the UNCITRAL Model Law. This provides a model
for states to adopt. Scotland is among the states to have adopted it. Although England
has not adopted it, much of it is reflected in the 1996 Act. The Uncitral Model Law—
Transnational Arbitration
13.4 While recognising arbitration as a valued agreed way of dispute settle ment
English law has been relatively slow in differentiating between private, domestic and
transnational arbitrations. While advancing London as an arbitration centre, there was
some reluctance to see international commercial arbitration in terms other tha n a
contractual process applying English law and in regard to which courts should continue
to exercise control and retain broad powers of intervention.
13.5 International agreement on arbitration was taken a stage further through the
UNCTIRAL Model Law 1985 on international commercial arbitration. This is not a
Convention but, as its name implies, provides the opportunity for states to adopt a
uniform approach to matters within its scope. It has been adopted or applied in a
number of states (including Scotland) but rejected in England 3—largely on the grounds
that in English law there is a well-developed arbitral process. The danger that through
non-application England would be out of step with internationally recognised principles
is to a large extent avoided by the influence of the Model Law on the 1996 Act.
13.6 The Model Law is concerned with the arbitral process as a whole —the
arbitration agreement, the arbitral tribunal, the proceedings and the making of the award.
It is based on the perceived distinctio n between international and domestic arbitrations
and largely adopts the broad principles of party autonomy to opt for arbitration rather
than litigation. Mandatory provisions are few and the role of courts seen as supervisory
and providing assistance—rather than arbitration being a contract to be enforced within
and as part of a structure of dispute resolution primarily based on litigation.
13.7 Fundamental differences between the approach of the Model Law and that of
English law prior to the 1996 Act were (i) the conferment on the arbitral tribunal of the
power to decide its own jurisdiction, including the validity of an arbitration agreement;
(ii)the ability of the parties to agree to resolve the dispute not according to a particular
law but ex aequo et bono or through the offices of an amiable composituer; and (iii) the
prohibition on recourse to the courts save on special grounds.
13.8 The 1996 Act provides a comprehensive but not exhaustive structure. If
sections 85–87 are brought into force it differentiates between domestic and
international agreements in respect of mandatory stay of legal proceedings and the
court’s control, but in large measure treats them in the same way. It goes far to meeting
the approach of the Model Law. Sub ject to mandatory provisions the Act largely
recognises party autonomy in respect of the conduct of the arbitration and reduces the
scope for intervention by the courts (section 1). 4 So, unless otherwise agreed, the
tribunal has power to rule on its own substantive jurisdiction (section 30), and the
parties are free to agree on the powers of the tribunal in relation to the proceedings
(section 38). Further, the parties may agree that considerations apart from law are to be
criteria for deciding the dispute (section 46) 5—i.e. following generally the Model Law
in respect to the relevance of "ex aequo et bono ". Multi state Conventions The New
York Conventions on the Recognition and Enforcement of Foreign Arbitral Awards
1958
13.9 The United Kingdom ratified the New York Convention on 24 September
1975. It was enacted into national law by the Arbitration Act 1975, which came into
operation on 23 December 1975 and now is reflected in the Ar bitration Act 1996. The
Convention is carried into domestic law by providing first for a mandatory stay of court
proceedings commenced contrary to a valid arbitration agreement 6 other than a domestic
agreement and, secondly, for the recognition of arbitration awards made in the territory
of any other party to the Convention 7 (see Chapter 27). The Geneva Convention on the
Execution of Foreign Awards 1923
13.10 The Arbitration Act 1950, Part II enacted into English law this Convention
and the Protocol on Arbitration Clause 1927. These provisions are continued in force
by the Arbitration Act 1996, section 99 in respect of relatively few states which are not
parties to the New York Convention. The Convention on the Law Applicable to
Contractual Obligations 1980
13.11 Arbitration agreements are excluded from the Convention (Article 2(d)) but
will play a part in determining the law applicable to any containing them ( see infra and
Chapter 26). EC Regulation 44/2001 and the Brussels and Lugano Conventions
13.12 “ Arbitration” is excluded from Regulation and both Conventions (Article
1(4)). The width of the exclusion is discussed in Chapter 5. In summary all aspects of
the arbitration proceedings are excluded, 8 but uncertainty remains at European level as
to the issue of validity of an arbitration agreement arising other than in the context of the
process.8a It is settled that measures in support of an arbitration may be included if their
subject-matter is within the Convention.
13.13 The European Court has held that (i) priority of jurisdiction as provided for
in the applicable Community regime must be followed despite an exclusive jurisdiction
agreement for a particular court, and (ii) anti suit injunctions in respect of proceedings
within the regime in another State are not consistent with the Convention. As
"arbitration" is outside the Convention clearly (i) cannot be applied by analogy. As to
(ii) the critical issues are whether (a) all aspects of arbitration are outside the regime,
and (b) the prohibition on anti suit injunctions in respect of Member States is limited to
issues within the regime or stems from membership of the Community.
13.14 The current English judicial view 9 is (unsurprisingly given the predilection
in this area of upholding the national approach 10) that all arbitration issues, including
the question whether there is a valid arbitration c lause, are outside the Community
regimes. Hence first, where there are multiple proceedings, the priority given to the
court first seised to determine its jurisdiction does not apply. Secondly, there was no
prohibition on comity or other grounds to prevent the grant of anti suit injunctions. 11
13.15 Both aspects are no doubt destined (in time) for the European Court. 12 As to
arbitration it seems a curious logic to maintain that whether a national court has or has
not jurisdiction under the Community regime is itself outside that regime. Surely to
claim jurisdiction contrary to the regime without allowing the Court on which regime
jurisdiction is conferred is to interfere with the regime allocation. It is difficult to see
how that decision is not regime based. Other Conventions
13.16 The Hamburg Rules (Article 22) contain a detailed arbitration provision
limiting the places in which it may be held. 13 Maritime Conventions containing
arbitration provisions do not generally impose such limits. 14 Arbitration and
Litigation
13.17 An arbitration agreement is within the Arbitration Act 1996 and is therefore
capable of avoiding any dispute as to the forum and method of resolution of the dispute
—but only if the arbitration clause is first clearly drafted and clearly ag reed,15 secondly
is in writing16 and thirdly that it is enforceable. As to the first it may be surprisingly
easy to include clauses which on their face provide for both jurisdiction and
arbitration17 or do not express the scope of the arbitration agreement with clarity, or
arguably provide for arbitration in two places. 18 An arbitration agreement may be
assigned 19 and will be assigned on the assignment of the rights to which it is
applicable.20
13.18 An enforceable arbitration agreement does not of itself e xclude litigation—
the two are not mutually exclusive. The issue of a claim form while an arbitration is
proceeding does not bring the arbitration to an end, 21 nor does an arbitration clause
mean that any concurrent court proceedings are in some way void. However, unless
there is no remaining dispute, there is a statutory obligation on courts of member States
of the New York Convention to stay court proceedings if there is a valid arbitration
agreement (see infra).
13.19 The question of whether an arbitration agreement is enforceable may arise as
a preliminary issue of itself or through one party initiating litigation contrary to the
asserted clause. In the latter circumstances the arbitration clause is only as enforceable
as the court in which the litigation is launched recognizes. If the agreement is regarded
as enforceable in the state in which the arbitration is to take place but not in the state
where the litigation is started, just as with multiplicity of court procee dings the party
seeking arbitration may have to tread carefully in respect of the court proceedings. If it
does not participate there may be judgment in default, but if there is participation there
may be held to be submission and hence enforceability of t he judgment. In any event
insistence on the arbitration will mean fighting on two fronts.
13.20 In English law there are protective measures —an English court satisfied as
to the validity (or not) of an arbitration clause may enjoin a party from taking
proceedings or arbitrating elsewhere. 22 Even without such an injunction participation in
foreign proceedings simply to contest jurisdiction will not amount to submission for the
purposes of enforcing a judgment and any judgment obtained in breach of an arb itration
agreement is not enforceable in England ( see Chapter 27). But care must still be taken
not to take any step which would result in submission to foreign proceedings. 23
Arbitrations and English Law Court jurisdiction over arbitration matters
13.21 The powers of courts in relation to arbitrations are set out in the Arbitration
Act 1996. In part they are mandatory and in part subject to the consent of the parties or
tribunal. The jurisdiction of the court is restricted in that unless otherwise agreed the
tribunal has power to rule on its own jurisdiction (i.e. whether there is a valid
arbitration agreement, the constitution of the tribunal and whether matters submitted are
within the agreement). 24 Any objection to jurisdiction must be taken as soon as possible
and, subject to the discretion of the tribunal, if before the proceedings have commenced
before the first relevant step in the proceedings. 25 The tribunal may deal with the issue
or stay the proceedings pending an application to the court and must follow such of the
courses agreed by the parties. 26 Such an application requires the written agreement of
the parties or the permission of the tribunal. 27
13.22 The jurisdiction of the courts to deal with matters within their power
depends on the rules generally applicable. So, subject to the applicability of EC
Regulation 44/2001 or the Brussels or Lugano Conventions and any other substantive
jurisdiction requirement it will depend on service of the arbitration claim form either in
England or with permission of the court outside England. Service out of the jurisdiction
13.23 Save as the claim may be within EC Regulation 44/200 1 the Brussels or
Lugano Conventions 28 and falls within the provisions of CPR 6.19(1), (1A), permission
of the court is required. Permission may be given under the CPR for service on a party
to the arbitration or agreement for (i) an application for the exercise of one of the
specified powers supporting the arbitration, (ii) where the 1996 Act is applicable by
virtue of the seat of the arbitration or connection with England, some other remedy or
determination of other questions affecting an arbitration, arbitration agreement or
award, or (iii) challenge to or an appeal from an award, (iv) any order made on an
arbitration application. 29 Permission may be given under CPR 6.20(9) to enforce an
award30 and, it would seem, could be considered in relation to the arbitration agreement
as a contract under CPR 6.20(5). 31
13.24 In considering whether permission may or should be given due account must
be taken of the nature of and limitations on the court’s powers under the 1996 Act (as to
which see infra) and the terms of the arbitration clause. So permission will not
normally be given in respect of a matter concerning the tribunal’s jurisdiction which is
within the tribunal’s power to decide. 32 On the other hand it could be considered in
relation to powers supporting the process (such as a freezing injunction) unless the
parties specifically excluded them. 33 Powers apart from provisions directed
specifically at domestic or foreign awards (Parts II and III)
13.25 The applicability of the powers of an English court are largely set out in the
Arbitration Act 1996, sections 2, 3. They are focused on "the seat" of the arbitration.
This is to be designated by the parties or by any institution, person or the tribunal
authorized by them. If not so designated it is to be determined "having regard to the
parties’ agreement and all relevant circumstances", section 3.
13.26 The provisions relating to the arbitration process (Part I) apply where the
seat of the arbitration is in England or Northern Ireland. Provisions also applicable
where the seat is outside those two territories or no seat is designated are:
(i) stay of legal proceedings
(ii) enforcement of awards
(iii) subject to the power not to apply if inappropriate because the seat is not in
England or Northern Ireland—
(a) attendance of witnesses in the United Kingdom in proceedings in the United
Kingdom
(b) court’s powers in support of the arbitration
(iv) where the law applicable is that of England or Northern Ireland the
separability of the arbitration agreement and provisions relating to the effect of death of
a party.
The court may exercise any other powers to support an arbitration if no seat is
designated and the connection with England or Northern Ireland makes it appropriate.
13.27 So there is jurisdiction under the 1996 Act to stay Engl ish proceedings for
foreign arbitrations and to enforce foreign awards and, within limits, to support foreign
arbitrations. The law to be applied to substantive matters Selection by the parties
Mandatory and non-mandatory provisions
13.28 It is provided in the Arbitration Act 1996 that the non -mandatory provisions
of the Act are subject to arrangements of the parties including choice of the law
applicable to the agreement. 34 Provisions which are mandatory include those relating to
the stay of legal proceedings, the application of the Limitation Acts, extension of time
limits, some relating to arbitrations, general duties of parties and the tribunal, some
relating to decisions as to jurisdiction and awards. 35 It follows that subject to the
mandatory provisions the parties to an arbitration agreement may select the law which
is to govern it substantively and it and the proceedings procedurally —either directly or
through selection of an arbitral structure (e.g. Suga r Association) which specifies the
governing law. 36
13.29 Other mandatory rules may be through a Convention directing that "the
Convention" be applied 37 through statutory provision or through a particular substantive
rule being of such fundamental importance to the place of arbitration that an option for
another law would be void. 38 Whether there is or is not an arbitration agreement is a
matter to be decided either by putative proper law (i.e. the law which would be t he
proper law if there was an agreement) or in some circumstances by English law, on the
basis that that is to govern unless it is shown that some other law is applicable. 39
Public policy
13.30 The recognition or enforcement of an award is specifically sub ject to public
policy,40 and the scope of the choice is simply to make arrangements instead of the non -
mandatory provisions. So that choice as is generally the rule will be subject to public
policy considerations and any other limit stemming from a mandat ory rule. The
applicable law if no selection
13.31 Under the Arbitration Act 1996 a non -mandatory provision directs the
tribunal to apply the conflicts of law rule it considers applicable. This will no doubt be
the law "most closely connected" to the issue assessing this either generally or on the
presumptive principles of the Rome Convention ( see Chapter 26).
13.32 The provision for arbitration at a particular place will be a factor indicating
that the substantive contract is to be governed by th at law—but a factor that may be
outweighed by other contact points in the contract. 41 When the agreement provides for
an option as to the place the indication as to proper law is much less strong and will not
of itself indicate a "floating" proper law. The agreement is not therefore void for lack of
a governing law. 42
13.33 It does not necessarily follow that the same law as governs the substantive
contract will govern either the arbitration agreement or individual submissions to
arbitration under that agreement.43 In the usual run of events the law governing the
substantive contract and the arbitration agreement will be the same and that governing
the individual submission will be the lex fori—but not always. 44 The law governing
procedure (the curial law)
13.34 Apart from mandatory provisions of the Arbitration Act 1996 (as to which
see supra) the parties may choose any law as applicable to the procedure, or a law may
be treated as chosen if it is chosen in accordance with the parties agreement or
"objectively determined in the absence of any express or implied choice". Such
determination will no doubt be according to the criteria applicable to the law
applicable to substantive matters—the law most closely connected with the issue.
13.35 The law most closely connected with the procedure would normally be the
law of the seat of the arbitration 45—although English law recognizes the possibility that,
within the permissible limits of choice, there may be an election for the procedural laws
of another country. Such an election leads to such difficulties in respect of English law
that in Union of India v. McDonnell Douglas Corpn 46 Saville J. construed a contract as
submission to English procedure with foreign procedure adapted insofar as not
inconsistent with it.
13.36 While subject to express selection English law will govern the procedure of
an arbitration in England by English arbitrators but an arbitrator is not bound to apply
rules of practice applied by an English court. As with most dis tinctions of this nature,
the concept of "rule of practice" tends to expand or decrease according to the
desirability of freedom of action. So the ability to make an award in foreign currency
when a court could not do so, was said to be procedural, and (it has been said)
"properly described as a rule of practice". 47 But in the same case it was also said that
rules of practice become so entrenched and so authoritatively pronounced as to become
substantive law. As a result, once English law is applicable it i s unlikely that an
arbitrator can rely for any divergence from it on the classification of a remedy as a rule
of practice. But in this respect the arbitrator can do what a court could do.
Enforceability of Arbitration Agreements in English Law The arbitration
agreements, the substantive contract and separability
13.37 Where the law applicable to the arbitration agreement is English law, unless
otherwise agreed by the parties, an arbitration clause is separable from the contract to
which it is relevant. 48 Where there is an arbitration clause in a contract there are
normally three sets of contractual relations: the substantive contract; the contract to
submit future disputes to arbitration; and the individual bilateral arbitration con tract
arising on the assertion of claim within the general arbitration contract. The substantive
contract and the two arbitration contracts may be brought to an end by repudiation or
frustration but, consistently with the principle of separability, the bri nging of one to an
end does not necessarily bring the others to an end. 49 So the validity, existence and
effectiveness of the arbitration agreement will be decided with that as its focus. 50
13.38 As indicated earlier it is essential that any arbitration cl ause be clear as to
scope.51 Further, care should be taken that there is no confusion as between different
arbitration clauses, or arbitration and jurisdiction clauses. There is no inconsistency
between an arbitration clause in a charterparty and a jurisdiction clause in bills of
lading issued under it on the charterer’s orders. The parties to the dispute are
different. 52 Further, it is not necessarily conclusive in an application for stay of
proceedings where there is a discretion, that if the stay were granted there would be a
multiplicity of proceedings in such circumstances. 53 Inconsistency may arise between
the bill of lading and charterparty where terms of the charterparty are arguably
incorporated into the bill of lading and there are in both, clauses relating to arbitration
or jurisdiction. However, reference to jurisdiction is not necessarily inconsistent with
arbitration, and an arbitration clause may be incorporated by specific reference even if
this requires manipulation of the words to adapt it to the bill of lading parties. 54 Stay of
court proceedings
13.39 Enforcement of the arbitration process is through the statutory structure for
arbitral proceedings and also a stay of court proceedings. 55 The "stay" (rather than
"dismissal") of proceedings leaves it open to the court to intervene should the
conditions required for the stay cease to exist. Further, in the end it may be necessary to
return to court to enforce the award through judgment and execution.
13.40 An application for a stay may be made either in the terms of the Arbitration
Act 1996 or the inherent jurisdiction of the court. An application under the 1996 Act
may be made by a party to an arbitration agreement against whom a claim or
counterclaim is brought who has acknowledged the legal proceedings.
13.41 It may not be made after the party has taken a step in the proceedings to
answer the substantive claim. 56 The stay is to be granted unless the arbitration
agreement is "null and void, inoperative or incapable of being performed" 57 or, in
addition in the case of a domestic agreement, other sufficient grounds. 58 So, it may be
argued that a prerequisite for a stay may be satisfaction that there was an arbitration
clause and that the matter at issue was within it. A stay under the inherent jurisdiction
may be ordered at the discretion of the courts and in this context when there was
uncertainty and the need for a hearing to determine these points. 59 2. The English
Statutory Framework—The Arbitration Act 1996 The General Framework
13.42 The framework is governed largely by the Arbitration Act 1996 which,
though not exhaustive, 60 is comprehensive first as regards the general boundary
provisions considered earlier in this chapter and Chapter 27, relating to the relationship
of arbitrators and courts and their respective jurisdiction and powers and recognition
and enforcement of awards. Secondly, there are the provisions going to the details of the
arbitration process—appointment, constitution and authority of the arbitral tribunal, the
arbitral proceedings (including powers and duties of the tribunal, and procedural
matters, the making and nature of the award and costs. There is provision for adaptation
to statutory arbitrations.
13.43 The focus of the Act is, as has been said, on the upholding of the selected
method of dispute resolution by the parties. To that end m ost provisions relating to the
arbitration process are subject to other arrangements by the parties. Those that are not
(the mandatory provisions) go to the essential element of enforcement such as, for
example, (apart from jurisdiction issues) general dut ies of the tribunal and parties. The
powers of the arbitral tribunal
13.44
(1) Unless otherwise agreed by the parties, and subject to a limited review by the
courts the competence to rule on its own jurisdiction (ss. 30 –34).
(2) Subject to the right of parties to agree any matter, to decide all procedural and
evidential matters (section 34) 61 including, subject to the agreement of the parties,
appointment of assessors (section 37).
(3) Unless otherwise agreed by the parties to order as interim relie f security for
costs, inspection, preservation of property subject to the proceedings or taking samples
from the property and preservation of evidence (section 38).
(4) The parties may agree that the tribunal may make provisional awards (section
39).
(5) Unless otherwise agreed by the parties powers in case of a party’s default (a)
to dismiss the claim for inordinate delay by the claimant either giving rise to a
substantial risk that the matters cannot fairly be resolved or likely to cause serious
prejudice to the respondent, or (b) failure to attend or give written evidence after due
notice, to continue proceedings in the absence of a party and make an award on the
evidence before it (section 41). 62
(6) Decide the law applicable to the substance of the dispute (section 46) ( see
supra).
(7) Unless otherwise agreed by the parties as to remedies make a declaration,
award a sum of money, order a party to do or refrain from doing anything, specific
performances or rectification of a contract (section 48). 63
(8) Unless otherwise agreed by the parties award pre award and post award
interest (section 49) 64 (see Chapter 25).
(9) Unless otherwise agreed by the parties decide on the form, place and date of
the award, extend the time for making the award, correct a slip in an award or make an
additional award.
(10) Withhold an award for non-payment of fees and expenses (sections 50, 52 –
65
57).
(11) Subject to the permitted agreement of the parties, award costs including fees
and expenses of the arbitrations (sections 59 –65).
The appellate structure is discussed below. The powers of a court include:
(1) Stay of legal proceedings (sections 9, 86), and directing interpleader issues be
determined in accordance with any applicable arbitration agreement (section 10).
(2) Extension of time to begin or in relation to arbitral proceedings (sections 12,
13 79) (see infra).
(3) Powers in respect of application of Limitations Acts (section 13) ( see Chapter
11).
(4) Subject to the agreement of the parties appointment and consequences of
resignation of members of arbitral tribunal on failure of parties to agree (sections 16 –
19, 21, 25) and removal (section 24).
(5) Subject to the agreement of the parties or tribunal consideration of objection to
jurisdiction of the tribunal (sections 30–32) (see supra).
(6) Unless otherwise agreed by the parties determination of preliminary point of
law (section 45).
(7) Unless otherwise agreed by the parties enforcement of peremptory orders of
tribunal in case of party’s default (section 42).
(8) Support of arbitral proceedings through interim relief (including retention of
security in Admiralty proceedings 66 and attendance of witnesses (sections 11, 43, 44) 67—
apart from retention of Admiralty security subject to agreement of the parties or
tribunal.
(9) Unless otherwise agreed by the parties in relation to the award extend the time
for making it (section 50), or service of documents (section 77).
(10) Consider the withholding for non-payment (section 56), give leave to enforce
as to judgment (sections 66, 101), consider a challenge because of lack of substantive
jurisdiction, serious irregularity or unless otherwise agreed by the parties an appea l on
a point of law (sections 66–7 1).
(11) Subject to agreement of the parties to costs determine the costs if tribunal does
not do so (section 63).
(12) As provided, confirm vary limit or set aside an award.
As a consequence of the 1996 Act control of the tribunal’s powers are vested more
in the parties and the tribunal. The court’s powers are in essence there to ensure the
working of the process and the ultimate enforcement of the award. Review of and
Appeal to Courts from Arbitration Decisions
13.45 The Arbitration Act 1950 provided for review of arbitration awards through
an application by a party to the High Court that the arbitrator state a case for the court. 68
As judicially construed, this developed into an almost unfettered right of review
provided there was a point of law at issue. Paradoxically, although such review was
openly available, under the Arbitration Act 1950 there was no requirement that an
arbitrator state reasons for an awar d, and reasons were often avoided so as to remove
any possibility that a court could set aside an award for an error on the face of it.
13.46 Delay in the finality of arbitration awards through requests for stated cases
led to judicial and commercial frust ration and the right to review was severely
restricted by the Arbitration Act 1979. 69 The 1979 Act abolished the special case
procedure and setting aside an award for error on the face of the record. Appeals to the
court were limited. 70 The appeal process is, with some further restrictions, much as it
was under the repealed legislation. Judicial construction of those provisions therefore
remains relevant. The 1996 Act
13.47 Appeals remain but their availability is even more limited. Save for appeals
on a point of law the process is contained in mandatory provisions. The procedure is set
out in the CPR Part 62.
(i) the court may, subject to prerequisites of consent of the parties or tribunal
permission on the application of any party determine any question of substantive
jurisdiction of the tribunal 71 (see above);
(ii) the court may unless otherwise agreed by the parties and subject to parties’
agreement and tribunal consent 72 on application by a party determine any question of
law substantially affecting the rights of a party arising during the proceedings; 73
(iii) a party may challenge an award before the court on the ground of lack of
substantive jurisdiction, 74 serious irregularity (of the type listed); 75
(iv) the court may unless agreed by the parties and subject to agreement of the
parties or permission of the court hear an appeal on a question of law arising out of the
award.76 Permission is to be given only on the basis that the decision substantially
affects the rights of a party, is obviously wrong or involves a point of general public
importance and is open to serious doubt and that, despite the arbitration agreement, it is
just and proper to determine the question. 77 An appeal from the decision whether to
grant permission requires permission. 78
In respect of (ii), (iii) and (iv) an appeal may not be brought until all arbitral
powers are exhausted. It must be brought within 28 days of the award or the notification
of the result of any further process. 79
13.48 A person alleged to be a party to arbitral proceedings but who takes no part
in them may challenge whether there is a valid arbitration agreement, th e constitution of
the tribunal or the matters submitted to arbitration. 80
13.49 The further restrictions on appeals introduced by the 1996 Act reflect
judicial construction of the 1979 Act in pursuing the perceived Parliamentary aim of
speedy finality in arbitration. 81 The restrictions on appeals are in respect of specified
matters. They go both to the need for permission of the High Court and the provision as
regards a point of law that the question is of general importance or there is some other
special reason. 82 The pre 1996 practice of not giving reasons for the refusal of
permission to appeal on a point of law does not entirely fit with the obligations under
Article 6 of the Human Rights Convention. At least an applicant should be told which of
the statutory requirements had not been met. Where the ground was that the decision was
obviously wrong or open to serious doubt it may be necessary to give brief further
reasons.83 13.50 On general principles no appeal will lie to the Court of Appeal or
House of Lords from a refusal of the High Court to grant permission to appeal. 84
However, the apparent restriction of appeals to the Court of Appeal by the Arbitration
Act to appeals provided by that Act is not to be so construed. 85 The jurisdiction of the
Court of Appeal stems from the Supreme Court Act 1981 and the general provision of
the 1996 Act is to be construed as referring only to the particular provisions of that Act
which regulate and restrict appeals to the Court of Appeal. So, for example, an appeal
will lie from a decision as to stay of proceedings (section 9) against a decision on a
point of law (section 69) by leave of the High Court and in accordance with the
requirements of the particular provision. 86 3. Delay in Arbitration Proceedings In
Commencement of Proceedings Application of Limitation Acts
13.51 The Limitation Act 1980 and the Foreign Limitation Periods Act 1984 and
any other "limitation" enactment whenever passed are applied by the Arbitration Act
1996 to arbitral proceedings as they apply to legal proceedings. In determining for the
purpose of those Acts when a cause of action accrued any provision that an award is a
prerequisite for legal proceedings is to be disregarded. 87 Where an award is ordered to
be set aside or declared of no effect the court may exclude the period between the
commencement of the proceedings and the order in determining when the cause of action
accrued.
13.52 There is power in the courts to extend time for commencing arbitral
proceedings or in relation to matters relating to the proceedings. By a mandatory
provision,88 subject to the Limitation Acts 89 where by agreement a claim is barred or
extinguished unless a step is taken within a fixed time to begin arbitral or other dispute
resolution procedures prerequisite to starting arbitral proceedings, the court may extend
that time. The court may only make such an order if satisfied that the circumstances were
outside the reasonable contemplation of the parties when agreeing the provision 90 and
that it would be just to extend the time or the conduct of one party makes it unjust to
apply the provision to the other party. 91 The order may be made whether or not the time
has expired and may be for such period or such terms as the court thinks fit.
13.53 Where the right to stay of proceedings depends on whether a time bar was
incorporated into the substantive contract, or if so, if the claim was within it, that was a
matter that had been agreed should be referred to arbitration. Unless there was
agreement by the parties that the court should decide the matter should be referred to the
arbitrators.92 However, where there was also an application to extend time if the time
bar applied that could be decided by the court. When proceedings commence
13.54 The point at which proceedings are commenced is critical in respect of the
time bar of the Limitation Acts and therefore to the power to extend time. It is provided
in the Arbitration Act 1996 that for these purposes the parties are free to agree when the
proceedings are regarded to have commenced. Lacking such agreement they are
commenced:
(i) on written notice given to an arbitrator designated in the agreement;
(ii) where the arbitrators are to be appointed by the parties on written notice being
given by one party to the other to make the appointment;
(iii) where the appointment is to be by a third party on written notice by one party
requesting the appointment to be made.93 Extension of time and summary judgment
13.55 The legislation prior to the 1996 Act contained a ground on which a stay of
proceedings is to be refused which is now omitted. The grounds now are "that the
arbitration agreement is null and void, inoperable or incapable of being performed" (as
to which see supra). The additional ground was "there is not in fact any dispute
between the parties with regard to the matter agreed to be referred". Based on this
ground the courts would exercise jurisdiction often as an application for extension of
time to give summary judgment if the defendant had no arguable defence.
13.56 In The M Eregli 94 Kerr J. held that, when an arbitration clause contains a
time limit clause, the limit can be ignored only if there is no dispute (i.e. liability and
quantum is admitted). If there is a failure to comply with a time limit, extension must be
sought under the statutory provision.
"In my view, the correct position is as follows. Where there is a claim which is
subject to a time limit in an arbitration clause, the claimant must operate the arbitration
clause unless there is no dispute because the other party had admitted liability. If he
fails to abide by the clause, then he can only re cover if he succeeds in obtaining an
extension of time under s.27. However, if he does, then the bar to his claim is removed,
and if the claim, or part of it, is indisputably due he can either obtain a final or interim
award in the arbitration, as the case may be, or summary judgment under RSC O. 14 in
an action, even though the action and the arbitration are both concurrent. However, if
both are concurrent, as here, and the claim is indisputably due, it is obviously far more
sensible and convenient to give judgment under O. 14 then [sic] to refer the undisputed
claim back to the arbitrator." 95
Because of the change in statutory wording, that power no longer exists, for, as
Kerr J. said, whether a claim is indisputably due is not the criterion of whether a
dispute exists. So long as there is a dispute in the sense that the claim is not admitted
(see supra) there must be a stay and the matter be dealt with in accordance with the
intentions of the parties—by arbitration.96 Delay in Prosecution of Proceedings The
power of the tribunal
13.57 The tribunal may be given powers by the parties in case of a party’s failure
"to do something necessary for the proper and expeditious conduct of the arbitration".
Unless otherwise agreed by the parties if a party fails to comply with an order by the
tribunal it may prescribe a time for compliance. A failure to comply empowers the
tribunal to draw justifiable inferences, direct that a party may not rely on any allega tion
or material subject of the order, make a costs order or proceed to an award on the
material before it. 97 Further and fundamentally unless otherwise agreed by the parties
one of the powers of the tribunal in support of the arbitration is to make an award
dismissing the claim if there has been an "inordinate and inexcusable delay" on the part
of the claimant in pursuing the claim and the delay:
(a) gives rise or is likely to give rise to a substantial risk that it is not possible to
have a fair resolution of the issues in that claim or
(b) has caused or is likely to cause or to have caused serious prejudice to the
respondent. 98
13.58 The tribunal is therefore given a rang e of powers and no doubt the bringing
of proceedings to a conclusion because of default is to be used only if other measures
have failed or are inappropriate. Despite the rigorous attitude of the courts to delay now
reflected in the Civil Procedure Rules it would seem that the dismissal of the claim for
inordinate delay even though the limitation period has not expired should be only in the
exceptional case. 99 Extension by the courts of time limits for steps to be taken
13.59 Unless the parties otherwise agree the court may extend the time limit agreed
by them in relation to any matter or under the 1996 Act having effect in default. The
power is exercisable whether or not the limit has expired on application by a party or
the tribunal and only if all arbitral steps are exhausted and that substantial injustice
would otherwise be done. 100 4. The Arbitration Award and Its Enforcement English
Arbitration Awards
13.60 An award made in English arbitration proceedings is enforceable:
(i) by an action on the award, based on the implied promise of parties to an
arbitration agreement to comply with the award and (possibly) the implied promise
implicit in the award itself; 101
(ii) in the same manner as a court judgment or order on application to leave
granted by the High Court (this being simply a mode of procedural speed). In substance
it is akin to the action on the award.
Enforcement (including the effect of earlier awards or judgments) is considered in
Chapter 25. Foreign Arbitration Awards
Foreign arbitration awards are enforceable (a) in the same manner as English
awards; (b) as a Convention award under the Arbitration Act 1996; or (c) as a "foreign
award" under the Arbitration Act 1950, Part II, continued in force by t he Arbitration Act
1996. These methods are discussed, together with foreign judgments, in Chapter 27.
1. See generally Mustill and Boyd, Commercial Arbitration 3rd edn, 1999;
Redfern, Law and Practice of International Commercial Arbitration 3rd edn, 1999.
Jurisdiction may also be conferred on arbitrators by an ad hoc agreement (even if a
contractual agreement is void) by conduct or estoppel. See e.g. The Almare Prima
[1989] 2 Lloyd’s Rep. 376; The Amazonia [1990] 1 Lloyd’s Rep. 236; Sim Swee Joo v.
Shirlstar [1994] LMLN 374.
2. A party may apply for a hearing in public or for an order or judgment published
(CPR 62.10). As to the approach to this provision as a start point and the balancing of
public and private interest see Moscow City Council v. Bankers Trust Co. [2004] 2
3. Report of the Department Advisory Committee on Arbitration Law, June 1989
(chaired by Lord Mustill). The Committee recommended the drafting of a new
consolidating and updated statute ( see fn. 2). For discussion of the Model Law see
(1993) 10 Arb. Int. 179 et seq.
4. An appeal on point of law is retained (s.69), but powers of the court in support
of the process are in large respects subject to the agreement of the parties (see ss.44,
45). Listed provisions are mandatory and cannot be excluded (s.4(1), Sch. 1).
5. Including allowing the tribunal to determine the considerations (s.46(1)(b)).
6. For definition see Stay of Proceedings, infra.
7. The restriction to contracting States reflects the ability to make a reservation of
reciprocity under Art. I(3) of the Convention and most states (including the UK) did so.
Orders in Council may be made declaring the parties —and such Orders are conclusive
evidence of that status (s.7). As to the declaration in force, see SI 1984/1168. Such
orders are not exclusive evidence, see Government of the State of Kuwait v. Sir
Frederick Snow & Partners [1981] 1 Lloyd’s Rep. 656, at p. 666 (Mocatta J.) (not
challenged on appeal). The Act applies to awards made in states which are parties
when enforcement action on the award is commenced rather than confined to the date of
the award (Government of the State of Kuwait v. Sir Frederick Snow & Partners
[1984] 1 Lloyd’s Rep. 458 (H.L.)).
8. Although the criteria for deciding whether matters are part of the process are
difficult to state and apply (see Chapter 5). But it would seem restricted to the parties to
the arbitration. See Vale Do Rio Doce Navegacao SA v. Shanghai Bao Steel Ocean
Shipping Co. Ltd [2000] 2 All E.R. (Comm.) 70.
8a. See 4.25.
9. Through Transport Mutual Insurance Assoc (Eurasia) Ltd v. New India
Assurance Assoc Co. Ltd [2004] EWCA Civ 1598 applied in The Front Comor [2005]
EWHC 454.
10. See discussion on jurisdiction clauses in Chapter 12.
11. See Chapter 16.
12. The time lag for reference to the Court now lengthened by limitations on power
of refusal in respect of the Regulation ( see Chapter 12).
13. So in any contract governed by a law importing those rules the validity of any
arbitration clause is dependent on compliance with the requirements. The requirements
are deemed to be part of the arbitration agreement (Art. 22(5)).
14. As to the CMR 1956 (Carriage of Goods by Road) see Carriage of Goods by
Road Act 1965, Sch., Arts 31 and 33. As to the application of the CMR to sea carriage,
see Chapter 5. As to the Athens Convention 1974 (carriage by sea of passengers and
their luggage) (enacted by the Merchant Shipping Act 1979) see Art. 17.
15. For a telling example of a basic mistake (apparently assuming agreement) see
Marc Rich v. Impianti [1992] 1 Lloyd’s Rep. 624.
16. 1996 Act, s.5. To be in writing it is sufficient for it to be recorded by any
means, there to be an exchange of communications in writing, it is evidenced in writing,
oral reference to writing, an oral agreement recorded in written submissions in arbitral
or legal proceedings and not denied (ibid.).
17. Particularly where provisions of one document are incorporated into another.
See e.g. The Nerano [1996] 1 Lloyd’s Rep. 1 (English jurisdiction and arbitration not
inconsistent given the supervisory jurisdiction of the English courts). Indian Oil Corpn
v. Vanol Inc. [1992] 2 Lloyd’s Rep. 563.
18. See e.g. The Stena Pacifica (whether included future disputes) [1990] 2
Lloyd’s Rep. 234; The Island Archon [1993] 2 Lloyd’s Rep. 388 (on appeal on a
substantive issue [1994] 2 Lloyd’s Rep. 227); The Heidberg [1994] 2 Lloyd’s Rep.
287; The Petr Shmidt [1995] 1 Lloyd’s Rep. 202.
19. Including on notice to the other party and the arbitration after arbitration
proceedings started The Jordan Nicolov [1990] 2 Lloyd’s Rep. 11; Baytur v. Finagro
[1992] 1 Lloyd’s Rep. 134.
20. See e.g. Schiffartgesellschaft Detlev v. Voest Alpine Intertrading GmbH
[1997] 2 Lloyd’s Rep. 279.
21. Lloyd v. Wright [1983] 2 All E.R. 969 (C.A.).
22. See e.g. The Angelic Grace [1995] 1 Lloyd’s Rep. 87 and Chapter 25.
23. See Marc Rich v. Impianti [1992] 1 Lloyd’s Rep. 624—a case made even
more complex by the question of whether the issue of the validity of an arbitration
agreement fell for jurisdiction purposes within the European Convention on Jurisdiction
(see Chapter 4).
24. Arbitration Act 1996, s.30.
25. Ibid., s.31(1)–(3). The right to object may be lost through taking part in the
arbitration (see n. 73).
26. Ibid., s.31(4)(5). In dealing with the matter it may rule in a jurisdiction or
mertis award (ibid.). Unless otherwise agreed by the parties the tribunal may continue
the arbitration (s.32(4)).
27. Ibid., s.32. The provisions relating to loss of the right to object (s.73) apply to
court proceedings. As to further requirements if the ba sis is tribunal permission see
s.32(2)(b). As to restrictions on appeal from any decision see s.32(5)(6). Recourse to
the court under this provision is to be seen as exceptional ( ABB Lummus Global Ltd v.
Keppel Fells Ltd [1999] 2 Lloyd’s Rep. 24. Permission to serve out of the jurisdiction
will be refused if the matter falls within s.30 ( Vale Do Rio, fn. 8).
28. As e.g. powers in support of an arbitration or issues concerning the arbitration
agreement (see Chapter 14).
29. CPR 62.5, 16, 17(4). Permission may only be granted to a party ( Vale Do Rio
Doce Navegacao SA ` v. Shanghai Bao Steel Ocean Shipping Co. Ltd [2000] 2 All
E.R. (Comm.) 70, Thomas J. As to awards see Chapter 27. As to "arbitration
application" see 4.2(5) and infra.
30. See Chapter 27.
31. As to an award see Chapter 27 and as to contracts see Chapter 9. It would
seem more appropriate to base the application on the Arbitrations Practice Direction.
But there may continue to be some difficult requirements as to supporting documentation
—and approach to the discretion. See The John C. Helmsing [1990] 2 Lloyd’s Rep.
290. See also CPR 62.16, 18.
32. See Vale Do Rio (fn. 8).
33. See Re O’s Estate [1999] 2 Lloyd’s Rep. 931.
34. Sections 4, 46. The parties may agree on consideration upon which the tribunal
will decide the dispute (s.46(1)(b)) including without reference to any particular law. In
those circumstances there could be no appeal on point of law (as to which see infra). If
the English law is applicable unless otherwise agreed the arbitration agreement is
separable from its underlying contract and death of a party will not discharge it (ss.2(5),
7, 8). As to separability see infra. As to mandatory provisions see Sch. 1 and infra.
35. The provisions are listed in Sch. 1.
36. Although an arbitration agreement is not within the scope of the Rome
Convention on Contracts ( see supra) relevant to the applicable law will be the
applicable law of the substantive contract —which may be subject to the Convention. As
to the governing law of contracts generally see Chapter 26.
37. See e.g. the CMR Art. 33—failure to apply the Convention will invalidate the
agreement—The Tor Britannia [1982] 1 Lloyd’s Rep. 410; (regarding agree ments prior
to claim arising) the Hamburg Rules Art. 22(4) —any clause inconsistent with that
provision is null and void (Art. 22(5)).
38. See The Morviken [1983] 1 Lloyd’s Rep. 1 and Chapter 26.
39. See for a comprehensive discussion The Heidberg [1994] 2 Lloyd’s Rep. 287
itself discussed in Chapter26.
40. Section 81(1)(c)—continuing the application of the principle applicable
outside the Act.
41. See the Compagnie Tunisienne case [1971] A.C. 572; The Mariannina [1983]
1 Lloyd’s Rep. 12; The Parouth [1982] 2 Lloyd’s Rep. 351 (where the arbitration
clause led to a conclusion that as English law probably governed, leave could be given
to serve a writ out of the jurisdiction); The Star Texas [1993] 2 Lloyd’s Rep. 445; Egon
Oldendorffv. Libera Corpn (No. 2) [1996] 1 Lloyd’s Rep. 380.
42. The Star Texas [1993] 2 Lloyd’s Rep. 445. As to the need for a governing law
at the start of a contract see Chapter 26. There is no such requirement in respect of the
curial law—the law governing the arbitration (ibid.).
43. Unless otherwise agreed where English law is the law applicable to the
arbitration agreement, the agreement is not invalid because of the invalidity or
ineffectiveness of any substantive agreement of which it forms part (Arbitrati on Act
1996, ss.2(5), 7). It may be that if by the proper law an arbitration agreement is invalid
the entry into arbitration by the parties will indicate an ad hoc arbitration agreement
governed by a different law—and even if that be invalid the parties may be bound by
estoppel (itself having a governing law). See The Amazonia [1990] 1 Lloyd’s Rep. 236.
44. See fn. 34 as to the application of provisions of the Arbitration Act 1996
concerning separability of the arbitration agree ment and the lack of effect on the
agreement of death of a party if English law applies to the agreement.
45. See supra. This will not necessarily be the physical place which may change.
See Naviera Amazonia Peruana v. Cie Internacional de Serguros del Pe ru [1988] 1
Lloyd’s Rep. 116. The curial law may differ from the place of an arbitral award see
Hiscox v. Outhwaite (No. 1) [1991] 3 All E.R. 641 (H.L.). As to the making of New
York Convention awards see s.100(2)(b).
46. [1993] 2 Lloyd’s Rep. 48. Saville J. thought that in respect of an English
arbitration it was not open to parties to exclude jurisdiction of the English court under
the Arbitration Acts and stressed that then it was not possible under English law to
provide for procedures unconnected to any national law.
47. See Tehno-Impex v. Gebr van Weelde Scheepvaartkantoor BV [1981] 1
Lloyd’s Rep. 587, at p. 596 (Oliver L.J.). In that case Lord Denning M.R. said that
arbitrators were not bound by the "strict rules of common law courts or the statutes
applicable to them" relating to the power (or lack of power) to award interest on money
paid late. Oliver and Watkins L.JJ. disagreed. The issue was settled as to judicial
ability as from 1 April 1983 by the conferring of power by the Administration of Justice
Act 1982, s.15, Sch. 1. As to arbitrators see 1996 Act, s.48(4). But the power does not
mean that the award may be in a currency different to that stipulated in a con tract
Lesotho Highland Development Authority v. Impregilo SpA [2004] 1 All E.R. (Comm.)
97 (C.A.).
48. Arbitration Act 1996, ss.2(5), 7.
49. See generally the analysis in Black Clawson International Ltd v. Papierwerke
Waldof-Aschaffenburg AG [1981] 2 Lloyd’s Rep. 446.
50. Arbitration Act 1996, s.7. The tribunal is to decide its own jurisdiction with
reference to the courts only exceptionally (ss.30, 31) (and see supra).
51. If the parties wish to exclude the powers of the court to support the arbitration
(s.44 of the 1996 Act) they must do so specifically. In Re Q’s Estate [1999] 1 Lloyd’s
Rep. 931.
52. See The Vikfrost [1980] 1 Lloyd’s Rep. 560.
53. The Jemrix [1981] 2 Lloyd’s Rep. 544.
54. See The Nerano [1996] 1 Lloyd’s Rep. 1 (C.A.). See further 12.58.
55. Where a party seeks leave to serve a claim form out of the jurisdiction an
English arbitration clause may indicate that the governing law of the contract is En glish
(see e.g. The Elli 2 [1985] 1 Lloyd’s Rep. 107) but if it is clear that the defendant will
elect to go for arbitration, leave would normally be refused (see A and B and D [1982]
1 Lloyd’s Rep. 166).
56. It is not taking such a step to apply for a default judgment to be set aside where
the defendant unnecessarily sought leave to defend and counterclaim but said that he
intended to seek a stay (Patel v. Patel [1999] 2 W.L.R. 322 (C.A.)).
57. Arbitration Act 1996, ss.9, 86(2)(a) (s.9 being a mandatory provision) (s.86
relating to domestic arbitration agreements ( see fn. 54) not yet in force). Such an
application may be made although exhaustion of other dispute resolution procedure is a
prerequisite of the arbitration (s.9(2)). A stay must be granted if none of the specified
grounds were present and the action was brought in respect of a matter within the
agreement. So where a “ dispute” is (as normal) the matter referred, all that was needed
was disagreement and such disagreement may be created by silence. In contrast to the
former provision because of a change in wording there is no inquiry to be made as to
whether there is in fact any dispute between the parties and no room for the summary
judgment procedure (The Halki [1998] 1 Lloyd’s Rep. 465 (C.A.)). It may be, however,
that a stay would be refused if the matter referred to arbitration was not capable of
resolution in that way (see s.81(1)(a)). As to refusal of recognition or enforcement of an
award on grounds of public policy see s.81(1)(c) and Chapter 27.
58. Section 86(2)(b). A domestic agreement is one to which no party is an
individual who is a national of or habitually resident in a state other than the UK or a
body corporate incorporated in or whose central control and management is exercised
in such a state and in which the seat is in the UK —the categorisation to be determined at
the commencement of legal proceedings (ss.85, 86(4)). The grounds may consist of lack
of readiness or unwillingness by th e applicant to do all things necessary for the
arbitration or other procedures.
59. Ahmad Al Naimi v. Islamic Press Agency [2000] 1 Lloyd’s Rep. 522. That
matter would normally be remitted to the arbitration. But it may be that if the parties
agree the court could resolve it in affidavit evidence ( ibid.). As to directions by the
court see CPR 6.2.
60. See Wealands v. CLC Construction Ltd [1999] 2 Lloyd’s Rep. 739—nothing
to remove an arbitration power to award contribution if within the arbitr ation clause.
61. Section 38. As to these powers see Chapter 14. The parties are free to agree
the powers exercisable by the tribunal for the purposes of the proceedings (s.38(1)).
62. See infra. The parties are free to agree on the tribunal’s power if a party fails
to do something necessary for the conduct of the proceedings (s.41(1)).
63. The parties are free to agree such powers.
64. See fn. 47.
65. The parties are free to agree the form of the award notification requirement,
correction of the award.
67. Whether a court may exercise powers other than those specified in support of
an arbitration is perhaps affected by the restrictive wording of the Act and the emphasis
that interim remedies are first for the tribunal. Under the previous regime the court did
so act and the Arbitration Act 1996 not being an exhaustive code there is reason to think
that, where appropriate, the powers remain. The power to grant interim injunctions
should be exercised only within the framework of the Act and in support of the
arbitration, Hiscox Underwriting Ltd v. Dickson, Manchester and Co. Ltd [2004] 1
All E.R. (Comm.) 753. However, the powers linked to a reference to arbitration, do not
encompass an injunction or damages for breach of an arbitration agreement through
issuing proceedings: Sokana Industries Inc. v. Frere and Co. Inc. [1994] 2 Lloyd’s
Rep. 57. They are "interim protection orders" —a limitation remaining relevant. See e.g.
(preventing disclosure of documents contrary to the duty of confidence stemming from
the proceedings) Hassneh Insurance Co. v. Mew [1993] 2 Lloyd’s Rep. 243; Insurance
Co. v. Lloyd’s Syndicate [1995] 1 Lloyd’s Rep. 272, delay in providing documents
(Hiscox (above). As to LOF and confidentiality see The Hamtun [1999] 1 All E.R.
(Comm.) 587. As to privilege stemming from the conduct of an arbitration between
principal and agent so as to protect documents from production in the arbitration see
Leif Hoegh and Co. A/S v. Petrolsea Inc. [1993] 1 Lloyd’s Rep. 363. As to the powers
to grant injunctions under the Supreme Court Act 1981, s.13 and interim relief generally
see Chapter 14.
68. Section 21.
69. See generally R. Thomas, Law and Practice Relating to Appeals from
Arbitration Awards, 1993, Lloyd’s of London Press.
70. Section 1(2). Subject to exclusion agreements the ability to obtain a decision of
the High Court on a question of law arising in the course of reference was retained (see
s.2). An appeal on this ground to the Court of Appeal would create unacceptable delay
in most cases (The Oltenia [1982] 2 Lloyd’s Rep. 99; [1982] 3 All E.R. 244 (C.A.)).
71. Section 32.
72. If made with tribunal consent the court must be satisfied that there will be a
substantial saving in costs and the application is made without delay (s.45(2)).
73. Section 45. An agreement to dispense with reasons for the award is to be
considered an agreement to exclude the appeal (s.45).
74. Sections 67, 72(2)(a). The right to object may be lost through continued
participation or not questioning a tribunal decision (s.73) see e.g. JSC Zestafoni Plant
v. Ronly Holdings Ltd [2004] 2 Lloyd’s Rep. 335. As to the relationship of the power
and the power of a tribunal to decide its jurisdiction see Azov Shipping Co. v. Baltic
Shipping Co. [1999] 1 Lloyd’s Rep. 68.
75. Sections 68, 72(2)(b). It is available only in "extreme cases" of serious
irregularity, The Petro Ranger [2001] 2 Lloyd’s Rep 348 e.g. failure of tribunal to
comply with procedure agreed by the parties on issues put before it or statutory duties,
exceeding powers, uncertainty as to effect of the award.
76. I.e. English law, see AEK v. National Basketball Assoc. [2002] 1 Lloyd’s Rep.
305; Reliance Industries Ltd v. Enron Oil and Gas India Ltd [2002] 1 Lloyd’s Rep.
645.
77. Section 69. See generally The Northern Pioneer [2003] 1 W.L.R. 1015. In a
domestic arbitration agreement any agreement to exclude the court’s jurisdiction is
effective only if entered into after the award (s.87) (not yet in force).
78. Save as to (iii) where the applicant has taken no part in the proceedings
(s.72(2)). The exercise of the power includes the ability of a party to obtain
clarification Torch Offshore LLC v. Cable Shipping Inc [2004] 2 Lloyd’s Rep. 446.
79. See s.70. The period may be extended under the discretionary provisions of
CPR 3.12, that being incorporated into the Arbitration Act 1996 by s.80(5), but in
applying the discretion the twin principles of party autonomy and finality must be taken
into account Kalmneft JSC v. Glencove AG [2002] 1 All E.R. 76. As to material factors
see Kalmneft as added to in Peoples Insurance Co. v. Vysanthi Shipping Co. Ltd
[2003] EWHC 1655. There is power to order security for costs ( see Chapter 14).
80. Section 72. Subject to the agreement of the parties the tribunal may rule on
these matters whether there is participation or not and appeal or review may be sought
from such a decision (s.30).
81. See e.g. The Nema [1981] 2 Lloyd’s Rep. 239 (H.L.); The Antaias [1984] 2
Lloyd’s Rep. 235.
82. Sections 67(4), 68(4), 69(6), (8).
83. North Range Shipping Ltd v. Seatrans Shipping Corpn. [2002] 2 Lloyd’s
Rep. 1 (C.A.).
84. See Aden Refinery Co. Ltd v. Ugland Management Co. [1986] 2 Lloyd’s Rep.
336 (considering the Arbitration Act 1979, but the reasoning remaining applicable).
85. Amending the Supreme Court Act, s.18(1) (as a "consequential" amendment) to
provide that no appeal will lie to the Court of Appeal except as provided by Part I of
the Arbitration Act 1996 from any decision of the High Court under that Act" (s.107,
Sch. 3, para. 37).
86. Inco Europe Ltd v. First Choice Distribution [2000] 2 All E.R. 109 (H.L.).
But not under this provision from a refusal of leave by the High Court ( Henry Boot
Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd Judgment 25 May 2000
(C.A.).
87. Section 13(1)(3)(4)(a). As to Northern Ireland see s.13(1)(4)(b).
88. Section 12. An application may be made only (i) on notice to the other party,
(ii) after a claim has arisen and (iii) exhausting any available arbitral process for
extending the time (s.12(2)). Leave of the High Court to appeal is required for any
appeal (s.12(6)).
89. If, therefore, the Hague-Visby Rules are incorporated into a contract with an
arbitration clause the provision that the cause of action is extinguished after one year
removes the power to extend the time under s.27 once the year has expired. The Antares
(Nos 1 and 2) [1987] 1 Lloyd’s Rep. 424 (C.A.)—the Hague-Visby Rules having the
force of law. Where the rules are applied by contract s.27 will be applicable (see The
Virgo [1978] 3 All E.R. 988).
90. Requiring that at least if drawn to their attention the parties would have
contemplated that the time bar would apply ( Harbour and General Works Ltd v.
Environment Agency [2000] 1 Lloyd’s Rep. 65 (C.A.). The change of law introducing
this provision could not be said to justify the application of this requirement, nor that
neither party thought of the time limit under the Hague Rules (Grimaldi, fn. 92).
91. Under the provisions replaced (Arbitration Act 1950, s.27) the test was "undue
hardship". The 1996 provision requires first that if the circumstances had been drawn to
the attention of the parties they would at the very least have contemplated that the time
bar might not apply and if so for the court to rule as to whether justice required an
extension (Harbour and General Works Ltd v. Environmental Agency [2000] 1 Lloyd’s
Rep. 65 and cases cited). As to the width of "circumstances" see Grimaldi (fn. 92); The
Catherine Helen [1998] 3 All E.R. 714.
92. See Grimaldi Compagnie di Navigazione SpA v. Sekihyo Line Ltd [1998] 3
All E.R. 943 (although Mance J. gave his view). As to whether the Court or an
arbitrator should on an application for a stay resolves any issue as to the existence of an
arbitration agreement see 49 G PD 6.2 ( Ahmad Al Naimi v. Islamic Press Agency
[2000] 1 Lloyd’s Rep. 522 and supra).
93. Section 14—a provision to be interpreted "b roadly and flexibly" —an
objectively clear reference to arbitration would probably mean an implied request to
appoint an arbitrator, otherwise commencement may only be on the ways expressly set
out. See Seabridge Shipping AB v. AC Orsslef’s EFTF’s AS [1999] 2 Lloyd’s Rep. 665
(an approach adopted in respect of the similarly worded Limitation Act 1980, s.34
(repealed and replaced by s.14) in The Baltic Universal [1999] 1 Lloyd’s Rep. but
compare Vosnoc Ltd v. Transglobal Projects Ltd [1998] 1 W.L.R. 101.
94. [1981] 2 Lloyd’s Rep. 169.
95. Ibid., at p. 175.
96. The Halki [1998] 1 Lloyd’s Rep. 465 (C.A.); Wealands v. CLC Contractors
Ltd [1999] 2 Lloyd’s Rep. 739 (C.A.).
97. Arbitration Act 1996, s.41(5)(6). Other powers if a party is in default are to
draw justifiable inferences, direct that a party is not entitled to rely on an allegation or
material or make an order for costs (ibid.). The court has power on application to order
compliance (see s.42).
98. Arbitration Act 1996, s.41(3) re -enacting an amendment to the arbitrator’s
powers introduced as from 1 January 1992. There is a further general power to make an
order.
99. See for discussion of principles prior to the CPR Lazenby v. McNicholas
[1995] 3 All E.R. 820.
100. Arbitration Act 1996, s.79. Leave of the court is required for any appeal from
the decision (s.79(6)).
101. It is argued that both elements are necessary to enforcement (Mustill and
Boyd, op. cit. Chapter 28). A plaintiff must also at le ast base his case on an award
"appearing to be regular and with jurisdiction" ( Kianta Osakeyhtio v. Britain &
Overseas Trading Co. Ltd [1954] 1 Lloyd’s Rep. 247, at pp. 250–25 1).
Part III
Interim Relief
Chapter 14
Nature and Basis of Interim Relief

14.1 Interim relief is available in English courts in connection with (i) substantive
proceedings in English courts, (ii) save for provisions for obtaining evidence 1 foreign
proceedings, (iii) as set out in the Arbitratio n Act 1996 and arguably injunctions under
the Supreme Court Act, section 137 arbitral proceedings wherever held.
14.2 Interim relief is relevant mainly to pre -judgment remedies but not exclusively
so. Some of the remedies are available and appropriate to e ither claimant or defendant
and some either to one or the other. Where the relief is to ensure that the interest of a
party is protected if judgment is in favour of that party the point of the protection could
be lost unless it continued until implementati on of the judgment or order. So, for
example, a "freezing injunction" may be granted either pre or post judgment. Interim
remedies in respect of legal proceedings before English courts
14.3 Interim remedies are the subject of Part 25 of the Civil Procedure Rules
(CPR). Fifteen different types of such remedy are listed with the qualification that non -
appearance of a remedy in the list does not affect any powers to grant it. In any event the
list must be read subject to statutory provisions and to powers conferred by other parts
of the CPR such as the Parts 61 and 62 applicable to Admiralty claims and arbitration. 2
14.4 In this context there is no reference to the arrest of or giving of alternative
security in respect of maritime property,3 measures set out in the Arbitration Act 1996 in
support of arbitral proceedings, 4 or appointment of receiver. 5 Security for costs is
treated separately in section 11 of Part 25 and is governed by plays a major part in case
management.6
14.5 It is provided that, subject to any rule, practice direction or enactment, an
interim remedy may be made at any time including (a) before proceedings are started
and (b) after judgment has been given. Whether or not a particular remedy may be so
granted depends on the remedy itself. A general limitation is that an interim remedy may
be given before a claim is made only if the matter is urgent or it is otherwise necessary
in the interests of justice. Unless the court orders, a defendant may not apply for any
remedy listed before filing either an acknowledgment of service or defence. 7 Interim
remedies in support of foreign proceedings
14.6 Apart from arrest of property and provisions for obtaining evidence all forms
of interim relief available in connection with English proceedings may be granted in
respect of foreign proceedings ( see 14.44). Arrest of property is a remedy in English
law solely in relation to maritime property and is available in respect of foreign
proceedings on the stay of English proceedings in which the property has been arrested
(see Chapter 15).8 Interim remedies in support of arbitral proceedings
14.7 These are set out in section 44 of the Arbitration Act 1996 and may be granted
wherever the seat of the arbitration (see 14.51). Interim remedies and jurisdiction
14.8 The listing of interim remedies in the Civil Procedure Rules has no effect on
the jurisdiction to grant them apart from the recognition of the remedy. 9 So provision for
an interim declaration creates the power to grant that remedy, but it does not of itself
create any power to act save in accordance with the framework of jurisdictio n based on
a substantive base or service of a claim form. 10 Jurisdiction requirements may go to
connections between England and a party, property or the issue or proceedings in being
in another State (see 14.45).
14.9 By definition an interim remedy is connected with a substantive claim but in
some instances such a remedy is available prior to a claim being made or against a non -
party,11 or in relation to foreign proceedings. 12 Where proceedings have started or are
about to start in England, there may be j urisdiction over the substantive claim that may
or may not carry with it jurisdiction in relation to any interim remedy. So powers
ancillary to the hearing of a substantive claim (such as the provision of evidence) may
follow from and be dependent on juris diction over the claim or deciding if such
jurisdiction exists.13 However, powers affecting the activities of parties during the case
(such as a freezing injunction or arrest of maritime property) will probably carry their
own jurisdictional rules. 14 Where there is a foreign element involved in the interim
remedy there must always be a jurisdictional issue. This may or may not differ
according to whether the substantive claim is before an English or foreign court or an
arbitral tribunal. Whichever it be, if the defendant cannot be served with a claim form in
England there will be a need for authority to serve outside England. 15 1. Types of
Relief and Procedure In favour of the claimant
14.10 Interim (or interlocutory) relief may be purely interlocutory or "interim" in
the sense that it eventually becomes part of the substantive remedy. The relief is of four
main kinds:
(i) the obtaining of evidence;
(ii) the controlling of property relevant to the claim or the actions of the parties as
an interim measure acting on the evidence then available;
(iii) to ensure that the defendant has assets to meet any judgment;
(iv) a substantive remedy provided prior to the hearing on the merits. In favour of
the defendant
14.11 A defendant may obtain interim relief (in addition to (i) and (ii) above as
appropriate):
(i) to obtain security for costs;
(ii) an undertaking in damages should the plaintiff lose an action or the defendant
suffer loss from an interlocutory order made against him whic h is later shown to be
unfounded. 1. In Favour of the Claimant
14.12 The basis of the award of interim relief in the High Court is fourfold —
through the Supreme Court Act 1981 16 (re-enacting the Supreme Court of Judicature
(Consolidation) Act 1925 which in turn re -enacted the Supreme Court of Judicature Act
1873) and the Civil Jurisdiction and Judgments Act 1982 (as amended), 17 the Civil
Procedure Rules 1998 and the inherent jurisdiction of the court. The effect of the 1982
Act (as amended) is to provide for the award in England of interim relief (a) in cases
where the jurisdiction of the court is at issue, (b) on references to the European Court,
and (c) (save for the obtaining of evidence and arrest of property) in respect of
proceedings within EC Regulation 44/200 1 or the Brussels or Lugano Convention in a
State party.18
14.13 In English law there has long been adequate provision for interim relief
ancillary to the proceedings on the merits and for wei ghing the factors in deciding the
extent to which conduct of the parties may be controlled pending a hearing. Where any
interim relief granted may harm the defendant, an undertaking in damages may be
imposed as a condition of the relief. As a consequence, should the plaintiff fail in his
action, the defendant would be compensated.
14.14 It was often said, however, that English law has suffered as regards the
providing of "security" in the sense of imposing restraints on the disposition of a
defendant’s assets. In 1890 in Lister v. Stubbs19 it was held that there was no right in the
plaintiff to obtain security for a claim simply because it was highly likely th at the claim
would be successful. It was to provide such security that in the early 1970s the
"Mareva" injunction was made available. Now entitled a "freezing" injunction, it is an
order to a defendant to an action not to dissipate or, if necessary, to dea l with assets
prior to judgment. It is considered in Chapter 16. (i) The obtaining of evidence
14.15 There are wide powers to order disclosure of documents, attendance of
witnesses and inspection, and preservation, custody, detention or photographing of
property and to control evidence relevant to a claim. The framework of these powers is
set out in the Supreme Court Act 1981 20 and in the Civil Procedure Rules, 21 but these
are not necessarily exclusive 22 (see infra). Further, where the remedy is general (e.g.
interim injunction) the principles on which the power and its exercise are based is not
set out in the rule. The powers relating to disclosure of documents have been extended
in recent years to provide for docu ments prior to the making of a claim and against a
person not party to proceedings in existence. 23 A search order
14.16 In 1975, in Anton Piller KG v. Manufacturing Processes Ltd 24 the Court of
Appeal held that the High Court had inherent jurisdiction 25 to make an order ex parte
that a defendant allow a plaintiff to enter premises controlled by the defendant to inspect
and remove documents relevant to a case (initially known as the "Anton Piller" order).
The power was put on a statutory basis by the Civil P rocedure Act 1997 and the order
is now known as a "search order". Admiralty proceedings
14.17 Except as otherwise provided the general powers apply. In an action in rem
the court may make an order at any stage of the proceedings for survey and appraisement
with a view to judicial sale. 26 That power will normally only be exercised in respect of
property under arrest. (ii) Controlling of actions of parties prior to hearing
14.18 The Supreme Court Act 1981, section 37(1), provides that: "The High Court
may by order (whether interlocutory or final) grant an injunction or appoint a receiver in
all cases in which it appears to the court to be just and convenient to do so."
The power to appoint a receiver is a specific type of interim relief and, except for
noting its relevance to crystallization of a floating charge ( see Chapter 17), calls for no
further comment in a maritime context. The power to grant an interlocutory injunction
now in the language of the CPR, an "interim injunction" 27 provides a general method of
temporary control.28 Interim injunctions29
14.19 Uncertainty continues as to whether the power to grant injunctions (including
interim injunctions) is limited by any criteria other than "just and convenient". In The
Siskina 30 in the House of Lords Lord Diplock saw the power as dependent on (i)
jurisdiction over the defendant and (ii) a cause of action in English law, 31 but
subsequent judicial comments have cast doubt on the justification or utility for limiting
the statutory phraseology or any categorisation. 32 It would seem preferable to require
only that the court has jurisdiction over the person against whom the injunction is
granted and (if appropriate) any assets to be affected by it.
14.20 In considering generally whether to exercise the power to grant an interim
injunction an English court would have to decide first if the grant or refusal will have
the practical effect of putting an end to the action in the sense that the harm done to the
losing party cannot be compensated. If the granting of the injunction would have this
effect the degree of likelihood of the plaintiff’s success at trial is a factor in deciding
whether to grant it and the court must approach the matter "on a broad principle: what
can the court do in its best endeavour to avoid injustice?" 33
14.21 If the granting of the injunction would not put an end to the case, the court
must be satisfied first that there is a serious question to be tried, whether damages will
be an adequate compensation and, if not, whether the defendant, if he should win, will
be adequately compensated through the plaintiff’s undertakings as to damages. If there is
a doubt about the adequacy of damages the court must base the issue (or not) of the
injunction on the balance of convenience, taking into account all relevant factors
(including the status quo and any disproportionate relative strength of the case of the
parties).34 The general statutory provision is the foundation for the power to grant an
injunction to prevent the defendant dissipating his assets prior to satisfaction of a
judgment (see infra) and to prohibit participation in foreign proceedings (the "anti -suit"
injunction) (see Chapter 25).
14.22 Failure to disclose material matters may lead to the disch arge of the
injunction.35 However, it is a matter of discretion and as part of that discretion further
injunctive relief may be granted. 36 Prohibition of dealings in a ship
14.23 A court may on application of "any interested person" prohibit for a time
specified the dealing in any ship or any share in the ship. This is a right standing on its
own in the sense that the grant is not dependent on any existing substantive claim, 37 and,
it would appear, therefore does not necessarily depend on the principles app licable
generally to interim injunctions. 38 (iii) Measures against dissipation of defendant’s
assets Preservation of property
14.24 As part of its inherent jurisdiction the court has power to restrain a
defendant to a proprietary claim from disposing of or dealing with assets where the
plaintiffs are seeking to trace property acquired by the defendant. Such a power is
ancillary to the proprietary claim and, unlike the power to grant a freezing injunction, is
based on the plaintiff’s claim to an interest in the property. 39
14.25 As mentioned in the context of the obtaining of evidence, the High Court may
make an order for the preservation of property relevant to a cause of action. 40 To this
extent the court has a power to "preserve" the defendant’s assets for his creditors, 41 and
it may be in the context of the action in rem that this can be achieved by judicial sale of
arrested property prior to the trial of the action. Such a sale may be or dered to prevent
the disappearance of security through continuing costs. 42 "Mareva" (now freezing)
injunction
History and development
14.26 In 1975 in Nippon Yusen Kaisha v. Karageorgis 43 the Court of Appeal
granted ex parte an interim injunction restraining charterers from disposing of or
removing any assets in England from England. In particular, the injunction was aimed at
money in bank accounts and the court had no doubt that the predecessor to the Supreme
Court Act 1981, section 37 (Supreme Court of Judicature (Consolidation) Act 1925,
section 45) provided the authority. One month later the principle of this decision was
challenged in the case which was to give its name initially to this type of injunction
—Mareva Compania Navieara SA v. International Bulkcarriers SA.44
14.27 In 1977, in a fully argued case —Rasu Maritima SA v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara (Pertamina) and Govt of Indonesia
(Intervener)—the Court of Appeal affirmed the pra ctice. In doing so it rejected a
contention that it was limited to cases in which the plaintiff was entitled to summary
judgment. 45 As is well known, the development of the injunction since 1975 has
occupied a good many pages of law reports and some controversial steps. It is not now
restricted to assets or proceedings in England. It can be granted in conjunction with
other modes of interim relief—in particular in addition to arrest of property 46 and it has
been combined with search orders. 47 The injunction now appears in the list of interim
remedies in the Civil Procedure Rules as restraining a party from removing any assets
from England or dealing with any assets in any place. 48 It also provides that a court has
a connected power to provide information about assets or their location which "are or
may be the subject of a freezing injunction". 49 It has been said that the injunction is
"quite a different kind to any other". 50 It and the supporting power to identify relevant
assets are considered in Chapter 16. Arrest of ship, cargo or freight
14.28 The most direct interim relief available so as to ensure a fund against which
a judgment may be enforced is through arrest of property. In this way the propert y
arrested moves to the control of the court and unless other adequate security is given,
out of the defendant’s power. 51 In English law52 arrest is restricted to maritime claims,
requires the prior institution of an action in rem, and may be exercised only against ship,
cargo or freight—and in many cases only against a ship. Arrest is considered in Chapter
15. (iv) A substantive remedy prior to hearing on merits
14.29 Clearly, this will be relatively rare but there is power to take such a step.
First and specifically an interim payment order may be made on account of any
damages, debt or other sum (except costs) which may be ordered. 53
14.30 Secondly the listing of interim remedies in the Civil Procedure Rules should
not affect the flexibility inherent in interim powers. In 1875 in Smith v. Peters it was
said (in a spirit perhaps inconsistent with Lister) that there is "no limit to the practice of
the Court with regard to interlocutory applications so far as they are necessary and
reasonable applications ancillary to the due performance of its functions, namely the
administration of justice at the hearing of the cause". So the question of interlocutory
relief may be as much about the exercise rather than existence of power. In 1982 in The
Messiniaki Tolmi 54 the Court of Appeal relied on Smith v. Peters in holding that the
High Court has power to grant an order imposing an obligation on the buyer:
(i) to sign a notice of readiness of sale of a ship, failing which it would be signed
by a Master of the Supreme Court;
(ii) to instruct the relevant bank to act so that the full amount of a letter of credit in
respect of this sale price be paid into the joint names of parties’ so licitors pending
arbitration on a claim between buyer and sellers.
The court was prepared thereby in effect to grant a decree of partial specific
performance and to allow the resulting fund to await the outcome of the proceedings —
thus illustrating its view of the broad power conferred on it. It was prepared, as it were,
to order the creation of a state of affairs for the basis of a judgment rather than simply
leaving the affairs as they were when the proceedings started. Procedure for Obtaining
of Interim Relief by Claimant
Arrest
14.31 The power of the remedy of arrest lies partly in the lack of direct judicial
control over its initial operation. Save for three exceptions a warrant of arrest is
obtainable by right (without any undertaking as to damages) once an officer of the
Admiralty and Commercial Registry is satisfied that the applicant’s affidavit discloses
the availability of an action in rem55 and the procedure of the CPR is followed. 56 The
warrant is executed (i.e. served) by the Admiralty Marshal or his substitute. 57
Other modes of interim relief
14.32 All types of interim relief save arrest require a court order which may
initially be obtained without notice to the party against whom it is sough t on application
where it appears to the court that there are good reasons for not giving notice. 58 In many
cases the effectiveness of the relief depends on its availability prior to the defendants’
knowledge (as, for example, freezing injunctions and search orders). An order made
without notice must, unless the court otherwise orders, be served on any person against
whom it was sought or granted. 59 That person may apply within seven days of service
for the order to be varied or set aside. 60 The nature of "without notice" (formerly "ex
parte") orders is essentially provisional:
"As I have said, ex parte orders are essentially provisional in nature. They are
made by the judge on the basis of evidence a nd submissions emanating from one side
only. Despite the fact that the applicant is under a duty to make full disclosure of all
relevant information in his possession, whether or not it assists his application, this is
no basis for making a definitive order and every judge knows this. He expects at a later
stage to be given an opportunity to review his provisional order in the light of evidence
and argument adduced by the other side, and, in so doing, he is not hearing an appeal
from himself and in no way feels inhibited from discharging or varying his original
order."61
Duty of disclosure
14.33 Where an application is made without notice there is a high duty on a
claimant of disclosure to summarise the evidence, identify the crucial poi nts and not
rely on general statements. 62 2. In Favour of the Defendant
14.34 Many of the interim remedies may be relevant to the defendant’s case. So,
for example, an interim injunction or preservation or sale of property are matters not
confined to the interests of the claimant. The relevant jurisdictional criteria are
identical, and the procedure dependent on the raising of a counterclaim or the making of
an application. In addition two primary methods of protecting the defendant in case the
claimant loses his case are (i) the provision of security for costs and (ii) the
requirement of an undertaking as a condition of the award of interim relief to a claimant
or counter security.
14.35 Security of costs now forms part of the framework of "interim remedies" in
the sense that it appears in CPR 25 section 11. The powers there set out are necessarily
subject to Conventions enacted into English law prohibiting a limiting security for
costs. 63 In addition it forms a critical part of powers of ca se management. An
undertaking or counter security is in substance a constituent part of interim remedies
where conditions may be attached to such a remedy. Statutory rules or rules of
procedure are relevant only insofar as provision is made for an interim remedy
otherwise unconditional to be made subject to conditions. 64 (i) Security for costs
14.36 By the Civil Procedure Rules security for the defendant’s costs in a court
proceedings may be ordered on the defendant’s application 65 to be given by a claimant
if it is just to make an order and either one of a number of conditions is met or an
enactment permits it. Apart from limited companies 66 the claimant (i) must be resident
in a State other than England, an EU Member State or a State party to the Lugano
Convention or (ii) have acted in one of specified ways indicating difficulty of contact 67
or in enforcing a costs order. 68 Security for costs is now available on appeal on t he
same basis as against a claimant 69 and in the period prior to the grant of permission
through case management powers (see 14.41).
14.37 The purpose of the rule is to ensure that a successful defendant would have a
fund within the jurisdiction available to meet costs. Although it is primarily to prevent
foreign-based claimants being immune from any order for costs it is not primarily to
provide security against a claimant lacking funds. 70 An order cannot be made against a
defendant.71 The discretion to make an order is wide and under the previous rules it was
held that it may be made even if there is a co -claimant resident within the jurisdiction.
However, unless if the action fails an aliquot order for costs may be made, or t he costs
are unlikely to be met by claimants within the jurisdiction, the discretion should not be
exercised so as to make the order. 72 There is no reason why that should not continue to
apply.
14.38 There is, however, a change in approach in the CPR refle cting case of
enforcement of judgments in EU States and those party to the European judgments
regimes 44/201, the Human Rights Convention (the right of access to a court Article 6)
and prohibition of discrimination (Article 14). Consideration should focus on
difficulties of enforcement of any costs order. Residence in a particular State did not
mean necessarily difficulty of enforcement, but notice is to be taken of reality. The
security may be tailored to meet the risk. 73
14.39 Where the claimant is not a limited company, lacking one of the specified
conditions residence abroad is the prerequisite, and that being shown or not relevant,
the court must then consider whether in all the circumstances of the case an order should
be made.
14.40 It was established in the nineteenth century that because of ease of
enforcement of judgments no security for costs order should be awarded against a
plaintiff resident in Scotland or Northern Irelan d.74 This was not, however, extended to
countries to which the Foreign Judgments (Reciprocal Enforcement) Act 1933 applies,
the relative ease of enforcement not being deemed sufficiently similar. 75 Case
management under the Civil Procedure Rules
14.41 Case management is achieved through civil procedure rules, practice
directions, pre action protocols 76 and court orders, exercising comprehensive and
diverse controlling powers set out in the rules. 77 It is under this power that security for
costs may be ordered in the period between first instance judgment and permission to
appeal.78 As part of these powers a party may be ordered to pay a sum of money as
security for any sum payable to any other party in the proceedings because of failure to
comply with a rule, practice direction or pre action protocol or as a condition of an
order.79 (ii) Requirement of undertaking or counter security
14.42 The grant of a freezing injunction ordering a defendant not to dispose of
assets prior to judgment will normally be made only on an undertaking by the claimant
to indemnify the defendant should the action fail for any loss or damage caused by the
injunction.80 An arrest of property following the issue of an in rem claim form does not
carry a like contingent liability nor will a court so order. 81
14.43 However, where property arrested is retained as security on the stay of
proceedings for an action to proceed in a foreign forum or for arbitration, conditions
may be imposed—including it would seem the provision of counter security should the
case fail.82 In 1992 the Court of Appeal refused to so order saying this would be a far
reaching change in Admiralty procedure. 83 In a different case some two months later
Saville J. did make such an order—at least until evidence of foreign law was adduced
to enable the likely success of the action to be assessed. 84 While the power to order
counter security is a welcome balance to the drastic powers of arrest 85 it is
questionable whether it was intended to make the retention of property under arrest
operate on principles so fundamentally distinct from the initial arrest. Procedure
14.44 Provision for an undertaking may appear in the claim form appropriate to the
interim remedy (as, for example, the freezing injunction) or presumably may be raised
by way of counterclaim. Otherwise any application for an undertaking or counter
security would fall within the procedure for applications to the court set out in the Civi l
Procedure Rules Part 23. (iii) Extension of Powers of Interim Relief
14.45 The power to grant interim relief is extended by the Civil Jurisdiction and
Judgments Act 1982, sections 24, 25 (as amended) 86 and by Order in Council made
under section 25. The extension is to (a) issues involving jurisdiction and reference to
the European Court, (b) foreign proceedings:
14.46 The extension in respect of foreign proceedings stems from the
implementation of Article 24 of the Brussels and Lugano Conventions and now in
addition Article 31 of EC Regulation 44/200 1 into English law and through section 25
of the 1982 Act and its extension in 1997 from proceedings in contracting states. It
applies to interim relief other than a warrant of arrest of property or for obtaining
evidence.
14.46A Section 24 reads:
(a) the issue to be tried, or which is the subject of the appeal, relates to the
jurisdiction of the court to entertain the proceedings; o r
(b) the proceedings involve the reference of any matters to the European Court
under the 1971 Protocol; or
(c) proceedings involving a reference of any matter relating to [Regulation
44/200 1] to the European Court under Article 68 of the Treaty esta blishing the European
Community.87
Section 25(1)–(4) (as amended)88 reads:
"(1) The High Court in England and Wales or Northern Ireland shall have power to
grant interim relief where—
(a) proceedings have been or are to be commenced in a Brussels or Luga no
Contracting State [or a Regulation State] other than the United Kingdom or in a part of
the United Kingdom other than that in which the High Court question exercises
jurisdiction; and
(b) they are or will be proceedings whose subject –matter is within the scope of the
Regulation as determined by article 1 of the Regulation (whether or not the Regulation
has effect in relation to the proceedings).
(2) On an application for any interim relief under subsection (1) the court may
refuse to grant that relief if, in the opinion of the court, the fact that the court has no
jurisdiction apart from this section in relation to the subject –matter of the proceedings in
question makes it inexpedient for the court to grant it.
(3) Her Majesty may by Order in Council extend the power to grant interim relief
conferred by subsection (1) so as to make it exercisable in relation to proceedings of
any of the following descriptions, namely —
(a) proceedings commenced or to be commence d otherwise than in a Brussels or
Lugano Contracting State or Regulation State;
(b) proceedings whose subject-matter is not within the scope of the Regulation as
determined by Article 1 of the regulation;
(4) An Order in Council under subsection (3) —
(a) may confer power to grant only specified descriptions of interim relief;
(b) may make different provision for different classes of proceedings, for
proceedings pending in different countries or courts outside the United Kingdom or in
different parts of the United Kingdom, and for other different circumstances; and
(c) may impose conditions or restrictions on the exercise of any power conferred
by the Order."
Power is conferred in section 25 to extend the provision partially or wholly by
Order in Council to include the proceedings other than Convention or Regulation
proceedings, 89 and proceedings commenced in states other than Convention or
Regulation States (section 25(3) to (5)). In the exercise of that power it was provided in
1997 the powers may be exercised in any type of proceedings commenced or to be
commenced in any state. 90
14.47 As a consequence of these provisions an English court has the power to
order, for example, a freezing injunction in respect of proceedings in another state. The
recognition that interim relief or provisional measures may have a jurisdictional life of
their own is also reflected in section 26 in authorising the retention of pr operty arrested
in an action in rem following the staying of proceedings for reference to arbitration or a
foreign forum. 91 It serves to underline the holding that the granting of a provisional
measure does not necessarily imply the creation of jurisdictio n over the merits. 92
14.48 In 199493 in Balkanbank v. Taher94 the Court of Appeal (reversing Clarke
J.), construing section 25 when it was confined to proceedings in a Brussels or Lugano
Convention state, held that the bringing of proceedings under section 25 for interim
relief in support of foreign actions opened the door to a counterclaim in an English court
for substantive relief in the action. Contrary to the view of Clarke J. the court viewed
with equanimity the liability to substantive relief engendered by seeking ancillary relief
for foreign proceedings. In the opinion of Saville L.J. interim relief often has an effect
as substantively powerful as substantive relief.
14.49 Most of the debate focused on construction of the rules of court and the
ability, apart from section 25, to counterclaim substantively when ancillary relief is
sought. Once that was established there was nothing in section 25 to curtail its effect.
The court stressed that Balkanba nk was not domiciled in a contracting State to the
Brussels Convention and therefore under Article 4 the jurisdiction was a matter for
English law. It remains important to stress that if the Convention rules apply it is
necessary to establish a Convention jurisdiction base.
14.50 Apart from the applicability of a Convention jurisdiction base the result is as
illogical as it is surprising. It wholly ignores the distinction between English and
foreign proceedings and used a rule of court drafted in the context of the former to
justify substantive jurisdiction under a statutory provision for supporting ancillary
relief.95 There must be doubt that the statutory implementation of Article 24 of the
Brussels Convention was ever seen as the springboard for the extension of substantive
jurisdiction. But no restriction was enacted on the extension of the power to any foreign
proceeding.
14.51 Supporting relief is thereby turned into a rival jurisdiction leading possibly
to inconsistent judgments. It seems a direction contrary to the separation of substantive
and ancillary relief as jurisdictional bases evident in other contexts ( see supra). It
neatly reverses the traditional view that the availability of interim relief depends on
substantive jurisdiction. Procedure
14.52 The application is treated in the Civil Procedure Rules as being for an
interim remedy where there is no related claim. It seems that such an application falls
not within the simple and direct provisions relating to applications generally (Part 23).
It requires a substantive claim form under the alternative procedure for claims (Part
8).96 Service out of England requires permission of the court save as provided in the
rules for cases within EC Regulation 44/200 1 the Brussels or Lugano Convention. 3.
Interim Relief in Arbitration Proceedings Powers of the tribunal
14.53 Parties may agree as to the powers of an arbitration tribunal in relation to the
proceedings. 97 Unless otherwise agreed the tribunal (i) may give directions for the
preservation or inspection of property, or preservation of evidence or direct that
evidence be on oath or by affirmation and (ii) may order security for costs by the claim.
In the latter case the power is not to be exercised on the ground of an individual being
resident outside the United Kingdom or a company incorporated or having its central
management outside the United Kingdom. 98 Power of the courts
14.54 Specific powers exercisable in relation to legal proceedings are conferred
for the purposes of arbitral proceeding to power or is unable to act effectively. 99 Unless
otherwise agreed by the parties, within these limits the court may make orders to
preserve property, the taking of evidence by witnesses, preservation of evidence,
preservation and inspection of property (including authorising entry onto property), sale
of goods, interim injunctions 100 and appointment of a receiver. 101 With the permission of the
tribunal or agreement of the parties court procedure may be used to compel the
attendance of witnesses. 102
14.55 Enforcement or recognition proceedings may be adjo urned where there is an
application to set aside or suspend the award. Security may be ordered on the
application of the party claiming enforcement or recognition. 103 Arrest of maritime
property
14.56 The powers do not encompass the arrest of property. However, property
arrested in a claim in rem may be retained as security for an award on the staying of
proceedings because of an arbitration agreement, 104 and a warrant of arrest for property
is not to be stayed or set aside simply because the proceedings concerning the
substantive matter are stayed. 105
14.57 The court’s powers in respect of interim relief extend to arbitrations even if
the seat of the arbitration is outside England or Northern Ireland or no seat has been
designated or determined. 106 The court must consider if the fact of the seat not being in
England or Northern Ireland makes the use of such power inappropriate. 107 That power
is in effect part of the discretion whether to give permission to serve a claim from out of
England.108
14.58 The interim remedies conferred on the courts and arbitration tribunals under
the Arbitration Act 1996 do not fully match those listed in the Civil Procedures Rules —
in particular there is no reference to a freezing injunction. 109 Further, powers of courts
are constrained by the powers of the tribunal and save in matters of urgency the need for
consent to any application. The conferring of the powers under the Arbitrat ion Act does
not, however, affect the powers to issue injunctions (including freezing injunctions)
under the Supreme Court Act 198 1. 110 Procedure
14.59 An application for interim relief in support of arbitration proceedings must
be made by an arbitration claim form in accordance with the Arbitration Practice
Direction.111 It may be served out of the jurisdiction with the permission of the court
(8.1). An application for service out of the jurisdiction must be, as is generally
required, by a Part 8 claim form (see infra in respect of foreign legal proceedings). 2.
EC Regulation 44/2001 and the Brussels and Lugano Conventions Provisional
measures
14.60 Jurisdiction in a national court to order "provisional measures" under the
Brussels Convention stems either from jurisdiction over the substantive matter or from
the "provisional measures" jurisdiction. 112 Where there is substantive jurisdiction there
are no further conditions 113 but provisional measures jurisdiction is confined in nature,
term of validity and with regard to connections with the court granting it. The
substantive jurisdiction bases of EC Regulation 44/200 1 or the Conventions are ex
hypothesi irrelevant, but construction by the European Court has created prerequi sites
not spelt out in the text. 114 Article 31 of the Regulation reads:
"Application may be made to the courts of a Member State for such provision
including protective measures as may be available under the law of that State even if,
under this Regulation, the courts of another Member State have jurisdiction as to the
substance of the matter." 115 Scope of the article
14.61 "Provisional measures" within the meaning of Article 24 are those "which in
matters within the scope of the Convention [and Regulation] are intended to preserve a
factual or legal situation so as to safeguard rights the recognition of which is otherwise
sought from the court having jurisdiction as to the substance of the case". 116 The
provision cannot be used to bring within the applicable regime those matters excluded
from it. However, although arbitration is so excluded, provisional measures in support
of an arbitration are not necessarily excluded. As in all contexts it depends on the right
which the ancillary measures seek to support —if that is within the matters of the regime
and the remedy sought is provisional it will be within it. 117 The remedy must, however,
be truly provisional. So an interim order for payment requiring payment of contractual
consideration is not a "provisional measure" unless repayment is guaranteed if the claim
fails and the order relates only to specific assets located or to be located in the territory
of the court.118
14.62 Within its scope the article encompasses provisional remedies in respect of
action and enforcement of a judgment 119 ordering such measures. It reflects the
distinction between provisional remedy (or interim relief) and jurisdiction on the merits
more familiar traditionally perhaps to civil law rather than common law. 120
14.63 The underlying philosophy of the Regulation and Conventions is to create a
network of common jurisdiction rules and ready recognition of judgments. To support
the structure interim relief must be available wherever within the network the merits are
to be adjudged. The effectiveness of the regime provision depends essentially on the
effectiveness of national law. 121 There is no obligation that the provisional measures
provided in each Member State are identical nor even that any interim relief be made
available122 for proceedings in Member States. The obligation is to make available such
relief as there is for home proceedings. Where the relief is discretionary there is no
prohibition of the foreign nature of the proceedings as an element in the exercise of the
discretion. The prohibition of the use of rules of "exhorbitant jurisdiction" against
persons domiciled in Member States (in Article 3) does not apply to provisional
measures. That conclusion underlines the purpose of providing such relief according to
the rules of national law, those in this context not being inconsistent with the structure of
the regime.123 Regulation or Convention prerequisites
14.64 However, the matters are not left entirely to national law. As a basic
principle, a national court will have jurisdiction only (i) where there is "real connecting
link" between the subject matters of the measures sought and the territorial jurisdiction
of the Member State of the court before which the measures are sought 124 and (ii) the
court takes into consideration the need to impose conditions or stipulations such as to
guarantee the provisional or protective character. 125 Enforcement as a judgment
14.65 A judgment awarding a provisional remedy will fall within the provisions
for judgment enforcement provided it is pronounced after an inter partes hearing126 and
is not a purely procedural ruling made in the course of litigation. 127 Consistently with
the views of the European Court it may be that a national court is not willing to make a
provisional order affecting foreign assets or acts on foreign territory when it is open to
a party to obtain such an order in the foreign jurisdiction. 128 Further where by national
law there is a discretion in awarding interim relief, it will be relevant that such an order
could be more effectively made in the foreign territory. On the other hand the court
hearing the substantive claim may be the more effective court to control measures
ancillary to it. 129
14.66 For enforcement to be available it must be shown by the judgment that it is a
judgment constituting a "provisional measure" or that it is made on the basis of
jurisdiction over the substantive matter. So a "prov isional" judgment not complying with
the conditions applicable to it as such (as, for example, for an interim payment) and not
on its face based on substantive jurisdiction has no basis for enforcement. 130 Effect of
other Conventions having priority
14.67 The Brussels and Lugano Conventions do not affect any Convention relating
to jurisdiction or recognition of judgments in particular matters whenever entered into
and the Regulation any such Convention to which a Stat e was party prior to the
Regulation coming into force regarding it. 131 So, as discussed in Chapter 6, once a case
is within the applicable regime, other Conventions of that type will apply in priority.
Provided that the "jurisdiction" given priority encomp asses provisional measures it
follows that an obligation on Member States to apply national law in support of court
proceedings in other states is subject to other Convention obligations.
14.68 So a "priority" Convention restricting the award of provisiona l measures or
making them dependent on particular conditions will apply. 132 Whether another
Convention obligation not reflected in national law would increase the scope of
jurisdiction seems more uncertain. The priority provision operates to create substan tive
jurisdiction bases in addition to those specified in the regime but where the regime base
is linked essentially to national law it must be questionable whether the provision can
indirectly enact other Convention provisions. So it must be doubtful whet her the
provisions of the Arrest Convention 1952, apart from those concerning merits
jurisdiction, are indirectly applied in English law through the regime. Multiple
proceedings
14.69 It would seem that orders for provisional measures are within the scope of
the provisions as to priority of proceedings in that as between such orders there is as
much of a risk of irreconcilability as in substantive judgments. On the other hand it is
quite clear that a provisional measure is seen as distinct from a substantive judgment
and Articles 2 1–23 therefore will not apply to affect merits jurisdiction because of the
granting of a provisional measure. Implementation in national laws
14.70 It seems arguable that, just as with other Convention provisions, the
implementation is through adoption of the Convention itself. This applies even more
directly to the Regulation which as European law is binding on Member States. The
scope of the remedies is controlled by national law but the availability for proceedings
other than in the state considering the substantive law is provided by the applicable
regime. If that is correct then the initial enactment of section 25 of the Civil Jurisdiction
and Judgments Act 1982 making most types of interim relief available in respect of
Convention proceedings in Convention states was unnecessary —and the exclusions
(arrest and provision of evidence) are of no effect in relation to Regulation or
Convention States. However it would remain necessary to classify arrest as a measure
of interim relief despite requiring the issue of a claim form for substantive relief ( see
14.69). Procedure
14.71 Whatever the force of the argument in 14.70 the English procedural rules are
focused on the 1982 Act rather than the Regulation or Conventions. As in dicated earlier
the application is to be made by a Part 8 claim form. There is no specific reference to
service out of England without permission of the court in CPR 6.19 dealing with service
out of claims under section 25 of the Civil Jurisdiction and Judgments Act 1982.
However, there is no reason to doubt that such a claim may fall within the provision
once the conditions of that rule are satisfied. 133 Arrest as a provisional measure
14.72 Assuming that section 25 is a necessary step in creating the domestic power
to implement the Convention provision, arrest or alternative security of maritime
property in English law is excluded. Its availability in respect of foreign proceedings
(including Convention States) therefore depends on the issue of an in rem claim form
and a staying of the English proceedings under section 26 of the Act. The sole issue
goes to the effect on the categorisation of arrest as a provisional measure as such and in
the context of multiple proceedings of any need f or issue of an in rem claim form to
obtain a warrant of arrest. Categorisation of "arrest"
14.73 In this context the continued dependence of arrest on the issue of an in rem
claim form cannot arguably affect the role of arrest as a "provisional measure". The
requirement simply limits the scope of arrest to a claim in being rather than one to be
brought.134 Arrest and the substantive claim as "multiple proceedings"?
14.74 In 1987 in The Nordglimt135 Hobhouse J. held that where a writ in rem had
been issued in England to obtain security while there were substantive proceedings in
personam proceedings in Belgium did not fall within Article 21 so as to attract a
mandatory stay. The focus on the difference of in personam and in rem actions in the
reasoning has been fundamentally undermined (i) by the holding of the European Court
that for the purposes of Article 21 any difference between an action in personam and an
action in rem is irrelevant and (ii) by the disapproval of the approach by the House of
Lords in holding that an action in rem just like an action in personam is against a
defendant.
14.75 To support excluding the concurrent action in rem and action in personam
from Article 21 Hobhouse J. stressed the separation of arrest and merits proceedings
recognised by the Convention Relating to the Arrest of Sea Going Ships 1952 and the
obligation to construe Article 21, if possible, consistently with the 1952 Conv ention. He
further held that retention of property arrested when the substantive issue is stayed or
dismissed because the matter is referred to arbitration or a foreign forum by virtue
under section 26 of the Civil Jurisdiction and Judgments Act 1982 consi stent with
Article 21. The Convention provision did not prevent retention of property arrested.
The reality surely lies in these supporting points in emphasising the arrest (or security)
where that is the focus and purpose of an in rem claim form. The method of achieving
the aim should be categorised as that which it is —a procedure to accomplish an end,
and it is that end which identifies the category of remedy or action.
14.76 It should now be accepted that whatever the overlap between the two types
of action, insofar as a writ in rem is issued simply to obtain security (as it apparently
was in The Nordglimt) it is Article 24 that is the appropriate Convention provision and
hence Article 21 never enters the picture. There is surely every thing to be said for
approaching national law procedure realistically and consistently with the Convention
concepts particularly where that law explicitly recognizes at least in substance the
possibility of an English arrest for foreign proceedings.
14.77 Even where Convention jurisdiction over provisional measures stems from
jurisdiction over the substantive claim the separation in Convention function between
the two remains clear. Within the Convention the issue and service of t he in rem claim
form has of itself no jurisdictional significance. Jurisdiction in an in rem context now
depends on arrest under the Arrest Convention 1952 or arrest or the giving of security
under the Collision Jurisdiction Convention 1952 —and it is recognised by the Arrest
Convention (explicitly) and by the Collision Convention (impliedly). Both Conventions
recognise the separation of functions—the Arrest Convention providing that arrest may
or may not lead to merits jurisdiction and the Collision Convention that arrest may lead
to such jurisdiction. Neither approaches arrest as such as other than a provisional
measure.
14.78 While the issue of the claim form remains n ecessary for an arrest besides
implementing Convention substantive jurisdiction based on arrest, the same "double"
function should be recognised. Because the same procedural act has two purposes it
does not mean that the two purposes should be confused or equated—in Convention
terms one is a provisional measure and the other a substantive jurisdiction base. The
criteria for adjudging the "jurisdiction" depends on which function is applicable. 136
Interim relief in support of arbitration and the Brussels Conv ention
14.79 Matters directly concerned with arbitration proceedings are outside the
Convention137 but interim or provisional measures in support of arbitration proceedings
are not thereby necessarily excluded. 138 As such measures are not "ancillary" to su ch
proceedings but parallel to them they are within the Convention if the right protected is
within its scope. So it would appear that most forms of interim relief available by court
order in English law, apart from those connected with the arbitration pro ceedings
themselves, will be within Article 24. Insofar as arrest is concerned, retention of
property after staying of legal proceedings may be seen as a measure taken to ensure that
any award is met and hence excluded. But in substance the initial arrest is in furtherance
of the underlying lien and the arbitration proceedings a method of deciding whether and
to what extent such a lien exists. So arrest would be within Article 24, and enforceable
as available in English law. Interim Relief in Favour of the Defendant
14.80 Insofar as the measures available to a claimant are also available to a
defendant the same points are relevant. The two "remedies" appropriate only to a
defendant generally, are, security for costs and an undertaking or counter security. (i)
Security for costs
14.81 An order for security for costs cannot be made against a claimant resident
out of England but in a EU Member State or a State party to the Lugano Convention. 139
The rule expands into rule form the earlier judicial conclusions tha t such an order
would, under the Brussels Convention, normally be discriminating between Community
and United Kingdom nations. Hence, it would be contrary to European law.
14.82 As the exclusion hinges on potential discrimination rather than ease of
enforcement of costs orders, residence is the critical excluding factor. The possibility
that an issue may be governed by another Convention given priority is therefore
irrelevant. (ii) Requirement of undertaking or counter security
14.83 These measures of interim relief are by definition connected with orders
made in favour of a plaintiff. Lacking any express prohibition the jurisdiction to make
any "counter order" would be therefore of identical scope as the power to make the
order in regard to which it provides a balance. In effect the counter order is a condition
of the original order and any lack of power to provide the balance could be a factor in
making the order. In the context of freezing injunctions or retention of ships under arrest
there is no ground in the Regulation or Conventions for limiting the power to impose
such conditions in favour of the defendant. 3. Measures after Judgment
14.84 As indicated earlier interim relief may need to continue until satisfaction of
a judgment. Whether it may or should depends on the nature of the relief, and unless
because of that nature or any express provision relief will not be limited to pre -
judgment.140 In English law arrest has been considered a pre -judgment remedy,141 but in
1983 in the High Court of Singapore Thean J. in The Daien Maru142 demonstrated the
illogicality of this restriction. The illogicality as the learned judge there saw it stemmed
from:
(a) the categorization of arrest as procedure and therefore the lack of any principle
in any limit to its availability because of a judgment;
(b) the need to enforce a maritime lien through arrest.
14.85 If any action in rem is procedural there can be no merger of the power of
arrest in any judgment. If arrest formed an inhe rent part of a maritime lien it made little
sense to remove its availability by a judgment declaring the lien to exist. 143 Such
arguments seem irresistible and seem confirmed by CPR 61.5 ( see Chapter 15). EC
Regulation 44/2001 and the Brussels and Lugano Conventions
14.86 "Protective measures" within the regimes include measures to enforce a
judgment144—but not methods of execution of the judgment. The extent to which such
measures are available is a matter for national law. Arrest after judg ment falls outside
the Arrest Convention but would be enforceable under the Regulation or Conventions.
1. Subject to arguable direct jurisdiction under the Brussels and Lugano
Conventions (see infra).
2. For procedure in the Admiralty and Commercial Cour ts see Guide App. 16.
3. Although there is reference to the detention of property, "arrest" of maritime
property is a distinct kind of remedy at least initially subject to little control by the
courts (see Chapter 15).
4. See infra.
5. See Supreme Court Act 1981, s.137(1).
6. See CPR 3.3, 3.5, 3.6A and infra "Security for Costs". Costs are the subject of
CPR Parts 43–48.
7. CPR 25.2. When granting before a claim is commenced the court may direct that
a claim be commenced ibid., 25.3, 4. For procedure for application to the court in
general see Part 23.
8. As to the effect of the Arrest Convention 1952 through EC Regulation 44/200 1
or the Brussels or Lugano Conventions see 14.57.
9. The provision for an interim declaration and the power to order disclosure of
assets to support a freezing injunction recognise in the rules remedies, in the first case,
judicially denied and, in the second, judicially created.
10. As to which see Chapters 3, 9, 10.
11. See e.g. CPR 21(1)(i), (j)—orders for disclosure of documents or inspection of
property. As to procedure see CPR 25.4.
12. As with freezing injunctions see Chapter 16.
13. See e.g. Canada Trust Co. v. Stolzenberg [1997] I.L.Pr. 30 (C.A.) (see infra).
Compare, however, Mackinnon v. Donaldson Lufkin [1986] 1 All E.R. 653—no power
to order production of evidence—no "subject matter" jurisdiction.
14. See infra and (as to arrest) Chapter 15 (as to freezing injunctions), Chapter 16
which may (or may not) require that there is a substantive claim in relation to the parties
and jurisdiction over it. See The Siskina [1978] 1 Lloyd’s Rep. 1 and developments
(discussed in Chapter 16); the power to issue injunctions against non parties ( see infra).
15. The only authority in the general provision for interim remedies as such goes to
support of foreign proceedings (CPR 6.20(4) see 14.44).
16. As amended by the Administration of Justice Act 1982, s.6 (provisional
damages for personal injuries).
17. By the Civil Jurisdiction and Judgments Order 2001 (SI 2001/3929) Sched. 2,
para. 9.
18. Sections 24, 25(1) and (6). This power has been extended by Order in Council
to other proceedings and other countries (s.25(3)). As to Scotland, see s.27. Property
arrested in Admiralty proceedings in England, Wales, or Northern Ireland may be
retained or other security ordered in a stay of those proceedings pending arbitration or
foreign proceedings (s.26). See infra and Chapter 15.
19. (1890) 45 Ch.D. 1.
20. Sections 33 –35.
21. E.g. 25(1)(c), (d) (inter alia) (detention, inspection sample or sale of
property), 1(g) providing information in respect of a freezing injunction, (h) search
order, (i), (j) disclosure of documents, (n) preparation and filing of accounts, 34.2
requiring witness to produce documents. There is power to give interim relief or to
order production of documents in order to decide if there is jurisdiction over the
substantive case (Civil Jurisdiction and Judgments Act 1982 s.24(1): Canada Trust Co.
v. Stolzenberg [1997] I.L.Pr. 30 (C.A.)). As to the jurisdiction see Chapter 9. As to
disclosure and its scope see CPR Part 31.
22. So it may be that powers will remain dependent on the inherent jurisdiction of
the High Court.
23. See Supreme Court Act 1981, ss.33–35; Civil Procedure Act 1997, s.8; Civil
Procedure (Modification of Enactments) Order 1998 (SI 1998/2940), CPR 31.16,
31.17.
24. [1976] Ch. 55. As to the relationship between such an order and the privilege
against self-incrimination, see the Supreme Court Act 1981, s.72. There is no such
privilege in respect of offences under foreign law but the possibility is a factor in
deciding whether to make an order for disclosure of assets as the foundation for a
freezing injunction (Arab Monetary Fund v. Hashim [1989] 3 All E.R. 461, see also
No. 2 [1990] 1 All E.R. 673): Credit Suisse Fides Trust v. Cuoghi [1997] 3 All E.R.
724 (C.A.) as to which see Chapter 16.
25. The order is in effect a mandatory injunction and, therefore, it may be argued,
is authorized by the Supreme Court Act 1981, s.37 —but even if this is so the discretion
of whether to grant an injunction in any particular case remains.
26. CPR 61.10(1).
27. CPR 25.1(1)(a). There is now also an express power to give an interim
declaration (25.1(1)(b)). An interim injunction will cease after 24 days if the claim is
struck out (25.11).
28. An injunction may be granted to a third party affected by or likely to become a
party to the action. See SCOR v. Eras Eil (No. 2) [1995] 2 All E.R. 278 (see Chapter
12).
29. The use of "anti suit" injunctions in respect of foreign proceedings has
increased. As these are not in practice "interim" unless (in some cases) the home
proceedings collapse or any conditions are not met they are discussed in the context of
substantive remedies (see Chapters 25, 27, 28).
30. [1978] 1 Lloyd’s Rep. 1. As to restrictions on freezing injunctions stemming
from the approach and their statutory removal see Chapter 16.
31. A third suggested limitation—that the claim be the subject of substantive
proceedings in an English court was rejected.
32. Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] 1
Lloyd’s Rep. 291 per Lord Browne Wilkinson, Lord Goff. See also South Carolina
Insurance Co. v. Associated Maatschappij "De Zeven Provincien" NV [1986] 2
Lloyd’s Rep. 817—two basic grounds with exceptions (per Lord Brandon).
33. Cayne v. Global Natural Resources plc [1984] 1 All E.R. 225, applying the
principle of NWL Ltd v. Woods [1979] 3 All E.R. 614.
34. American Cynamid v. Ethicon Ltd [1975] A.C. 396. An interlocutory
injunction may be granted where the only cause of action is for a declaration: Newport
AFC v. FA of Wales Ltd [1995] 2 All E.R. 87 but see now the power to grant an interim
declaration (CPR 25.1(1)(b)). As to support of foreign arbitrations, see further Chapter
13; support of foreign proceedings, Chapters 9, 16. A claim to a performance guarantee
or documentary credit may be restrained on strong evidence of fraud in the substantive
transaction: Themehelp v. West [1995] 4 All E.R. 215 (C.A.) but see Czarnikow-
Rionda Sugar Trading Inc. v. Standard Bank London Ltd (fn. 35). As to trade disputes
see Trade Union and Labour Relations (Consolidation) Act 1992, s.221(2) and
Dimbleby and Sons Ltd v. NUJ [1984] 1 All E.R. 751 (H.L.). As to the principles
applicable to a mandatory injunction see Nottingham Building Soc. v. Eurodynamics
Systems [1993] FSR 468.
35. See e.g. Brinks MAT Co. v. Elcombe [1988] 1 W.L.R. 1350 (C.A.); The
Giovanna [1999] 1 Lloyd’s Rep. 867; Czarnikow-Rionda Sugar Trading Inc. v.
Standard Bank London Ltd [1999] 2 Lloyd’s Rep. 157. An injunction may be
discharged even if had there been d isclosure it would probably have been granted.
36. See e.g. Fitzgerald v. Lloyd Williams [1996] I.L.Pr. 275 (C.A.).
37. Merchant Shipping Act 1995, Sch. 1, para. 6, re -enacting the Merchant
Shipping (Registration, etc.) Act 1993, Sch. 1, para. 6, in turn re -enacting Merchant
Shipping Act 1894, s.30. The Mikado [1992] 1 Lloyd’s Rep. 163—"interested person"
does refer to a person having or claiming a proprietary interest in a ship and does not
include a creditor seeking execution (ibid.—see Chapter 2).
38. See The Myrto [1977] 2 Lloyd’s Rep. 243 (order made modified by the C.A.
as to security for discharge of cargo [1978] 1 Lloyd’s Rep. 11). Where the action is
defended the court should examine more critically whether there is good reason for
making the order. As to the power and effect of judicial sale see Chapter 25.
39. A v. C [1980] 2 Lloyd’s Rep. 200; PCW (Underwriting Agencies) Ltd v. Dixon
[1983] 2 All E.R. 158 and cases cited therein (o rder varied by consent, see [1983] 2
All E.R. 697 (C.A.)). Save for the power to order payment into court for failure to
comply with a rule, direction or protocol (CPR 3.1(5)) an order for security of costs
cannot be made against a defendant or respondent on appeal but there may be imposition
of an undertaking to compensate (see infra), or security as part of case management ( see
14.40).
40. Supreme Court Act 1981, ss.33(1), 35; CPR 25(1)(c)(i).
41. See also 25.1(1)(l) which authorises the court to secure any specific fund at
issue.
42. For an example of delay in sale causing reduction in the fund raised see The
Lyrma (No. 2) [1978] 2 Lloyd’s Rep. 30.
43. [1975] 2 Lloyd’s Rep. 137.
44. [1975] 2 Lloyd’s Rep. 509.
45. [1978] Q.B. 644, at pp. 661, 664, i.e. under RSC Ord. 14.
46. See The Rena K [1979] Q.B. 377 and infra.
47. See e.g. Z Ltd v. A [1982] Q.B. 558.
48. CPR 25.1(1)(f).
49. Ibid., 25.1(1)(g)—but not information which may "in some remote sense" be
relevant to a possible application for such an injunction Parker v. CS Structures Credit
Fund Ltd [2003] 1 W.L.R. 1680. As to the power to refuse information on the grounds
of privilege see Chapter 16.
50. Section 37(3). Mercedes Benz A.G. v. Leiduck [1995] 2 Lloyd’s Rep. 417.
51. To prevent arrest or obtain release from arrest an owner will usually offer
security to the plaintiff. Although such an arrangement is essentially contractual the High
Court has inherent jurisdiction to control its amount. See Chapter 15.
52. Contrast Scottish law where (subject to the Civil Jurisdiction and Judgments
Act 1982) the function of arrest of property is much broader.
53. Supreme Court Act 1981, CPR 25.1(1)(k), 25.6 –9 a court may order repayment
of the sum paid and interest (25.8). See also the power to award provisional damages in
personal injury cases (Supreme Court Act 1981, s.32A, CPR 41).
54. [1982] Q.B. 1248. The House of Lords affirmed the decision ([1983] 3 W.L.R.
130) on grounds which rendered it unnecessary to deal with this point. For further
power to make a substantive order see Torts (Interference with Goods) Act 1977, s.4,
CPR 25.1(1)(e)—order for delivery of goods.
55. 61 PD 5.1(2) 61.5 (3); as to exceptions see 61.5(4) –(6). See generally Chapter
15. It was for this reason that Brandon J. held that arrest is not within the remedies made
available in respect of arbitration in the Arbitration Act 1950, s.12(1), a view affirmed
by the Court of Appeal in The Tuyuti [1984] 2 Lloyd’s Rep. 51. However, there was
until a further change in rules in 1986, a duty of full disclosure —but since that change,
subject to compliance with the rules, a claimant is entitled to issue of a warrant ( see
Chapter 15).
56. The application containing an undertaking the fees and expenses of the Marshal
(Form ADM4).
57. CPR 61.5(8).
58. CPR 25.3(1). The procedure for applications generally is set out in Part 23.
The hearing may be in private (39.2(3)). See also generally as to practice Practice
Directions 25 PD (Applications) (Interim Payments), (Interim Injunctions). As to the
procedure for interim relief in support of foreign proceedings see infra.
59. CPR 23.9. The order must contain a statement of the right to apply to set aside
or vary the order (23.9(3)).
60. Ibid., 23.10.
61. WEA Records Ltd v. Visions Channel 4 Ltd [1983] 2 All E.R. 589, at p. 593.
Once an order is executed the remedy for a defendant lies in enforceability of the
damages undertaking not in setting aside the order ( ibid.).
62. See Siporex Trade SA v. Comdel Commodities [1986] 2 Lloyd’s Rep. 428
approved by C.A. in Marc Rich and Co. Holding GmbH v. Krasner 15 January 1999.
As to interim injunctions see infra.
63. See the Conventions listed in Civil Procedure (White Book Service) 25.13.7 —
in particular in the context of admiralty claims the CMR Art. 31(5) and Conventions
prohibiting discrimination based on nationality, domicile or residence —the
Conventions concerning nuclear damage (Paris 1960; Vienna 1963 (as amended 1997))
and liability concerning nuclear ships (Brussels 1962). As to parties’ scope and
relevant contents of the Conventions see Chapter 4.
64. As e.g. the retention of security in the stay of proceedings or an Admiralty
claim (see infra).
65. For procedure see that applicable general to applications (CPR Part 23), and
the Admiralty and Commercial Court Guide App. 16.
66. Security for costs may be ordered against a limited company in England (for
terms see Companies Act 1985, s.726). As to a limited company resident outside t he
jurisdiction see DSQ Property Co. Ltd v. Lotus Cars Ltd [1987] 1 W.L.R. 127. The
criteria are much as for individuals: see Keary v. Tarmac [1995] 3 All E.R. 533 (C.A.).
A company incorporated in the Isle of Man is subject to the general discretion —s.726
does not apply (Greenwich Ltd v. National Westminster Bank Plc [1999] 2 Lloyd’s
Rep. 308). As to the limits on the power through Regulation and Convention provisions
see 14.57.
67. As e.g. change of address to evade consequences of the litigation or giving an
incorrect address.
68. CPR 25.13. An order may be made against someone other than a claimant
where there has been an assignment of the right to a claim to avoid costs or a
contribution to costs in exchange for a share in any money or property which may be
recovered (25.14). An order should not be made against a person as a condition of
joinder save as to additional costs incurred by the joinder Compagnie Noga
D ’Importation v. AN2 Banking Group [2004] EWHC 2601.
69. CPR 23.15—thereby changing the basis from "special circumstances".
70. See Porzelack v. Porzelack [1987] 1 All E.R. 1074. Unless these are assets in
the country a claimant one-ship company may expect to have such an order made, see
Berkeley Administration Inc. v. McLelland [1990] 1 All E.R. 958 at p. 964 (Parker
L.J.).
71. CT Bowring (Insurance) Ltd v. Corsi Partners Ltd [1994] 2 Lloyd’s Rep.
567. An interlocutory application by a defendant does not make that party a claimant
(ibid.). A counterclaim is to be treated as a claim (20.3) but security ordered only if it is
an independent claim or raises issues other than defence to the claim ( Thistle Hotels
Ltd v. Gamma Four Ltd [2004] 2 B.C.L.C. 174). An order may be made on terms that
the applicant comply with any further order requiring compensation to the claimant (i.e.
where no order for costs eventually made in favour of the applicant) (Admiralty and
Commercial Court Guide App. 16.5).
72. The Seaspeed Dora [1988] 1 Lloyd’s Rep. 36; [1987] 3 All E.R. 967 (C.A.)
applied in Corfu Navigation v. Mobil Shipping Co. [1991] 2 Lloyd’s Rep. 52
(emphasising the wide discretion and varying circumstances of foreign plaintiffs).
73. See the analysis in Nasser v. United Bank of Kuwait [2002] 1 All E.R. 401.
74. Through the Judgments Act 1868 ( Raeburn v. Andrews (1874) L.R. 9 Q.B.
118). As to an insolvent company see DSO Property Co. Ltd v. Lotus Cars Ltd [1987]
1 W.L.R. 127; Greenwich Ltd v. National Westminster Bank Plc (fn. 66).
75. See Kohn v. Rinson and Stafford (Bros) Ltd [1947] 2 All E.R. 839. The 1868
Act had no application to the Isle of Man but the 1933 Act applies (see Greenwich Ltd
v. National Westminster Bank Plc (fn. 66)).
76. Pre action protocols are designed to achieve openness between the parties and
in relation to categories of cases for which they are not yet in existence (as shipping)
their principles provide guidance to parties as to their appearance to a case.
77. See e.g. the general list in CPR 3.1(2). There is great emphasis on early
settlement of disputes, with Part 36 of the Rules containing comprehensive rules for the
availability of settlement offers and the costs consequences of accepting or decli ning.
78. Great Future International v. Sealand Housing Corpn. [2003] EWCA Civ
682.
79. CPR 3.3, 3.5, 3.6A. A defendant has the right to treat all or part of money paid
into court as a Part 36 payment.
80. See Chapter 16. The courts power to direct an enquiry into damages on a claim
based on an undertaking is discretionary and may be refused on the ground of abuse of
process—the basis of the jurisdiction is that the court is being asked to release or vary
the undertaking (CT Bowring v. Corsi Partners Ltd [1994] 2 Lloyd’s Rep. 567 per
Millett L.J.)—but it would seem the court is being asked to enforce the undertaking.
81. See Chapter 15.
82. Civil Jurisdiction and Judgments Act 1982, s.26(2). Further it may be imposed
on rearrest (see generally Chapter 15).
83. The Bazias 3 and Bazias 4 [1993] 1 Lloyd’s Rep. 101.
84. The Havhelt [1993] 1 Lloyd’s Rep. 523.
85. As to limited availability of damages for wrongful arrest see Chapter 15.
86. Section 24(1) as amended by the Civil Jurisdiction and Judgments Order 2001
(SI 2001/3929) Sched. 2, para. 9. There is like provision for Scotland (s.24(2)) as
similarly amended.
87. Adapting Article 234 (powers of European Court to give preliminary rulings)
to Title IV under which the Regulation is made. The power and duty to refer is restricted
to the House of Lords (Article 68.1). See further 4.11, 12.
88. By the Civil Jurisdiction and Judgments Act 1991, Sched. 2, para. 12, SI
200 1/3929, Sched. 2. Pt IV, para. 10(a) Arbitration Act 1996, Sched. 4.
89. Power to extend it to arbitration was repealed by the Arbitration Act 1996,
Sched. 4. Provision is made in that Act for remedies in support of arbitrations the seat,
i.e. the judicial centre of which is not in England (see infra). As to the concept of the
seat see Chapter 13.
90. Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (SI
1997/302) as amended in regard to the Regulation by SI 200 1/3929. See as to Scotland
(SI 1997/2780).
91. See infra and Chapter 15.
92. See The Sargasso [1994] 2 Lloyd’s Rep. 6 disagreeing with dicta in Dresser v.
Falcongate [1991] 2 Lloyd’s Rep. 557.
93. [1995] 2 All E.R. 904.
94. That at that time both substantive and interlocutory relief were claimed through
an action begun by originating summons. Now see CPR Parts 8, 23; and 14.52
"Procedure".
95. See Part 8 Practice Directions and Comment Civil Procedure 25.4.1. As to
Part 8 claims see Chapter 9.
96. CPR 6.19, 6.20(4).
97. Arbitration Act 1996, s.38(1). They may agree that the tribunal make
provisional orders for relief which is in its power to grant in a final award (s.39), but
without agreement there is no such power (s.39(4 )).
98. Arbitration Act 1996, s.38(2) –(6).
99. Arbitration Act 1996, s.44. The court may order that the order ceases to have
effect (s.44(6)). As to decisions on a preliminary point of law see Arbitration Act 1996,
s.45.
79. CPR 3.3, 3.5, 3.6A. A defendant has the right to treat all or part of money paid
into court as a Part 36 payment.
100. Section 44(1)(2). Unless urgent an application requires permission of the
tribunal or agreement in writing by all parties (s.44(3)(4)). As to the need to consider
the limits and not to usurp the function of the arbitrator see Hiscox Underwriting v.
Dickson Manchester [2004] 1 All E.R. (Comm.) 753. However in addition to these
powers in relation to injunction the court has a residual power under The Supreme
Court Act, s.37 and an inherent jurisdiction to act outside the limits —but it would be
exceptional to act in this way (ibid.).
101. Ibid., s.44(1)(2).
102. Ibid., s.43. The witness must be in the United Kingdom and arbitral
proceedings conducted in England or Northern Ireland (s.43(3)). A person cannot be
compelled to produce evidence which he cou ld not be compelled to produce in legal
proceedings (s.43(4)).
103. But only when there is a true adjournment and not as a condition of non -
enforcement Yukos Oil v. Dardana Ltd [2002] EWCA Civ 543.
104. Arbitration Act 1996, s.11. See further Chapters 13, 15.
105. The Tuyuti [1984] 2 Lloyd’s Rep. 51. See Chapter 13.
106. Arbitration Act 1996, s.2(3). The limits of s.43 relating to attendance of
witnesses continue to apply. As to procedure see 62 PD 7.
107. Arbitration Act 1996, s.2(3).
109. Although there is reference to "interim injunctions".
110. See Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] 1
All E.R. 664 (H.L.). As to the relevance of a need for a legal or equitable substantive
right see Chapter 16.
111. 62 PD 8.1. As to the procedure for injunctions under the Supreme Court Act
1981, see Chapter 25.
113. See the Van Uden case (fn. 116), para. 19; Mietz v. Intership Yachting Sneek
BV C99/96 [1999] I.L.Pr. 541, para. 41.
114. This applies not only to those based on the subject -matter of the claim but also
to appearance by the defendant (see Mietz v. Intership Yachting Sneek BV). It must also
apply to a jurisdiction agreement. If the matter is within Art. 24 the bases are not
needed, if it is not neither base will bring it within the Convention ( ibid.).
115. The Convention’s text is identical in substance. Implemented in English law
by Civil Jurisdiction and Judgments Act 1982, s.25 (as to which see supra). The
Brussels Convention has been applied as between the United Kingdom and Gibraltar as
if each were a separate contracting State (SI 1997/2602) —and the principles of the
Convention therefore applies in that context. As to the Regulation see Chapter 4.
116. Van Uden Maritime BV v. Kommanditgesellschaft in Frima Deco -Line
C391/95 [1999] I.L.Pr. 73 (ECJ); Reichert v. Dresdner Bank (No. 2) 261/90 [1992]
I.L.Pr. 404—an action seeking to alter rather than preserve the circumstances of the case
is not within Art. 24. It is irrelevant that substantive proceedings have started elsewhere
(the Van Uden case).
117. Ibid., para. 34.
118. The Van Uden case (fn. 116), para. 47; Mietz v. Intership Yachting Sneek BV
C99/96 [1999] I.L.Pr. 541.
119. See infra. As to enforcement of judgments see Chapter 28. It has been held by
the Irish High Court that measures ancillary to the enforcement of a foreign judgment
must be ordered once there is an order for enforcement and jurisdiction to make the
order: Elwyn (Cottons) Ltd v. Pearle Designs Ltd [1990] I.L.Pr. 40.
120. Until recently English law has seen interim relief as essentially connected
with proceedings on the merits and limited the power to grant such relief to support for
proceedings in English courts. In particular arrest depends on the issue of an in rem
claim form and the Mareva injunction initially depended on the assertion of a right
under English law and proceedings in an English court to enforce that right.
121. So it is the national law which determines the scope of the interim relief (see
Re an Italian Cargo of Adulterated Wine [1991] I.L.Pr. 473 (Oberlandsgericht
Koblenz); Lowland Yachts BV v. Firma Dahm International [1991] I.L.Pr. 350
(District Court The Hague)).
122. There is no prohibition on making the interim relief available when not within
the Convention (e.g. prior to the Convention coming into operation): Alltrans Inc. v.
Interdom Holdings Ltd [1991] 2 All E.R. 571 (C.A.).
123. The Van Uden case (fn. 116), para. 42. The prohibited rules are set out in Art.
3 and the prohibition applies to Arts 2–18 dealing with substantive claims.
124. Ibid., para. 39 following Denilauler v. SNC Couchet Freres (fn. 55).
125. The Van Uden case (fn. 116), paras 40, 41, in particular the limiting of the
measure to a period of time.
126. Denilauler v. Couchet Freres 125/79 [1981] 1 CMLR 62 which in England
should then be certified forrecognition and enforcement. See Normaco v. Lundman, The
Times, 6 January 1999. See generally Chapter 28.
127. See CFEM Facades SA v. Bovis Construction Ltd [1992] I.L.Pr. 561.
128. See Derby v. Weldon (No. 2) [1989] 1 All E.R. 1002 (C.A.). See Chapter 16.
129. See CFEM Facades case (fn. 56).
130. Mietz v. Intership Yachting Sneek BV [1999] I.L.Pr. 541 (ECJ). The court
thereby avoided the charge that refusal to enforce meant considering the jurisdiction of
the adjudicating court by categorising the judgment as concerned with a matter not
within the Convention. As to enforcement of judgments see Chapter 28.
131. Regulation Art. 71, Conventions Art. 57.
132. As, for example (insofar as it still applies), the Hague Convention concerning
the service of documents in relation to interlocutory orders. See the CFEM Facades
case (fn. 117).
133. See Haiti v. Duvalier [1989] 1 All E.R. 456. As to the conditions see
Chapter 9.
134. As to nature of arrest and its rela tion to the action in rem, lien and judicial
sale, see Chapter 15.
135. [1987] 2 Lloyd’s Rep. 470.
136. In The Anna H [1995] 1 Lloyd’s Rep. 11 the C.A. held that under the Arrest
Convention there could be an arrest to found jurisdiction even if there was other
adequate security an arguably overenthusiastic recognition of the double function,
perhaps only then being appreciated in English law.
137. See Marc Rich v. Societa Impianti [1992] 1 Lloyd’s Rep. 342 and Chapter 4.
138. Van Uden Maritime BV v. Kommanditgerettschaft In Firma Deco -Line
[1999] I.L.Pr. 73.
139. Unless one of a number of conditions is met. These conditions go to actions
which would make enforcement of an order difficult (e.g. changing address with a view
to evading the consequence of the litigation). See CPR 25.13.
140. CPR 25.2(1); Orwell Steel v. Asphalt and Tarmac (UK) [1984] 1 W.L.R.
1097; [1985] 3 All E.R. 747.
141. See The Alletta [1974] 1 Lloyd’s Rep. 40. But see new CPR 61.5(1)(b) —
declaring arrest available to a judgment creditor in rem.
142. [1986] 1 Lloyd’s Rep. 387.
143. For availability through an action in rem to enforce a foreign judgment see
The Despina GK [1983] Q.B. 214; [1982] 2 Lloyd’s Rep. 555 and Chapter 10. See
generally Chapters 10, 15, 17.
144. Protective measures are excluded from the prohibition of enforcement
measures while an appeal ispending and the decision authorising enforcement carries
with it the power to proceed to such measures (Regulation Art. 47, Conventions Art.
39).
Chapter 15
Arrest and Alternative Security 1. Introduction The Three Functions of Arrest

15.1 Arrest is a powerful weapon. Its availability in English law is consequent
only on the property being arrestable, the claim enforceable by an action in rem and the
issue of the claim form in rem. It does not depend on showing an arguable claim or that
any judgment may not be met. There is no cross undertaking in damages and its effect on
third parties is irrelevant.
15.2 The arrest of maritime property has three possible functions. First, and most
obviously, it is a form of interim remedy —a "saisie conservatoire" (and in this context
it should be noted that a creditor may obtain some protection through a caution against
release). Secondly, it may operate as a ground of jurisdiction over the merits. Thirdly, it
is a primary method of ensuring the availability of judicial sale, itself the means of
implementing the interest conferred or enforced through the action in rem. The civil law
approach
15.3 In civil law countries maritime and civil procedure codes aid in
distinguishing between these three functions. The questions of jurisdiction and arrest
will be dealt with usually in the Code of Procedure and in many cases independently of
each other. Often "arrest" is relevant only as an interim remedy and there will us ually be
provision for security (such as bail or guarantee) which may prevent arrest or cause the
property to be released from arrest. Jurisdiction on the merits may be based on a more
substantial contact between the country and the issue than the seizure of a ship
temporarily there.
15.4 Security for the merits claim is based on the classification of claims as
preferred claims which give priority over unsecured creditors and, in additio n, may
confer enforceability of the claim against purchasers from the person against whom the
claim is made. These preferred claims are sometimes labelled "liens" and will be set
out in the Maritime or Commercial Code. The approach in English law
15.5 In English law arrest is a component part of the action in rem. It is available
on the issue of the claim form in rem and is therefore dependent, initially at least, on
jurisdiction in the substantive action. For this reason jurisdiction issues are commonl y
discussed in terms of the right to arrest. Its function in this context is in reality one of "
security", i.e. to ensure that the asset is available for enforcement of a judgment.
However, it may be that through the indirect operation of Conventions (or arguably
without) arrest is itself a jurisdiction base. Alternative Security
15.6 Arrest may be prevented or ended by the provision of alternative security
through bail, payment into court, where liability may be limited through the setting up of
a limitation fund, or the provision of a guarantee or undertaking. Bail or payment into
court provides a fund (notional or actual) representing the ship for the claimant and
proceedings continue on that basis. A limitation fund provides adequate security for all
claimants under the control of the court. A guarantee or undertaking, however, is
contractual, and does not provide any fund for claims, but simply an agreement
enforceable on the conditions specified in it. Whether or not the agreement is in addition
to or replaces any lien will depend on its terms. Its replacement of arrest will not of
itself affect the existence of any lien —the lien not being dependent on arrest. The
"security" (both provisional as replacing arrest and on the merits claim as arguably
replacing any lien) is therefore contractual in nature.
15.7 A less effective but less costly protection than arrest may be acquired once a
ship has been arrested by another through the lodging of a caution against release from
arrest. Such action will ensure that the ship is not released without an opportunity being
given to the person entering the caution to rearrest. Caution, methods of alternative
security and the effect of establishment of a limitation fund are discussed after the
review of arrest. 2. The International Scene
15.8 On the international scene arrest as an interim remedy and arrest as a
jurisdiction base are matters which are the primary subjects of the International
Convention Relating to the Arrest of Sea Going Ships 1952 (hereafter "the Ar rest
Convention 1952") and the International Convention on Arrest 1999 (hereafter "the
Arrest Convention 1999"), 1 while the proprietary and security aspects of maritime
claims are the subjects of the Convention for the Unification of Certain Rules Relating
to Maritime Liens and Mortgages 1926, 1967 and 1993. The latter Conventions refer to
arrest only in the context of the nature of the claims which attract a security interest.
They will be discussed in Part III.
15.9 The present scene is largely governed b y the Arrest Convention 1952. This
Convention, which required only two ratifications to bring it into force, had been
ratified by 20 May 2002 by 77 states, including the United Kingdom. It has taken on an
enhanced importance through its enforcement by the Brussels and Lugano Conventions
and EC Regulation 44/200 1 for those States parties to it prior to being party to the
Regulation in preference to the provisions of those regimes. It provides for arrest as an
interim remedy in support of a maritime claim and for jurisdiction based on arrest. The
Arrest Convention 1999 was signed in March 1999 and is intended to replace the 1952
Convention. It is not yet in force.
15.10 Other maritime Conventions providing for jurisdiction bas ed on arrest are
the Collision (Civil Jurisdiction) Convention 1952 and the Hamburg Rules. The
availability of arrest both as a provisional remedy and as a jurisdiction base is
restricted by the Convention Relating to Liability for Maritime Claims 1976 on the
setting up of a limitation fund.
15.11 In English law "arrest" necessarily implies the existence of a lien. This is
partly a matter of terminology and party a matter of history. On the international scene
the Arrest Convention 1952 refers only to the n on-creation of maritime liens through any
of its provisions. Liens are the subject of three Conventions of 1926, 1967 and 1993.
These Conventions set out to provide a framework for the creation and priority of liens
and mortgages. In their turn, they refer to arrest only as a means of enforcement of a lien
and thereby reflect the civil law in separating the claim and its preference from the
remedy. This carries its own defects—in particular the uncertainty of the affect of arrest
on third party proprietary interests. The desirable framework calls for connection with
but distinction between the concepts and functions of arrest, jurisdiction and liens. To an
extent this is recognized by the Arrest Convention 1999. Convention Relating to the
Arrest of Sea-Going Ships 1952
15.12 This Convention is concerned with arrest as (i) a provisional remedy, and
(ii) a ground for jurisdiction on the merits. It defines arrest for its purposes as "the
detention of a ship by judicial process to secure a maritime claim" — it "does not
include the seizure of a ship in execution or satisfaction of a judgment". The Convention
is limited to seagoing ships. It specifies (in Article 1) the only claims in regard to which
a ship may be arrested ("maritime claims") and (in Article 7) the circumstances in
which a court of the country in which the arrest was made has jurisdiction to adjudge the
merits.2 Subject to proof of good cause a ship may not be arrested or bail or other
security given more than once in any one or more of the jurisdic tions of any of the
contracting States by the same claimant for the same claim (Article 3(3)).
15.13 The Convention applies to any vessel flying the flag of a contracting State in
the jurisdiction of a contracting State; and in addition provides that ships of non-
contracting States may be arrested in the jurisdiction of a contracting State for any of the
Convention maritime claims and any other claim for which arrest is permitted by the
domestic law of the contracting State. 3 Finally, and importantly in the light of other
Conventions, a contracting State may exclude from the effects of the Convention any
person who at the time of the arrest does not habitually reside or have a principal place
of business in a contracting State. 4
15.14 The list of maritime claims is long and wide in scope. All are closely and
directly connected with maritime operations. 5 The Convention provides for the arrest of
the ship in respect of which the claim arose or (unless a charterer or other person is
liable on the claim) another ship owned by the owner of the ship in respect of which the
claim arose.6 If the charterer and not the owner is liable in respect of the claim, 7 the
offending chartered ship or any other ship owned by the charterer may be arrested. A n
arrested ship may be released on the lodging of adequate security and a court which
lacks merits jurisdiction may require security from the defendant for a merits action
elsewhere8 prior to releasing the ship.
15.15 For jurisdiction on the merits dependent on the Convention there must be one
of a number of specified links between the claim and the country (e.g. habitual residence
of the claimant, the place where the claims arose), the claim must concern the voyage
during which the arrest was made or be a collision, salvage or mortgage claim. In
addition, the Convention recognizes any circumstances in which a domestic law permits
jurisdiction on the merits. 9 In particular, this means that those countries such as England,
Scotland and the United States, which permit jurisdiction based on the availability of
arrest, may become parties and maintain their domestic laws at international level. It
follows that those countries parties to the Convention not allowing "arrest" as a
jurisdictional ground must come into line to provide such jurisdiction on the basis of the
specified links to fulfil their international obligations. Nothing in the Convention is to be
construed as creating a right of action which, apart from the Conventio n would not arise
under the domestic law of the court having jurisdiction, nor as creating any maritime
lien not existing under such law or the Convention on Maritime Mortgages and Liens if
applicable. International Convention on Arrest of Ships 1999 10
15.16 The format of the Convention is similar to that of 1952, but it is drafted in a
much more precise way. In particular, the uncertainty of substantive rights in an arrested
ship is removed and the power of arrest dependent more closely on the person liabl e on
the claim being linked with the ship at the time of arrest. Jurisdiction on the merits
becomes a Convention concept with qualifications for national laws. The difficulties of
EU Member States becoming parties is discussed in Chapter 6.
15.17 The definition of arrest is extended to include "restriction on removal" as
well as detention of a ship, still excluding arrest in execution or satisfaction of a
judgment (Article 1(2)). It is not restricted to a sea going ships (as in the 1952
Convention), but parties may exclude non-sea going ships, ships not flying the flag of a
State Party, any dispute as to ownership or possession of a ship or if a party to a
specified treaty on inland waterways may declare that Treaty shall take precedence as
to jurisdiction and recognition and execution of court decisions (Article 10).
15.18 The application of the Convention is extended to any ship within the
jurisdiction of a State Party. It does not apply to ships on government non -commercial
service, rights of detention of public authorities, national law affecting the totality of a
debtor’s assets, or Conventions relating to limitation of liability. Further, it does not
affect national laws relating to arrest in a state of a ship with a flag of that state by a
person whose habitual residence or principal place of business is in that state (Article
8). Nothing in the Convention is to be construed as creating a maritime lien (Article 9).
15.19 "Maritime Claims", i.e. those for which a ship may be arrested, are extended
to include environmental damage or threat, insurance premiums and brokerage fees paid
on behalf of the owner (Article 1(1)). A ship may be arrested only by a court. It may be
subject to provision of security by the claimant for wrongful arrest or excessive security
(Article 6). The arrest may be to obtain security even though, by virtue of a jurisdiction
or arbitration clause, the merits are to be adjudicated elsewhere or arbitrate d (Article
2). There may be no arrest if security has been provided (Article 5(1)). Another ship
may be arrested for the same claim only if the security provided by the first arrest is
inadequate or defective (Article 5(2)). Powers of arrest
Subject to qualification in respect of ships not owned by the person liable on the
claim, grounds for arrest of the ship in respect of which the claim has arisen are that:
(i) the person owning or demise chartering the ship is liable for the claim and wa s
owner or demise charterer of the ship when the claim arose and at the time of arrest
owner or in the case of the demise charterer such a charterer;
(ii)it is based on ownership possession or mortgage;
(iii) the claim attracts a maritime lien and is against the owner, demise charterer or
manager or operator of the ship (Article 3(1)).
Further, any other ship owned by persons liable may be arrested if it is so owned
when arrest is effected and the owner was when the claim arose owner, demise time or
voyage charterer of the ship in respect of which the claim arose (Article 3(2)).
However, the arrest of a ship not owned by the person liable is permissible only if by
national law the claim can be enforced against that ship by judicial or forced sale
(Article 3(3)). So a gap of the 1952 Convention is filled.
15.20 Save in claims of ownership or possession a ship must be released on the
provision of adequate security. In ownership and possession claims there is a discretion
to deal with the operation of the s hip (Article 4). A ship may be rearrested if the
security is inadequate or defective (Article 5(1)). Jurisdiction on the merits (Article
7)11
15.21 Subject to a jurisdiction or arbitration agreement, jurisdiction on the merits
is conferred by arrest of the ship "or security provided to obtain the release of the
ship" . Surprisingly, given the prohibition of arrest if adequate security has been given,
there is no provision for merits jurisdiction on such security. Moreover, the e xercise
of jurisdiction may be refused if permitted by national law and another state accepts
jurisdiction. On such refusal a period of time within which the action should be brought
may be specified. Without limiting any general rules of recognition of ju dgments, any
judgment given in such proceedings is to be given effect to in relation to the arrested
ship or security, provided the defendant had a reasonable opportunity to present the case
and the recognition is not against public policy. The Arrest Conv ention 1952, EC
Regulation 44/200 1 and the Brussels and Lugano Conventions
15.22 The relationship of the Arrest Convention 1952 to (i) the Brussels and
Lugano Conventions and (ii) EC Regulation 44/200 1 has been discussed in Chapter 6 in
relation to substantive jurisdiction and in Chapter 14 in respect of arrest by way of
security. The Regulation and Brussels and Lugano Conventions (the regimes) and also
the Arrest Convention distinguish between merits a nd provisional measure jurisdiction
as such. It is clearly envisaged by the regimes that there may be jurisdiction to award a
provisional measure in one jurisdiction but jurisdiction over the substantive matter in
another.12 On the other hand, under the regimes jurisdiction over the substantive matter
confers jurisdiction over provisional measures. 13
15.23 So where substantive jurisdiction is based on arrest or any other base there
would be jurisdiction in relation to arrest as a provisional measure. Where there is no
such jurisdiction any power to order a provisional measure depends on the scope of that
power and the application of measures available under national law. So provisional
measures apart from substantive jurisdiction are clearly within the regim es with their
nature dependent on national law. However, there are provisions in the Arrest
Convention for arrest (and release on security) in a state having no jurisdiction on the
merits and, it would seem that these would mean that any such power must be in
accordance with that Convention
Arrest as a jurisdiction base
15.24 The effect of the primacy given to the Arrest Convention is, that in respect of
cases within the ambit of any one of the regimes, arrest of a ship becomes a ground of
jurisdiction on the merits. It has been held by the Court of Appeal that in the Arrest
Convention the defining of arrest as "to secure a maritime claim" does not mean that
where there is alternative security an arrest to establish jurisdiction is not within that
Convention.14 The definition simply indicates that the Convention is concerned only
with maritime claims and that as a consequence of the arrest it is security for the claim.
The commercial motive of the arrester is not relevant.
15.25 With respect the reasoning seems dubious. As the Court said, there is no
express prohibition of refraining from arrest if security has been provided. However,
there is a mandatory direction to release if adequate security has been given to prevent
or obtain release. 15 The conclusion of the Anna H seems to recognise an arrest directly
contrary to the letter of the Convention, and to ignore the provision that under the
Convention the ground for merits jurisdiction is arrest or provision of security. The
equation of the two seems almost in controvertible. The Collision (Civil Jurisdiction)
Convention 1952
15.26 This Convention is enacted into English law through section 22 of the
Supreme Court Act 1981. It provides a severely restrictive jurisdiction framework for
collision actions (see Chapter 6). Subject to any jurisdiction agreement, actions must be
brought before the court of the habitual residence or place of business of the defendant,
the place of collision where it has occurred in a port or inland waters, or the place of
arrest or any bail or security provided instead of arrest.
15.27 The Convention is concerned with arrest as a substantive jurisdiction base
and contains no reference to provisional measures. The Convention and its relationship
to the Brussels and Lugano Conventions are matters discussed in Chapter 6. The
Hamburg Rules 1978
15.28 The Hamburg Rules came into force on 1 November 1992. Article 21(1), (2)
and (5) of the rules provides—
"1 In judicial proceedings relating to carriage of goods under this Convention the
plaintiff, at his option, may institute an action in a court which, according to the law of
the State where the court is situated, is competent and within the jurisdiction o f which is
situated one of the following places:
(a) the principal place of business or, in the absence thereof, the habitual residence
of the defendant; or
(b) the place where the contract was made provided that the defendant has there a
place of business, branch or agency through which the contract was made; or
(c) the port of loading or the port of discharge; or
(d) any additional place designated for that purpose in the contract of carriage by
sea.
2(a) Notwithstanding the preceding provisions o f this article, an action may be
instituted in the courts of any port or place in a Contracting State at which the carrying
vessel or any other vessel of the same ownership may have been arrested in accordance
with applicable rules of the law of that State and of international law. However, in such
a case, at the petition of the defendant, the claimant must remove the action, at his
choice, to one of the jurisdictions referred to in paragraph 1 of this article for the
determination of the claim, but before such removal the defendant must furnish security
sufficient to ensure payment of any judgment that may subsequently be awarded to the
claimant in the action.
(b) All questions relating to the sufficiency or otherwise of the security shall be
determined by the court of the port or place of the arrest.
5 Notwithstanding the provisions of the preceding paragraphs an agreement made
by the parties after a claim under the contract of carriage by sea has arisen which
designates the place where the claimant may institute an action is effective."
When the Hamburg Rules apply, they will govern jurisdiction. Unless an English
court views its jurisdiction outside the Rules as mandatory, an action brought in an
English court on a claim governed by a law ado pting the rules may therefore be stayed
because that law dictates the jurisdiction. 16 Where the ship has been arrested the action
should be stayed on the application of the defendant and not in accordance with rules
generally applicable to stay. 17
15.29 The rules do not apply to or affect provisional remedies. 18 Arrest as a
ground of merits jurisdiction, it appears, was a compromise reached between those
countries which in their domestic laws recognize it as founding jurisdiction, and those
which reject it as a foundation, maintaining that the contact of arrest between a country
and an issue is minimal.
15.30 The rules also provide for arbitration. 19 They specify permitted places
which, apart from the place of arrest, mirror those where a claim may be broug ht. Under
the Rules arrest has no place as a foundation for arbitration proceedings.
15.31 Finally, it should be noted that the operation of Article 21 may be modified.
If a contracting party is a party to another multilateral Convention relating to
jurisdictional matters, that Convention may be applied provided that the dispute in
question arises between parties having their principal place of business in states
members of such other Convention. 20 As a result, the Arrest Convention and the
Hamburg Rules are brought more into line with each other, but some conflict remains.
The Arrest Convention may be excluded in respect of persons neither habitually resident
nor having their principal place of business in a contracting State. The Hamburg Rules
permit the application of the Arrest Convention rather than their jurisdictional
provisions only where both parties have their principal place of business in contracting
States to the Arrest Convention. Both the Rules and Convention will therefore apply to
persons habitually resident, but not having their principal place of business, in States
contracting parties to both Conventions. Convention on the Contract for the
International Carriage of Goods by Road 1956 (the CMR)21
15.32 In passing, we should take account of the CMR Convention; for Article 2
applies it to carriage by modes other than road in the case of "piggy -back" transport. It
provides:
"1 Where the vehicle containing the goods is carried over part of the journey by
sea, rail, inland waterways or air, and, except where the provisions of article 14 are
applicable, the goods are not unloaded from the vehicle, this Convention shall
nevertheless apply to the whole of the carriage. Provided that to the extent that it is
proved that any loss, damage or delay in delivery of the goods which occurs during the
carriage by the other means of transport was not caused by an act or omission of the
carrier by road, but by some event which could only have occurred in the course of and
by reason of the carriage by that other means of transport, the liability of the carrier by
road shall be determined not by this Convention but in the manner in which the liability
of the carrier by the other means of transport would have been determined if a contract
for the carriage of the goods alone had been made by the sender with the carriage by the
other means of transport in accordance with the conditions prescribed by law for the
carriage of goods by that means of transport. If, however, there are no such prescribed
conditions, the liability of the carrier by road shall be determined by this Convention.
2 If the carrier by road is also himself by the other means of transport, his liability
shall also be determined in accordance with the provisions of paragraph 1 of this
article, but as if, in his capacities as carrier by road and as carrier by the other means of
transport, he were two separate persons."
The Hamburg Rules provide for the application of the CMR. 22 But there may be a
conflict between the jurisdictional rules of the CMR (which do not include arrest as a
ground)23 and the Arrest Convention. The only reference in the CMR to provisional
remedies is to exclude interim judgments from the obligation of member States to
recognise judgments given in actions brought in accordance with the Convention. 24
Conventions Relating to Limitation of Liability 1924, 1957 and 1976
15.33 All these Conventions include provisi ons for the release from arrest of a
ship after the constitution of a limitation fund. The United Kingdom is a party to the
1976 Convention. 25
15.34 Article 13(2) of the 1976 Convention is set out infra in the discussion on
release from arrest. It provides for mandatory release of any property arrested or
attached if a limitation fund is constituted in the country or port where the occurrence
took place or the next port of call if on the high seas, the port of disembarkation or
discharge of cargo or where an arrest was made. If the fund is in any other place release
is discretionary.26
15.35 By Article 13(3) the release provisions apply only if the claimant may bring
a claim against the fund in the court administering it and o nly if the fund is "actually
available and freely transferable in respect of that claim". In those circumstances there
is no justification for any security in addition to the fund. The matter is discussed in the
context of limitation of liability in Chapter 24. Summary
15.36 The international scene, therefore, is that there is a general framework to
which states can adhere governing the role of arrest as a jurisdiction ground for merits
actions. But only the Arrest Convention 1952 and the Convention on Limi tation of
Liability 1976 are concerned with arrest as a provisional measure, and only the Arrest
Convention with defining the property which may be arrested.
15.37 EC Regulation 44/200 1 and the Brussels and Lugano Conventions have
increased the direct effect of the Arrest Convention in English law. Apart, however,
from the enactment of the various Conventions (directly or indirectly) it is to national
laws that we must turn. Where a Convention is enacted into national law care must be
taken to assess whether it is so enacted only in respect of other State parties or whether
it has simply become part of that law. 27
15.38 The function of arrest as a means of security in the sense that its availability
of itself may provide a preferred status is nowhere dealt with on an international level.
The Conventions on the Unification of Certain Rules Relating to Maritime Liens and
Mortgages 1926, 1967 and 1993 deal with liens (particularly maritime liens) and rights
of retention. They refer to arrest only in the context of liens and assume that such a lien
carries with it the right to arrest. But they do not deal with the right to arrest as such.
15.39 Conversely the Arrest Convention 1952 deals with the right to arrest but,
apart from the declaration that nothing in the Convention creates a right of action, does
not provide for the consequences of the arrest on the property rights of persons
interested inthe property arrested. If there is no effect then once the hearing on the merits
takes place the property should be released. The Arrest Convention 1999 meets this
point by limiting the right to arrest to circumstances in which the claim can be enforced
against the ship by judicial sale (as to which see Chapter 25). 3. The Arrest
Framework in English Law Arrest and the Action “in Rem” The Arrest Convention
and English law
15.40 In English law arrest is a component part of the action in rem. Its necessary
connection with the action in rem seems to have led to a failure to put national law into
a form which complies fully with the international obligations undertaken through
ratification of the Arrest Convention. Further, it creates difficulties in implementing the
distinction between provisional measures and merits jurisdict ion in the European
regimes.28
15.41 To allow ratification of the Arrest Convention, the Administration of Justice
Act 1956 consolidated and amended the internal jurisdictional rules of the Admiralty
Court. The list of Admiralty proceedings which appeared in that statute and now forms
part of the Supreme Court Act 1981 largely coincides with those "maritime claims" of
the Arrest Convention in relation to which a ship may be arrested. But the domestic
framework created to reflect the international structure mentions arrest only in the
application of the principle of one arrest, one claim and, in the context of Crown ships.
It creates jurisdictional rules for actions in rem and actions in personam modelled on
the arrest rules of the Convention. And, because arrest is available once an action in
rem will lie, the provision for the enforcement of a claim by an action in rem makes it
an arre stable claim.
15.42 If the Arrest Convention 1952 is given positive effect as such b y the
European regimes would be possible in cases within them by virtue of Article 5 of the
Arrest Convention to arrest a ship in England without having any intention of litigating
there. Secondly, it would mean that a ship may be arrested in circumstances other than
those specified in the Supreme Court Act 1981 and in particular the link between the
defendant and the ship at the date of issue of the in rem claim form becomes irrelevant.
The sole requirement in regard to the ship in respect of which the claim arose would be
that, at the time when the claim arose, the person liable on the claim was owner or
charterer of the ship or in regard to any other ship such owner or charterer was the
owner.
15.43 Thirdly, the prohibition of arrest of a further ship in any contracting State
once there has been an arrest of the giving of security in such a state and good cause not
shown (Article 3(3)) would apply. This would supersede the mandatory proh ibition of
such arrest or further service of a claim form in English proceedings. 29
15.44 The separation of arrest as a provisional measure and jurisdiction on the
merits now cause little difficulty, for English law has moved to a position where at least
this can be achieved. By English law for a ship to be arrested an in rem claim form must
be issued and therefore substantive proceedings must be instituted even if only security
is sought. But a claimant issuing an in rem claim form may now do so simply to obtain
security and by virtue of the Civil Jurisdiction and Judgments Act, section 26,
proceedings may be stayed and the ship retained under arrest. Provided a claimant may
obtain a stay, the division of security and substance may be attained —although only
through divorce of the initial union. So, while initial separation has still not been
attained, the method of suit is not now being allowed to create an artificially mandatory
link between security and merits jurisdiction. Further, the fact t hat both substance and
provisional measure jurisdiction depend on the in rem claim form does not mean that, if
used for security, the "proceedings" are within the prohibition on multiple proceedings
within the European regimes—that depends on the purpose o f the action. 30 So the
consequence of reliance on the Arrest Convention would simply mean that there is no
need to go through the motions of a substantive claim.
15.45 The divergence between the Arrest Convention 1952 and the Supreme Court
Act 1981 in respect of ships which may be arrested is a more fundamental matter to the
scope of arrest in English law—although it has to be said that the difference largely
disappears in the Arrest Convention 1999 in wh ich the link between the ship and the
person liable is required both at the date of the claim arising and at the arrest. Even if it
be accepted that the Arrest Convention 1952 does not become part of English law by
virtue of the European regimes, this still leaves the argument that positive force is given
to the Arrest Convention by its priority. It would seem difficult to argue that the
requirement under the Supreme Court Act 1981 of the link at the date of issue of the
claim form is procedural only and, t herefore, even under the regimes a matter for
English law. It would seem to follow that under the regimes jurisdiction in an action in
rem may only be established, through arrest according to the Arrest Convention 1952. 31
15.46 A ship once arrested will remain arrested until release or judicial sale —
usually after an order for appraisement and sale. 32 However, any "security" provided by
arrest is simply the availability of an asset for satisfaction of a judgment. Any
enforceability against third parties ste ms not from the arrest but from the lien either
enforced or created by the action in rem (see Part III). Arrest as “Security” Bankruptcy
or company liquidation
15.47 Arrest is a mode of establishing security for a claim and its role in the
context of a bankruptcy or liquidation clearly raises potential conflicts with the rules
relating to secured and unsecured claimants in that context. The permanent "security"
aspect of maritime process in which arrest plays a part is discussed in connection with
the "lien" which a claim enforceable by an action in rem attracts.33 Arrest in English
law, when used, is simply an early step ensuring physical retention of an asset in that
process. In relation to arrest as such the only relevant issue is the extent to which an
arrest may be void or stayed as an interference within the bankruptcy or liquidation
framework. Bankruptcy
15.48 So long as the claim is "secured" prior to the making of a bankruptcy order,
an arrest made in pursuance of that claim after such an order will not be affected.
Subject to the power of a court to stay "any action, execution or legal process" when
bankruptcy proceedings are pending or after an individual is adjudged bankrupt, the
benefits of any "execution" against a debtor’s goods issued prior to and not completed
before the commencement of the bankruptcy cannot be retained as against the trustee of
the bankrupt’s estate. 34 There is doubt whether arrest amounts to an "execution" in this
sense.35 Liquidation of companies
15.49 A court controls proceedings against a company commenced after winding
36
up. An arrest after such time may be stayed or declared void but if it is pursuant to a
claim which has become "secured" prior to that time it is unlikely to be affected. 37
Counter Security?
15.50 There is no requirement of or power to order counter security or any cross
undertaking in damages (as exists in relation to a freezing injunction), underlining the
force of the remedy. 38 As there is an entitlement to arrest on compliance with procedure
requirements there is no room for any discretion to impose a condition.
15.51 However, there is a discretion to order such security on stay of proceedings
for arbitration or hearing by a foreign court, 39 and in considering whether rear rest or
multiple arrest should be permitted. 40 Further, the lack of any available undertaking may
be a factor in considering reduction of costs in any successful claim (as e.g. if bunkers
purchased by the Admiralty Marshal, the cost of which the claimants were liable, were
for the defendant’s benefit). 41 Property Liable to Arrest
15.52 Subject to the statutory "sister ship" provision in the Supreme Court Act
1981, the only property liable to arrest is the ship, cargo or freight which is the focus of
theaction in rem.42 and to which the maritime or statutory lien created or enforced by the
action in rem attaches. As the entire interest and enforcement process is focused on the
"property" that may change in value and even in nature during that process ( see Chapters
10, 18 and 19). The ship includes all its attached parts and removal of any of the parts
for repair or safekeeping will not result in exclusion from in rem and arrest liability. 43
Parts of the ship may be damaged or enhanced, but it is the "ship" as it exists at the
particular point of process that is then relevant and is at the date of judicial sale, the
foundation of any fund.
15.53 A difficulty is created by the view that all property on board belonging to the
shipowner (in particular bunkers) is liable to in rem creditors even though it is not "part
of a ship".44 Presumably such property may be arrested, the fundamental problem being
the extension of the lien which underlies the arrest and action in rem (see Chapter 18).
That extension remains an anomaly.
15.54 The effect of arresting a ship will be to detain the cargo and that of arresting
cargo to detain the ship until discharge of cargo. 45 The cargo may be discharged on
application of the persons interested in the cargo or ship not under arrest. 46 Where the
persons interested are unwilling to undertake to pay the Marshal’s fees and expenses
they may be made parties to the claim and seek an order for discharge and storage and
directions as to the fees and exp enses.47 Cargo may be arrested in support of a claim
against freight, and, it has been held, no costs will be awarded even if no freight is due
provided that it is released on statement that none is due. 48
15.55 The Supreme Court Act 1981 specifically provides in section 21(8) that only
one ship may be arrested for each claim. But first it should be stressed that where a
claim is for moneys due, for example, monthly under a charterparty, each failure to pay
may be the foundation for a claim. 49 Secondly, the prohibition must be read together
with section 21(4) conferring the power to bring an action in rem in relation to sister
ships. If a ship against which such an action cannot be brought is arrested that of itsel f
does not prohibit arrest of a ship against which an action could be brought. 50 Thirdly, by
the use of terms applicable to English law and its unqualified language the provision
refers only to Admiralty proceedings in England. It is not to be seen as impl ementing the
more flexible but wide prohibition on rearrest in the Arrest Convention Article 3(3). 51
Arrest Warrant and in Rem Claim
15.56 Subject to any Convention relating to the arrest of state owned ships 52 and
save where the beneficial interest has changed through judicial sale since the issue of
the claim form on an application complying with the CPR by a claimant or a judgment
creditor in a claim in rem the court "will issue" an arrest warrant. 53 An application for
arrest must be filed: (i) in an Admiralty Registry containing an undertaking to pay the
relevant fees and expenses of the Marshal; and (ii) accompanied by a declaration
(verified by a statement of truth) as to the nature of the claim, the property to be
arrested, the amount of any security sought (where appropriate), the in personam link
with the person liable on the claim and, in the case of an oil pollution claim the basis of
jurisdiction.54 On compliance, an arrest warrant will be issued by the Adm iralty and
Commercial Registry.
15.57 The warrant may be served on the ship or property at any time whether or
not the claim form has been served. Service may only be effected by the Admiralty
Marshal or his substitute. Although, therefore, outside the Brussels and Lugano
Conventions service of a claim form creates jurisdiction, arrest through service of the
warrant may nevertheless arguably also create jurisdiction where there has been no such
service. Otherwise an arrest warrant may be served where there is no jurisdiction in
rem—which in English law is the foundation for the arrest.
15.58 The ability to acknowledge service of a claim form after issue but before
service, and the increase in methods of service of an in rem claim form other than on the
property, creates potential problems as regards the naming of a number of ships in a
claim form or a number of claim forms naming different ships. The ability to
acknowledge service of a claim form after issue could not, it would seem, dictate the
choice of a claimant as to the ship in relation to which proceedings are taken. There is
no provision dictating practice but once the acknowledgment is made there may be a
duty on the claimant to amend the claim form to reflect the choice.
15.59 The claim is focused by a ship being served or arrested. If a ship is arrested
whether or not there has been service, by whatever method, no other ship may be
arrested. However, the prohibition on further service operates only on service on a ship
and not any alternative permitted method. It is arguable therefore that where the claim
form contains more than one ship, in rem jurisdiction requires at least arrest or
(possibly) service on a ship.
Where service is by a method other than on the ship it should not be possible for a
defendant to remove the claimant’s choice of ship through selective acknowledgment of
service. In 1994 it was held by the Court of Appeal in Singapore that a defendant cannot
remove the option of the plaintiff who has issued a number of writs or named a number
of ships in one writ as to which ship to arrest by appearance. 55 In the Singapore case the
action had been commenced through service on the defendant’s s olicitor who had
entered an appearance. The court held that the power to commence an action in rem
through endorsement on the writ by the defendant’s solicitor simply had the effect under
the applicable rule of court of dispensing with service on the prope rty—under the rules
it did not deem service to have been made on the property. Entry of appearance then had
the effect of creating jurisdiction in personam but could not remove the plaintiff’s
statutory option of arresting the particul ar ship concerned in the claim or a sister ship.
Such reasoning is a neat and practical way of resolving any anomaly arising from
founding in rem jurisdiction on service of a writ or claim form on a person when the
whole purpose of the action in rem is to focus on property.
15.60 However, if adopted in England, the consequence is that acknowledgment of
service without challenge to jurisdiction of a claim form served otherwise than on the
property does not found in rem jurisdiction—that occurs only on arrest of one ship. It
therefore moves the founding of jurisdiction from the service to the arrest, an act not
hitherto one of jurisdiction unless within the one of the European regimes. Alternatively
practice may dictate a deletion of all ships save that selected as the ship in relation to
which the claim is made prior to service of the form by whatever method —but there is
no relevant provision in statute or in the rules.
15.61 A plaintiff may proceed in an action in rem without arrest or with the
"security" of an arrested ship, with bail lodged or payment into court in lieu or with a
guarantee—usually provided by a Protection and Indemnity Club or bank. Where there
is a guarantee there is no more security for the claimant than his right to the guarantee,
although no doubt it is the availability of the action in rem that brings forth the guarantee
in the first place. And the ability to arrest will be affected by the acceptance of a
guarantee or undertaking strictly only by any contract to which the claimant has become
a party. However, an arrest after provision of guarantee would no doubt be declared an
abuse of process. 56 Stage in Proceedings When Arrest Available
15.62 Arrest is "interim" or "provisional" in the sense it is available immediately
on issue of an in rem claim form 57 and, it is established, may take place at any time up
to judgment on liability in rem.58 Where there is a stay of an in rem claim any property
under arrest will remain so unless the court otherwise orders. 59 After judgment or an
arbitration award?
15.63 It has been held in English law that it is not available after judgment on
liability and that it cannot be used as a method of execution of a jud gment of an English
court.60 However, in 1984 in the Singapore High Court it was held that it made little
sense for the security provided by arrest to be terminated by a judgment in favour of the
claim. While the cause of action and judgment were merged th at was no reason for the
loss of the right to enforce the claim through security. This seems incontestable in logic
and commonsense.
15.64 Further, in 1982 in The Despina GK 61 Sheen J. held that an action in rem
was available to enforce a foreign judgment in rem in respect of a ship still owned by
the creditor at the time of arrest. No distinction was drawn in principle between English
and foreign judgments. 62 With the introduction of the principle that a foreign judgment
normally creates an issue estoppel 63 and the increasing direct enforceability of foreign
judgments through registration, the availability of arrest to execute one but not the other
would, with respect, seem to require some explanation.
15.65 Thirdly, it was held in 1983 by Sheen J. in the Saint Anna that an action in
rem—and therefore arrest—is available indirectly to enforce an arbitration award
provided that a claim on the contract containing the arbitration clause or the original
cause of action is enforceable in rem.64 However, in 1999 Aikens J. declined to follow
the Saint Anna holding that an action to enforce an arbitration award under a
charterparty was not sufficiently directly "in relation to the use or hire of a ship" so as
to bring the claim within the Supreme Court Act 1981. It is argued in Chapter 2 that this
approach removes the arbitration from its purpose. Its consequence is to remove from
every claim which is subject to an arbitration agreement, the lien which would
otherwise attach on the issue of an in rem claim form. The logic and desirability of this
must be open to question. In the case of a claim attracting a maritime lien the approach
of looking solely to the award as the foundation of the claim will mean the termination
or nullifying of any lien by an arbitration agreement. 65
15.66 An action in rem would not lie to enforce a judgment in personam. Subject
to any prohibition because of issue estoppel following the recognition that the defendant
in the two types of action may be identical, 66 a claim in rem will continue to be
available. Even if the action in rem will no longer lie, the inability to use the in rem
process stems from the claimant’s choice not to use it concurrently from the start. In the
case of arbitration there is no such choice.
15.67 Even if an action in rem would not lie to enforce an arbitration award or
subsequent to an action in personam, this should not affect the availability of arrest to
enforce a judgment in an in rem claim. Despite The Alletta the availability is accepted
in the CPR through provision for entitlement of a judgment creditor in rem to have the
property proceeded against arrested. 67 If, therefore, the claimant initially brought a
claim in rem, and those proceedings were stayed for a n arbitration could they be
revived and the award linked to them as a judgment? If, however, the claimant refrains
from any action because of the arbitration agreement, on the approach of the Bumbesti
he surrenders his ability to enforce the claim by an ac tion in rem. It is all very
convoluted—and surely the course to follow is to that, just as the lien and therefore the
right of arrest is now recognised as continuing after judgment, so an arbitration award
on a claim attracting a lien can be enforced by in rem proceedings. Restrictions on
Availability of Arrest
15.68 Arrest is an inherent part of the action in rem and it is, therefore, generally
bounded by the ability to bring such an action. Restrictions on the availability of an
action in rem are discussed in Chapter 12. It is necessary here simply to refer first to
restrictions specifically imposed on the power of arrest, and to problems of retaining
property under arrest or enforcing alternative security when an English court declines
jurisdiction in rem. (a) Restrictions specifically imposed Caution68 against arrest
15.69 A person (either a defendant in a liability action or a claimant in a limitation
claim where a limitation fund has been set up under the Convention on Limitation of
Liability for Maritime Claims 1976), who desires to prevent the arrest of any property
may file in the Admiralty and Commercial Registrar a notice (Form ADM 7) requiring a
caution against arrest. In a limitation claim there must be a statement that a limitation
fund has been set up and undertaking to acknowledge service of the claim form in any
claim against the property. In claims apart from limitation, there must be an undertaking
to file an acknowledgment of service and to give sufficient se curity to satisfy the claim
with interest and costs. On the filing of the notice a caution is entered in the Register. 69
The entry of the caution is not submission to the jurisdiction. 70
15.70 The caution is valid for 12 months and may be renewed for a similar
period.71 It does not prevent arrest but the Court may order the discharge of arrest and
compensation. 72 It is the duty of the person seeking the warrant to request a search for
any caveat and the claim form must be served on the person named in it as authorised to
accept service.73
15.71 The caveat against arrest was rarely used in recent times but it reappeared
first because of the coming into operation of the Convention on the Limitation of
Maritime Claims 1976 and the right in almost all cases of the person claiming limitation
to prevent arrest of property once a limitation fund is constituted. An amendment to the
rules in 1990 adapted the caveat procedure to the limitation action by the person
claiming limitation.
15.72 Secondly, it was used in 1994 in The Anna H 74 by shipowners in a case
within the Brussels Convention in an attempt to prevent cargo owners obtaining
jurisdiction in an English court by arrest. It is established that arrest under the Arrest
Convention is a jurisdiction base under the Brussels Convention, but as the Arrest
Convention is presently worded actual arrest is needed (see Chapter 5 and supra).75
The shipowners argued that arrest under the Arrest Convention had to be to ob tain
security, and that because of the entry of a caution against arrest and the undertaking to
give bail there was no valid arrest under the Convention. The Court of Appeal held that
arrest under the Arrest Convention was not so restricted. Even though th ere was security
provided, arrest for the purpose of establishing jurisdiction was valid. So it may be that,
if that view is maintained, 76 apart from limitation actions, the caution will again become
rarely used. Rearrest and multiple arrests
(a) Rearrest of the same ship
15.73 If a ship has been arrested and released there is no reason why it should not
be rearrested. Where the release is consequent on the provision of security the general
rule is to permit rearrest for that claim only in circumst ances of oppression or
unfairness. 77 On that criterion it may not be enough that the security initially taken
proves insufficient but that remains a powerful factor. 78
(b) Multiple arrests
15.74 The Arrest Convention prohibits more than one arrest or bai l or other
security in respect of the same maritime claim by the same claimant in any one or more
of the contracting States unless the claimant shows "good cause". 79 This is reflected in
English judicial doctrine insofar as where there has been a foreign arrest, no further
English arrest will be allowed unless there is a reason affecting the security. 80 It may
well be that, given the relevant approach to rearrest, oppression would have to be
shown before it was permitted.
15.75 So far as arrests in England are concerned, the Supreme Court Act 1981,
section 2 1(8) enacts a mandatory prohibition. Where a ship has been served with a
claim form or arrested to enforce that claim no other ship may be served with such a
form or arrested in that or any other action in rem. That provision, it has been held
(rightly it would seem on its wording) to refer only to service or arrest in England. 81
Government ships and other property
Foreign governments
15.76 The restrictions on jurisdiction over foreign sovereigns and their property
are discussed in Chapter 12. It follows from the essential linking of arrest with action in
rem that where no such action will lie no property may be arrested. Further, it is
specifically provided in the State Immunity Act 1978 that the property of a state not in
use or intended for use for commercial purposes cannot be arrested in an action in
rem.82 It is worth noting that a state may consent to the use of such process but that, as in
English law arrest can only lie as a part of an action in rem, submission to proceedings
in rem is required. Conversely, a provision for submission to the jurisdiction alone is
not a sufficient basis for arrest to be allowed when consent is needed. 83
Crown ships and other property
15.77 No action in rem lies against the Crown. Save for action in accordance with
the Salvage Convention 1989, the Crown Proceedings Act 1947 84 and the Supreme
Court Act 1981 85 specifically provide that nothing in those acts authorises the arrest of
any of Her Majesty’s ships or any property belonging to the Crown.
Foreign ships or other property
15.78 As is said in Chapter 2, there is no limitation on Admiralty jurisdiction
based simply on the foreign character of ships or other property. It follows from the
connection between arrest and action in rem that subject to any specific restriction 86 any
ship against which an action in rem has been instituted may be arrested. It is provided
by the CPR Part 61 that, where by any Convention or treaty the United Kingdom has
undertaken to minimise the possibility of arrest of ships of another state, no application
may be made for the arrest of a ship owned by that state until notice has been sent to the
appropriate consular officer. 87 Abuse of process
15.79 A court may refuse to sustain an arrest if the arrester has abused the process
of the court. Undue delay in prosecuting an action or failure to make "full and frank
disclosure" in any application for a discretionary remedy 88 could amount to such
abuse.89
(b) Consequences of lack of jurisdiction on merits
15.80 Despite the entitlement to a warrant of arrest after the issue of an in rem
claim form, the primary basis of the power to arrest is the establishment of jurisdiction
on the merits in an action in rem. That jurisdiction is established through service of the
claim form, although it is suggested earlier in the chapter that it may arguably be
established through service of the arrest warrant. It is clear that whatever the
commencement that subject to statutory provision the validity depends on the existence
of "in rem" jurisdiction. Assertion of jurisdiction “in rem”
The issue of an in rem claim form
15.81 An in rem claim form will be issued by an official of the Admiralty and
Commercial Registry. As, once the writ is issued, save in cases of chang e of beneficial
ownership by judicial sale (see supra), a party is entitled to arrest on compliance with
procedural requirements, judicial control over prior to the arrest may only be
effectively exercised on the challenge to the claim form. 90 Such a challenge may be
mounted as an emergency measure, but a court may be reluctant to consider the
complexities of Admiralty jurisdiction in that context. In consequence, the threat of
arrest is a powerful (and initially minimally controlled) weapon wh ich may bring forth
at least a guarantee, the legal need to give which may be debatable.
Ground of challenge to issue of a claim form
15.82 The jurisdiction framework for actions in rem is examined in Chapter 10 and
restrictions on jurisdiction considered in Chapter 12. The setting aside of a claim form
removes the basis for the arrest in the first place 91 and any power to retain property
under arrest must be founded specifically on that power despite the lack of an existing
in rem claim form. Such power could go either to retention under arrest or the provision
of alternative security.
Staying or dismissal of proceedings
15.83 The staying or dismissal or proceedings without dealing with the merits does
not, as it were, invalidate the issue of the claim form but it does (at least temporarily)
end or suspend the proceedings. The proceedings initiated by the issue of the claim form
have ended. Without statutory amendment, power to retain property arrested on the basis
of the writ or claim form had to be sought in a power attached to the stay or dismissal
(retention under arrest or provision of alternative security), a power not to release
property arrested, or in minimizing the effect of the stay. Problem areas —arbitration and
foreign jurisdiction
15.84 Problems arising from the necessary connection between arrest and issue of
the writ in rem arose principally in relating to the staying of proceedings by reason of
arbitration agreements, foreign forum agreements, 92 or the application of forum non
conveniens.
15.85 Of these the most difficult in terms of retention under arrest of property
arrested prior to stay was the arbitration agreement. In respect of litiga tion in a foreign
forum the stay of the English proceedings is discretionary and may be made conditional
on continued provision of security. This power is more doubtful in the case of
arbitration where the stay is mandatory and there is no statutory power of arrest for
arbitration.
15.86 Judicial ingenuity found a method of continuing the security first, through
attaching the condition to the release of the property rather than the stay of proceedings 93
and, secondly, and more radically, by restricting the effect of the stay to the substantive
proceedings. 94 So, it was held, the mandatory stay did not remove the power to retain
the property under arrest for the court’s jurisdiction was not necessarily ended.
However, retention required establishing that the defendant was unlikely to meet any
award made for it was in that context a court was likely to come back into the picture. 95
There was therefore for the plaintiff a hurdle not present in respect of arrest as a part of
the action in rem. There was (and is) in that context no requirement to show a likely
defection in meeting a judgment. Many but not all the difficulties and the differences
were removed on the coming into force in 1984 of section 26 of the Civil Jurisdiction
and Judgments Act 1982.
The Civil Jurisdiction and Judgments Act 1982, section 26
15.87 The provision reads:
"26—(1) Where in England and Wales or Northern Ireland a court stays or
dismisses Admiralty proceedings on the ground that the dispute in question should be
submitted to arbitration or to the determination of the courts of another part of the United
Kingdom or of an overseas country, the court may, if in those proceedings property has
been arrested or bail or other security has been given to prevent or obtain rele ase from
arrest—
(a) order that the property arrested be retained as security for the satisfaction of
any award or judgment which—
(i) is given in respect of the dispute in the arbitration or legal proceedings in
favour of which those proceedings are sta yed or dismissed; and
(ii) is enforceable in England and Wales or, as the case may be, in Northern
Ireland; or
(b) order that the stay or dismissal of those proceedings be conditional on the
provision of equivalent security for the satisfaction of any such award or judgment.
(2) Where a court makes an order under subsection (1), it may attach such
conditions to the order as it thinks fit, in particular conditions with respect to the
institution or prosecution of the relevant arbitration or legal proceedings.
(3) Subject to any provision made by rules of court and to any necessary
modifications, the same law and practice shall apply in relation to property retained in
pursuance of an order made by a court under subsection (1) as would apply if it were
held for the purposes of proceedings in that court." 96
15.88 In part this provision met criticism that the linking of arrest to proceedings
on the merits in England was contrary to the A rrest Convention 1952. Power is
conferred to retain or order alternative security on dismissal or stay or proceedings
because of submission to arbitration or a non -English court. However, it is to be
stressed that the power is dependent on (i) the issue of a writ in rem in order to bring
"Admiralty proceedings" and (ii) the arrest of property or giving of bail or other
security. As a consequence, a party to an arbitration or foreign forum agreement must act
contrary to that agreement through the issue of an in rem claim form in an English court
and in all cases property must have been arrested or bail or other security been given.
15.89 The provision removes the need to justify retention in terms of conditional
release or the limits of the stay. However, i t does not confer a power directly to arrest
or obtain security for arbitral or foreign proceedings, 97 or to order the provision of
security if none has been given in the Admiralty proceedings prior to the stay or
dismissal. 98
15.90 The statutory power does remove the distinction between maintaining
property under arrest and initially arresting it, which was seen as necessary when the
power to maintain arrest was linked to the judicial stay of proceedings. That distinction
applied particularly (and perhaps only) to arbitration proceedings and the lack of
availability of arrest as such for those proceedings. As property could not be arrested in
support of arbitration, on stay of court proceedings continuing arrest had to be justified
by the risk of the award not being met and the need to return to the court.
15.91 In 1992 in "The Bazias 3 and 4" (vessels used as Channel ferries) the Court
of Appeal rejected an argument that the statutory discretion under section 26 should be
exercised to release property in any way other than applicable generally. So there
would be no release unless an adequate alternative security was given —inconvenience
to passengers of the shipping line and difficulty in raising the security were not
sufficient reason for departing from established practice. 99 So the hurdle for the plaintiff
seeking to continue arrest when proceedings are stayed of establishing that any award
may not be met has been removed because of the express statutory power —but only
according to established practice.
15.92 There remains room for the principles developed prior to the statutory
power where there has been no arrest or security given. In The Tuyuti it was sought to
set aside the warrant prior to service. Because of the restr icted wording section 26
could not then apply, and a like case arising after the provision came into operation
would necessarily attract identical principles.
THE SCOPE OF SECTION 26
15.93 The provision is plainly directed at actions which are to be heard. If there is
jurisdiction in rem to enforce a foreign judgment, it may be difficult to see that as falling
within the basis of retention—the staying of proceedings on the ground that the dispute
"should be submitted" elsewhere. On the other hand it may be said that the enforcement
of the judgment has become the dispute —and if that is to be decided in the foreign court
there is room for section 26 to operate. 100
A CLAIMANT’S RIGHT TO STAY
15.94 For property to be arrested to support arbitration the claimant must issue an
in rem claim form, thereby breaching the arbitration agreement. It would then be
expected that it would be the defendant who seeks to stay for arbitration. However, as
now seems accepted, the arbitration agreement is not normally to be construed as
excluding the power to arrest, and the issue of a claim form is proper despite the sole
purpose being to obtain security. On that basis there should be no bar once security is
obtained to the claimant seeking a stay of the action. If it is not so, the statutory
provision leaves a claimant with the option of agreed arbitration without security or
litigation with security, the arbitration agreement operating only at the option of the
defendant.101
CROSS UNDERTAKING FOR DAMAGES
15.95 By virtue of section 26(2) a court may, contrary to established practice,
impose a cross undertaking in damages in case the claim should fail. In the Bazias case
the Court of Appeal refused so to do —the case was not one in which such far reaching
change could be introduced. However, some two months later in The Havhelt102 Saville
J. felt no such hesitation at least until evidence of the applicable foreign law was
adduced—ordering a vessel retained but security lodged to cover immediate losses
likely to be sustained. It would seem that tradition in this regard should not be allowed
to continue a somewhat one sided practice —particularly in the light of the opposite and
regular imposition of a cross undertaking on a person obtaining a freezing injunction.
(c) Restraining foreign arrest?
15.96 As discussed in Chapters 12 and 25 an English court may restrain a party
with sufficient connection with England from participating in foreign proceedings by an
"anti suit injunction" when the ends of justice require it —if such participation is
"vexatious and oppressive". 103 Such power extends to arrest. In The Lisboa104 the Court of
Appeal refused to restrain cargo owners from arrest proceedings in Italy despite a
London jurisdiction clause in the bill of lading, and emphasized that the only purpose of
the arrest was to provide security for the English proceedings. Given the acceptance in
English law of principle of arrest in one state in respect of proceedings in another, an
English court is unlikely to restrain a party from foreign arrest proceedings taken solely
in respect of English proceedings. 105 It follows that restraint of foreign arrest for foreign
proceedings would be highly unlikely, unless the party was also to be restrained as
regards the proceedings. Arrest Procedure The warrant of arrest 106
15.97 An application for arrest must be supported by a declaration verified by a
statement of truth. In the application the claimant must undertake to pay the fees and
expenses of the Marshal in respect of arresting and releasing the property, the care and
custody of it while under arrest. 107 It must contain particulars of the nature of the claim
and the property to be arrested and the amount of any security sought. 108 If the action is
against a ship under section 21(4) of the Supreme Court Act 1981 (i.e. requiring
liability in personam of specified persons (e.g. owner or charterer) connected with the
ship) the declaration must state the name of the person liable in personam, and the
relevant connection with the ship in connection with which the claim arose and against
which the action is brought. 109 If the action is one in relation to which notice to a consul
may be required it must be stated that the notice has been sent or served. 110 If the claim
is in respect of a liability for oil pollution under the Merchant Shipping Act 1 995,
section 153 the facts relied on for establishing jurisdiction must be stated. 111
15.98 The applicant must request a search in the Register for any caution against
arrest and file the application and declaration in the Registry. On being satisfied that the
declaration complies with the procedural requirements, that the beneficial interest in the
property has not changed since the issue of the claim form as a result of judicial sale,
and that there are no restrictions based on Conventions or Orders is Co uncil, the party
seeking the warrant is entitled to its issue. 112 The arrest is effected by service of the
warrant by the Marshal or his substitute on the ship or cargo against which it was issued
or, where that is not practicable, either service of the no tice of issue of the warrant or
notice to those in charge of the property. 113 Where freight is to be arrested it may be
served on the cargo in respect of which the freight is payable or the ship in which the
cargo was carried.114
The arrest procedure was helpfully summarised by Sheen J. in 1992 in The Johnny
115
Two :
"Upon issue of the warrant the Admiralty Marshal telephones the relevant officer
of HM Customs and Excise and instructs him to arrest the ship. He tells the Customs
Officer his requirements for ensuring the security of the arrest. That is followed up by
sending a ‘Note of Action’ by fax confirming his instructions to arrest the ship and
giving the folio number of the action, the name of the plaintiff and the name of t he
plaintiff’s solicitors. An officer of HM then arrests the ship by attaching the Note of
Action to the ship. He then carries out the Marshal’s instructions for keeping the ship
safely under arrest. This can be carried out within a very short space of tim e.
The warrant of arrest and the writ are then sent by post of HM Customs for
execution and service respectively. But frequently, of course, security will have been
provided and service of the writ accepted by solicitors so that the ship will have been
released before these documents are received by HM Customs.
If a ship is expected to arrive at a known port a warrant of arrest should be issued.
A ‘Note of Action’ instructing a Customs Officer to ‘Arrest on arrival’ will then be sent
to the relevant Customs Office. The ship will then be arrested on arrival by the ‘Note of
Action’ or by execution of the warrant if it has arrived at the Customs Office. In this way
a ship may be arrested on a day when the Court Offices are closed.
Arrests in London are effected by the personal attendance of the Marshall’s Officer
who executes the warrant.
If a caveat against arrest is entered after a warrant is issued but before the arrest is
effected, the plaintiff’s solicitors will be informed. They will be asked if they still wish
to arrest.
If a warrant of arrest is issued in respect of a ship when the port of arrival is not
known, the warrant can be left with the Marshal with instructions, endorsed on the
undertaking to pay his expenses, to arrest ‘at a port to be advised du ring normal working
hours’." Admiralty Marshal’s fees and expenses
Undertaking to pay
15.99 As indicated above, the claimant must undertake in the arrest application to
pay the fees and expenses of the Marshal. 116 Where there is more than one arrest the
question arises of the allocation of such liability.
Where there is more than one arrest
15.100 In 1980 in The Falcon117 The cargo owners had caused the ship to be
arrested even though she was already under arrest. The ship was sold and all resulting
funds applied to satisfying claims of mortgagees ranking prior to the cargo owners who
then objected to being charged with a half share of the Marshal’s fees and expenses. The
Marshal had followed his usual practice of c harging arresting parties equally. In
considering the question of liability for the Admiralty Marshal’s fees and expenses
generally, Sheen J. set out the practice as it should be and the reason for it:
"The facts of this case demonstrate beyond doubt that justice will not necessarily
be done by dividing equally between various plaintiffs the expense of maintaining the
arrest of a ship. It is equally clear to me that justice may not b e done by dividing those
expenses in proportion to the size of the claims, even if that could be done. I can see no
injustice in requiring a plaintiff who has arrested a ship to pay all the expenses of the
arrest and maintenance of the arrest until the time as that plaintiff releases his arrest. If a
second plaintiff arrests the ship, the expenses which the first plaintiff undertook to pay
are not thereby increased. Furthermore, if a second arrest is effecte d, the first arrester
can release his arrest and enter a caveat against release. If he takes that step then all the
expenses of maintaining the arrest thereafter will fall on the second arrester.
If the first arrester maintains his arrest but a second arre ster obtains an order for
appraisement and sale, the Marshal will charge all expenses of custody and sale of the
ship to the second arrester from the date when he lodges the commission for
appraisement and sale.
In my judgment, the Marshal should adopt thi s practice so that each litigant will
know the extent of his obligations." 118
15.101 It should be noted that the above ruling was made in the context of a
defensible arrest. If the caution procedure 119 would suffice, a second arrester may be
penalised in some way, although Sheen J.’s reasoning would apply equally to this type
of case. Arrester’s expenses
15.102 An arrester is entitled to be paid the expenses of arrest and of any fund
created by sale of the property arrested in priority to the payment of any claim. This
includes, for example, sums paid to the Admiralty Marshal in respect of the arrest, and
costs paid to repatriate the crew. 120 Sums due from the fund may be paid out prior to the
arrester obtaining judgment on the claim and, indeed, even though the claim is not
pursued because it becomes apparent that other claims will consume the fund.
15.103 It is not necessary for a first arrester to show that the arrest benefits the
successful claimant or a second arrester. As a solicitor owes a duty to a client to arrest
it is not to be expected that this will be delayed pending enquiry into possible other
claims—the claimant may decide not to pursue those claims. 121
15.104 In The Falcon Sheen J. held that recovery of expenses should not depend
on which plaintiff obtained the order for appraisement and sale. He continued:
"I can see no justification for the view that recovery of the expenses of maintaining
the arrest of a ship depends upon which pl aintiff has obtained the order for
appraisement and sale. In my judgment, the proceeds of sale of a ship which has been
sold by order of the Court should be used first to pay the Admiralty Marshal’s charges
and expenses; secondly, to reimburse the plaintif f or plaintiffs who has or have incurred
expense in preserving the property by arresting the ship and maintaining that arrest.
Those expenses will of course include the necessary costs of that plaintiff up to the
moment of that arrest. If there is only one action the plaintiff in that action must obtain
judgment before he can recover the expense of arrest. If there is more that one action
and if the ship is appraised and sold by an order made in a second or subsequent action,
the plaintiff in the first action should make application to the Court for reimbursement of
the expenses of preserving the property. The Court will so order unless he has acted in
bad faith."122 Marshal’s Powers during Arrest
15.105 Property under arrest may not be moved unless ordered by the court and
may be immobilised or prevented from sailing in the manner considered by the
Marshal.123 However upon arrest standard directions will be issued by the court to the
Marshal (a) to take measures to preserve the ship, (b) to move the ship up to five miles
within the port for safety or to comply with requirements of the Port Authority and (c) to
supply provisions to avoid hardship to the crew. 124 The arrest is administered by the
Marshal and any applications in respect of the property other than an order for sale
before judgment are considered by the Admiralty Registrar or as he may direct. The
Marshal does not insure property under arrest and it is the responsibility of those who
have interests in it to insure those interests. 125
15.106 Property under arrest is in the custody of the Admiralty Marshal 126 and any
interference by any person 127 with that custody will be in contempt of court. 128 Such
interference may vary from moving the ship (whe ther out of the jurisdiction or not) to
removal of a warrant of arrest: intention to interfere is irrelevant but its presence or
absence will be reflected in the penalty. 129 However, the prohibition extends only to
active control. Rights in the ship may be created during arrest. So a ship under arrest
may be sold or mortgaged, a claim form may be served on it, it may be arrested again 130
and a harbour authority may exercise a statutory right of detention that does no t interfere
with the custody of the Marshal. 131 There can be no private sale if there is an order for
sale. 132
15.107 Where either cargo is under arrest and the ship is not, or the ship is under
arrest and the cargo not, without being made a party to the action an application may be
made to the Marshal to take appropriate steps to discharge the cargo. Where the
Marshal considers the request reasonable and the applicant undertakes to pay fees and
expenses the Marshal will apply to the Court for an appropria te order. Where there is
inability or unwillingness to arrange for such undertaking the person interested may be
made a party to the action and apply to the Court for an order of discharge and
directions as to fees and expenses of the Marshal with regard t o the discharge and
storage of the cargo. 133 Third parties
15.108 Arrest may clearly affect the right of persons not concerned in the claim in
relation to which the arrest is made. As has been said, subject to the obligation not to
interfere with the Marshal’s custody, interests in the ship may be created after as before
the arrest. Rights existing at or before arrest
15.109 The claim which is the basis of the arrest may be such that it runs against a
ship even though the owner is not liable in personam. Secondly, a chartered ship or a
ship carrying cargo may be arrested where the charterers or cargo owners have no
connection with the claim. So there may be third parties with claims against the ship
which claims confer interests in the ship (such as mortgagees or charterers for breach of
the charterparty) or third parties directly affected by the arrest (such as cargo
owners).134 Save for a plea of lack of jurisdiction there is no way in which any such
interested parties can prevent an arrest. 135 Their remedies are, first, dependent on any
right against any other person because of the arrest (e.g. under a charterparty where a
chartered ship is removed from availability), secondly, the ability to issue an in rem
claim form on their own account and cause a warrant of arrest to be issued ( see above),
thirdly, lodge a caution against release, or, fourthly, the ability to be made a party to in
the action which is the root of the original arrest.
15.110 Each course of action has different consequences —the issue of a claim
form and a second arrest could lead to unnecessary costs, the reliance on a caution may
lead to a failure to obtain the security dependent on the issue of the claim form and
being made a party may result in a limited role in the proceedings. Caution against
release
15.111 A caution against release of property under arrest may be entered on
application by a person claiming to have an in rem right against the arrested property
whether or not the caution holder has issued an in rem claim form. Once a claim form is
issued by the caution holder the caution is unnecessary and will not prevent the
release.136 The availability of the caution procedure means that the caution holder is
entitled to have notice of any application in respect of property under arrest. So a
claimant may ensure that the security does not disappear without his knowledge without
being burdened by the costs of arrest. However, a claimant who is relying on a statutory
lien must issue a writ in rem to acquire status as a preferred creditor and to ensure the
enforceability of his right against purchasers of the ship. The caution of itself is not
relevant to either point, but entry may be worthwhile as a first step pending
investigation into the value of the asset arrested relative to the number of claims against
it and assessment of the chances of recovery of any value.
15.112 The caution remains in force even after a warrant of arrest is set aside and
therefore a subsequent withdrawal of the caution in exchange for an undertaking to pay
charges is an enforceable agreement. 137
Liability in damages of caution holder
15.113 Delay of release of property under arrest because of the caution may lead to
liability in damages for any loss suffered by reason of the delay by any person having an
interest in the property unless the entry and maintaining of that caution was for good
reason.138 This rule sits a little oddly in a framework a central feature of which is that
loss suffered from arrest will be compensated only if the sufferer can point to more than
the ultimate failure of the claim. A caution against release may take the place of a
second arrest. Yet in respect of a claim thought valid and in respect of which there is an
arrest the criteria for damages for wrongful arrest are stringent —requiring fraud or
gross negligence (see infra). Intervention in proceedings
15.114 In any proceedings brought against an owner or guarantor in respect of
liability for oil pollution under the Merchant Shipping Act 1995, Part VI the
International Oil Pollution Compensation Fund may intervene on notice served on the
owner, guarantor and the court. 139 In any action in rem any person "interested" in
property under arrest or proceeds of sale of such property by the Admiralty Court may
be made a party. 140 This is the appropriate procedure for the participation in
proceedings by a purchaser of a ship after the issue of a claim form. Such a person is
under no liability to satisfy a claim apart from that stemming from an interest in the ship
and it is therefore inappropriate to include that person in the form. 141
15.115 In addition, the court has inherent jurisdiction to allow a person who has no
interest in the property under arrest but who suffers from the arrest to intervene. So, in
The Mardina Merchant,142 a harbour authority was allowed to intervene so as to enabl e it
to apply for the moving of a ship under arrest. Specific provision is made in relation to
those interested in cargo which is not arrested when a ship is under arrest or a ship not
arrested when cargo is. 143 Expenses of discharge of cargo
15.116 The need to discharge the cargo of a ship arrested or where cargo is
arrested stems from the arrest and in contractual terms will normally be a breach of the
contract of carriage. An attempt to treat the cost of discharge where a ship was arrested
as analogous to the expenses of the Admiralty Marshal in the appraisement and sale of a
ship failed in 1981 in The Jogoo.144 Cargo owners had intervened in an action by
mortgagees after arrest of the ship, and Sheen J. made an order permitting discharge of
the cargo prior to judgment and for appraisement and sale. After sale, the cargo owners
claimed that their discharge expenses should be a first charge on the proceeds as they
should be treated as a contribution to the fund by increasing the price at which the shi p
could be sold. Sheen J. rejected the theory that any service to the ship after arrest meant
that those who benefited from it must contribute and held as a general principle that
cargo owners must bear the expenses of removal of cargo and claim against th e
shipowners.145 The same reasoning applies where the cargo is under arrest but the ship
is not. As a result, whether or not a person is made a party 146 such expenses are subject
to the same priority rules as a substantive carriage claim. “Wrongful” Arrest
15.117 Claimants are entitled to arrest a ship or other such property as is permitted
to obtain security for the claim. 147 It cannot be argued at the time of arrest that the arrest
is improper because there is a good defence to the action. 148 Conversely, it is clear that
if the arrest is in relation to a malicious claim which fails, or is of itself malicious,
damages may be awarded by analogy to malicious prosecution. Compensation may be
awarded for an arrest made in the face of the existence of a caution against arrest. 149
Apart from an arrest made despite the existence of a caution, for damages to be
awarded there must be either bad faith or gross negligence implying bad faith (" mala
fides" or "crassa negligentia"). These criteria apply to initial arrest 150 and continuing
arrest.151 In The Borag152 an arrest was at the institution of managers in breach of a
management contract. Damages were awarded following the normal contractual rules to
compensate the owners for loss reasonably foreseeable as flowing from the breach, i.e.
the arrest. Although in the case the courts referred to "wrongful arrest" the source of the
wrongful characteristic lay in the breach of an agency directly related to the ship’s
operation. The arrest was simply the act which created the breach and is to be
distinguished from damage or loss suffered simply through an arrest in support of a
claim which ultimately fails. Termination of Arrest—Release
15.118 Property arrested may be released only on (a) sale by the court, (b) order
of the court upon application by a party or (c) a request for release filed either by the
arresting party and all persons who have entered cautions. 153 or any party with the
consent of the arresting party and all such persons. 154 The entitlement of a claimant in
rem initially to arrest will be removed if a court decides that it has no " in rem"
jurisdiction. 155 The entitlement does not apply to maintaining an arrest on stay of
proceedings or to rearrest or multiple arrests. 156 In all such circumstances the
entitlement must be qualified by the further elements and there is a discretion if the
arrest is ended. Release would appear the appropriate remedy. 157
15.119 When it was thought that there was discretion in the court whether or not to
arrest, it was held that there was a power to release where the action to which the arrest
related was not being prosecuted at reasonable speed. 158 If, however, a court has no
initial discretion but to issue a warrant on procedural compliance the only justification
for termination apart from the specified grounds is abuse of process —and extreme delay
may well amount to that.
15.120 The usual practice is that apart from judicial sale 159 property will be
released only on the provision up to the value of the property arrested of sufficient
security to cover the amount of the claim, interest and costs on the basis of the plaintiff’s
reasonably arguable best case. 160 This general rule also applies to release under
statutory provisions because of a stay or dismissal of proceedings for arbitration or
litigation in a foreign forum. 161 Even if there is such security, conditions may be
attached 162 to the release, and in the case of release without provision of security
conditions would almost certainly be imposed. 163 Limitation of liability and release
from arrest The 1957 Convention and its implementation
15.121 The Merchant Shipping (Liability of Shipowners and Others) Act 1958
gave effect in English law to the International Convention Relating to the Limitation of
Liability of Owners of Sea Going Ships 1957. The Convention provided for the
institution of a limitation fund in respect of claims in relation to which liability could be
limited and recognition of that fund among the contracting States; and therefore provided
for the release of any security given once the fund was set up. In the words of Lord
Denning M.R.:
"The object is plain enough. If a ship is involved in a collision in circumstances in
which the owner is entitled to limit his liability, then he should only be compelled to
provide a limitation fund once and for all. If he makes it avai lable in one country to
meet all the limited claims, he should not be compelled to put up security for those
claims in another country; or, if he is compelled to do so, he should be able to get the
additional security released." 164
15.122 In The Wladyslaw Lokietek165 Brandon J. held that the conditions for
release imposed by section 5 of the 1958 Act in giving effect to the Convention
depended on (i)the discharging by a shipowner of some burden of proof that he could
limit liability—it was not enough to show that he had a reasonably arguable case; and
(ii) the lodging of security (by way of bail or guarantee) prior to the arrest of the ship.
15.123 In English law the Convention of 1957 has been superseded by the
Convention Relating to the Limitation of Liability for Maritime Claims 1976, given the
force of law by the Merchant Shipping Act 1979 and brought into force on 1 December
1986 and as from 1 January 1996 contained in the Merchant Shipping Act 1995. 166
Unlike the Act of 1958, the Acts of 1979 and 1995 enact the Convention provisions
directly into English law. 167 The Convention provision relating to release from arrest is
set out in Article 13(2):
"2. After a limitation fund has been constituted in accordance with Article 11, any
ship or other property, belonging to a person on behalf of whom the fund has been
constituted, which has been arrested or attached within the jurisdiction of a State Party
for a claim which may be raised against the fund, or any security given, may be relea sed
by order of the Court or other competent authority of such State. However, such release
shall always be ordered if the limitation fund has been constituted:
(a) at the port where the occurrence took place, or, if it took place out of port, at
the first port of call thereafter; or
injury; or
(c) at the port of discharge in respect of damage to cargo; or
(d) in the State where the arrest is made."
15.124 In 1990 in The Bowbelle168 Sheen J. held that under the 1976 Convention a
shipowner could only be compelled to constitute one limitation fund and that any claim
subject to limitation had to be against that fund. There was no prerequisite that the court
be satisfied that limitation could be pleaded. Once the fund was established at a place
specified in section 13(2) any ship arrested must be released. As a consequence of
comments by Sheen J. in this case as to the need for machinery to warn would -be
arresters of the existence of a fund the rules of court were amended to provide for a
caveat against arrest (see supra).169 4. Judicial Sale
15.125 Judicial or "forced sale" is the final blunt instrument ensuring that the
"security" for judgment obtained by a claimant through arrest is finally reflected in
funds. The value of the security is affected by the claims of other creditors and the order
of priority each claim may have in relation to the proceeds of sale. Such a sale confers
on a purchaser a title free from all charges and encumbrances and any person having a
claim to an interest must therefore assert that claim against the proceeds; and, inde ed,
must indicate the existence of a claim as soon as possible to ensure a say in the process
which leads to a sale. Judicial sale will be discussed in that context. 170
15.126 Here, it suffices to underline the essential connection between arrest and
judicial sale and, in particular, that a court may not order sale unless the property is
under arrest 171 and it will do so through an order for appraisement and sale by the
Admiralty Marshal. 172 In special circumstances the court may issue a warrant to arrest
and make an order for appraisement and sale at the same time. Any party (including the
defendant)173 may apply for an appraisement and sale 174 and the Marshal may apply for
an order of sale. Such orders may be made prior to judgment on liability where the
security of the applicant is reducing in value through the continuation of arrest 175—this
emphasising the force of the remedy of arrest and its consequences. 5. Security
Alternative to Arrest
15.127 Alternative security is normally of two kinds: (i) the caveat against release
from arrest, a security temporary in concept and not of itself providing the substantive
protection of arrest; and (ii) bail, payment into court or guar antee, any one of which is a
substitute for arrest and may be provided to prevent or obtain release from arrest. 176
The caveat against release is discussed earlier in the chapter. Security in Substitution
for Arrest Bail, payment into court, guarantee General
15.128 A claimant who has the right to arrest because of the nature of his claim has
strong bargaining power. In English law arrest is initially largely an administrative (as
distinct from a judicial) act, no undertaking in damages is required and dama ges for
wrongful arrest are not available in the absence of fraud or gross negligence. 177 It is not
surprising, therefore, that the threat of arrest is often sufficient to bring an offer of
alternative security for the claim. At least such security permits the ship to keep
trading178 or other assets than the ship to be deposited.
The security will take the form of bail or now more normally a contractual
guarantee usually by a bank or P & I Club or payment into court. 179 Today the most
common form is the contractual guarantee and the rules as to bail which were in the
former rules of court have disappeared. The references are now generally to "security"
as appears in the following contexts —(i) a requirement that in the declaration
accompanying an application for arrest the amount of any security sought must be stated,
(ii) where security is sought, authorising an application for the court to specify the
amount and form, (iii) on an application for a caution against arrest and (iv) a specific
power to reduce security provided or to rearrest for further security up to the value of
the property at the time of the original arrest. 180 There is, therefore, considerable
emphasis on the court’s control on the nature, amount and duration of the security.
Security in respect of foreign proceedings or arbitration
15.129 Security may be provided and can be taken to the extent to which an
English arrest may be maintained, i.e. in accordance with the provisions of the Civil
Jurisdiction and Judgments Act 1982 when proceedings are stayed and the dispute
remitted to arbitration or a foreign court. 181
Provisions of security and jurisdiction
15.130 As has been seen a consequence of EC Regulation 44/2001 and the
Brussels and Lugano Conventions is that jurisdiction on the merits can not be achieved
through service of a claim form but may require arrest or submission. This has brought
the jurisdictional nature of security to the fore. The two issues are whether the provision
of security first prevents arrest even though the purpose of the arrest is simply to obtain
jurisdiction and second constitutes submission to the jurisdiction.
15.131 The first issue is discussed in the context of the power to arrest (above)
and the second generally as relevant to jurisdiction in personam (Chapter 9). Here it is
worth while stressing the difference (discussed in Chapter 9) between giving of security
and merits jurisdiction. Bail
15.132 Bail is the substitution of personal for "asset" security, but is now used
relatively rarely. 182 In English law bail is given to the court through a bail bond in
which sureties (a) submit to the jurisdiction and (b) consent that if the defendant does
not pay "what may be a judged against them" in the action pending before the High Court
or is agreed by settlement, execution may issue against them for the sum due.
15.133 Bail takes the place of the ship 183 or other property and may be given
initially to prevent arrest of the ship or to obtain its release. 184 It is restricted in its
availability and its effect on any claim on the ship to the claim in respect of which it is
lodged185 and therefore represents the ship only in regard to that claimant. It is initially
for the claimant to agree to accept an undertaking to give bail as suff icient security and
eventually to agree to an acceptable amount. The party seeking security must not abuse
his undoubted position of strength and the demanding of excessive bail may lead to a
liability for costs. 186 It is for the court to be satisfied as to sufficiency and acceptability
of the surety.187
Bail and jurisdiction
15.134 It appears that by established practice bail could be given only after the
defendant had "appeared" in the action or, in accordance with current procedure,
acknowledged issue or service of the writ in rem.188 It was permitted to give bail while
reserving the right to challenge jurisdiction but the reservation had to be expressed
("bail under protest"). 189 The giving of bail without any qualification was held to be
submission to merits jurisdiction by Sheen J. in The Prinsengracht 190 and Clarke J. in
The Anna H.191 In both cases it was stressed that bail was an undertaking given to the
court. In neither case was bail given under protest. In The Anna H in the Court of
Appeal192 the matter was dealt with only by Hobhouse L.J., and then only to state that as it
was accepted that bail could be put up conditionally reserving the right to challenge
jurisdiction "there are problems about treating" the provision of bail of itself as
submission. It would seem, however, that whether or not bail is put up conditionally to
see bail as submission on the merits is to confuse a matter of interim relief with the
substantive issue.
15.135 Sheen J. was of the view that as bail could only be given following
appearance it followed that bail meant submission to the jurisdiction in personam.
Clarke J. held that having regard to the wording of notice of bail and the bail bond the
defendant and sureties submitted to jurisdiction. Sheen J. thought it would be "absurd"
to allow bail and also to allow the surety to rely on a plea of no juri sdiction. But with
respect it is difficult to see why this should be so —particularly as it is recognised as a
possibility by the process of "bail under protest". Such an approach seems to exemplify
the too ready linking in English law of the provisional me asure and jurisdiction on the
merits. The giving of bail should be precisely as stated in the bond —a security if
judgment is given. Nor does it seem that the notice of bail is any more than a notice
indicating that bail is provided, i.e. the security given. There is equally no reason why
the provision of a sum as security should mean the creation of any "merits" jurisdiction.
It is perhaps in practice in the end a matter of being aware of how to avoid that creation.
But, it is suggested with respect that the equation of bail with jurisdiction on the merits
is fundamentally wrong. 193 There is no reason why of itself it is anything more than the
arrest it prevents or ends.
Foreign bail in respect of English proceedings
15.136 Where a surety to an English bail bond is foreign it would seem necessary
that the court be satisfied that there are assets in England to back up the undertaking. 194As
a general principle, bail lodged in a foreign jurisdiction in respect of English
proceedings should be recognized to the extent that a foreign arrest is recognized. As
has been seen in the discussion on foreign arrest, where a foreign jurisdiction permits
such arrest an English court will probably not act in any way to order a party not to
continue "the" proceedings for interim relief. So foreign bail would be similarly
recognized. It would follow that an English court would not allow a further arrest (or
bail) in England. 195 Where a limitation fund is constituted in a State party to the 1976
Convention on Limitation of Liability any security lodged in England must be released
on the compliance with specified conditions. The matter is discussed in the context of
release from arrest. 196
Ship as an asset in claim in personam despite bail
15.137 A plaintiff in an action in rem may obtain a judgment in personam against a
defendant who has become subject to jurisdiction in personam (as, for example, by
submission) for the full amount of damages, interest, and costs. 197 Similarly, such a
judgment may be given in an action in personam commenced concurrently with an
action in rem. It follows that the lodging of bail, whether or not it be the full amount,
does not prevent the seizing of the ship in respect of which the bail was lodged in
execution of a judgment in personam (whether it be for damages, interest or costs). 198
Payment into court
15.138 Although there is no reference in the Civil Procedure Rules to payment into
court as a method of providing security there is no prohibition of it, and , subject to the
control by the court, it may be so used. Guarantee or undertaking
15.139 Today a claimant is more often than not satisfied with guarantee or a letter
of undertaking to pay such amount as may be ordered by a court from a bank, insurance
company or P&I Club and it is within the courts’ power to specify that this should be the
form of security. 199 Such a guarantee on behalf of owners, for example, may read:
"In consideration of your refraining from taking action resulting in the arrest of the
MV. . . or any other ship or asset in the same legal, beneficial or associated ownership
or management for the purpose of founding jurisdiction and/or obtaining security in
respect of the above mentioned claim and/or prosecuting legal or arbitration
proceedings in respect of such claim otherwise than before the Court referred to below
against the owners..., bareboat, charterers of the above named ship at the material time
concerning damage to cargo, we the undersigned P. & I. Club, hereby guarantee to pay to
your Solicitors on your behalf such sums as may be adjudged or found due to you by the
competent Court or Tribunal or as may be agreed between the parties in respect of the
said claim provided always that our liability hereunder sha ll not exceed the sum of...
plus interest and costs, providing always in the event that the shipowners can establish
before the competent Court their right to limit their liability pursuant to any applicable
convention or legislation, such lesser sum as ma y represent the vessel’s limit of
liability."200
To complement the undertaking there should be agreement on the governing law
and the forum—as regards both the undertaking and the claim, as for example:
"The owners of the above named ship agree that this undertaking and the above
mentioned claims shall be subject to English law and to the exclusive jurisdiction of the
English High Court."
The forum agreement is particularly necessary in a case within the scope of a
European regime. Apart from such an agreement, for jurisdiction on the merits to be
created it may be necessary to arrest or establish submission ( see Chapter 5).
15.140 Such arrangements are entirely contractual, no interest in the ship is crea ted
and, apart from any forum or governing law agreement, enforceability is primarily a
matter for the parties. The view taken in 1973 that the security is not in the court’s
control 201 would seem now overtaken by the control to be exercised over the form,
duration and amount of security. 202 It has long been accepted that a court can control the
amount of security requested or given under the guarantee. 203 Further, under the statutory
provisions enacting the Limitation Convention a court may order the release of
"security" (including a guarantee) given by a third party such as a P&I Club where a
limitation fund has been constituted. 204 An undertaking not honoured would lead to an
action for breach of contract seeking damages, declaration or injunction. 205 A further
common clause where the jurisdiction is conferred on the English High Court is to
undertake that within 14 days of a request to do so, to instruct solicitors to accept
"service at your option of in personam or in rem proceeding... and to file
acknowledgment of service thereof". Such a clause may have jurisdictional
consequences.
15.141 In The Oakwell206 it was held that the agreement to confer jurisdiction on
the English court coupled with that to accept service of a writ in rem made the sale of
the relevant ship prior to the issue of the writ irrelevant to the obligation. 207 The further
obligation to acknowledge service would create jurisdiction in personam and a
declaration was made that failure to accept service was a breach of the undertaking. 208It
is not entirely clear but it must follow that any claim would have to be in personam, as
an essential prerequisite for a claim in rem was lacking. 6. Arrest and Detention
under Legislative Powers
15.142 Arrest is essentially a remedy available as an inherent part of an action in
rem. But it should not be forgotten that ships may be detained by numerous public
authorities pursuant to legislative powers. So, for example, ships may be detained
pending compliance with safety requirements, collision regulations, payment of dues for
failure to carry required documents and by a receiver of wrecks. 209 Such powers are
excluded from the Arrest Convention.210
15.143 In some instances detention may be followed by sale but the rights and
power of each authority depends on the particular relevant legislation. An authority may
have a claim (e.g. enforcement of port dues) which would qualify as the basis for arrest
for a claim under the Supreme Court Act 1981. Where that claim and the power to
detain overlap, the authority must make it clear it is acting under its statutory powers if
it wishes to take advantage of any priority which the exercise of s uch powers would
give.211 It is not prevented from exercising the power by an earlier arrest by some other
party.212 7. Arrest and Execution of Judgment
15.144 Finally, arrest as part of an action in rem should be distinguished from
seizure as part of an execution of a judgment. The function of both types of seizure
overlap.213 However, the basis of "arrest" as independent of if not necessarily prior to
judgment of an action in rem, is security in an action in rem and the more general
seizure the satisfaction of a judgment. 214
1. For a comprehensive guide to the two texts and the travaux préparatories see
Berlingieri, Arrest of Ships—a Commentary on the 1952 Arrest Convention , 1992,
Lloyd’s of London Press.
2. Held by the English Court of Appeal that it was permitted by the Convention to
arrest after provision of security to establish merits jurisdiction ( The Anna H [1995] 1
Lloyd’s Rep. 11). See infra.
3. Article 8(1) and (2).
4. Article 8(3).
5. The list is almost identical to that set out in the Supreme Court Act 1981, s.20
(see Appendix 1). Cf. Chapter 2 for discussion of the content of the claims.
6. Article 3(1).
7. Article 3(4)—the most controversial Article. For judicial comment, see e.g. The
Span Terza [1982] 1 Lloyd’s Rep. 225; The Permina 108 [1978] 1 Lloyd’s Rep. 311.
Its scope and effect is much clearer in the revision, being linked to the enforcement of
the claim by judgment against the ship (see Art. 3(3)).
8. Article 5. Prior to the enactment of the Civil Jurisdiction and Judgments Act
1982 the United Kingdom was in breach of this provision —and it is arguable to some
extent will remain in breach (see text infra).
9. Article 7(1). For text of Convention, see Appendix 2.
10. See generally the Arrest Convention 1999, Institute of Maritime Law,
Southampton 2000.
12. The measures must relate to subject-matter within the Convention. There must
be a real connecting link between the measures sought and the territorial jurisdiction of
the Court (Van Uden Maritime BV v. Kommanditgesellschaft In Firma Deco -Line
[1999] I.L.Pr. 73 ECJ and see Chapter 14).
13. Ibid.
14. The Anna H [1995] 1 Lloyd’s Rep. 11.
15. See Art. 3(3).
16. Only Austria of the contracting States to the Brussels Convention is a party to
the Hamburg Rules. No other party to the Lugano Convention is a party.
17. As to the approach to a jurisdiction clause in a case which under English law
would be within the Hague-Visby Rules see Chapter 26.
18. Article 21(2).
19. Article 22.
20. Article 25(2).
21. Enacted into English law by the Carriage of Goods by Road Act 1965.
22. Article 25(2) and (5). The CMR focuses on liability of the road carrier and
arrest would be available in English law only in the context of "maritime" claims.
23. See Art. 3(1), which provides: "1. In legal proceedings arising out of carriage
under this Convention, the plaintiff may bring an action in any court or tribunal of a
contracting country designated by agreement between the parties and, in addition, in the
courts or tribunals of a country within whose territory (a) the defendant is ordinarily
resident, or has his principal place of business, or the branch or agency through which
the contract of carriage was made, or (b) the place where the goods were taken over by
the carrier or the place designated for delivery is situated, and in no other courts or
tribunals."
24. See Art. 31(3)(4).
25. By English law the person on whose application the release is granted is
deemed to submit to thejurisdiction of the English court (Merchant Shipping Act 1995,
Sch. 8, Part II, para. 10). See further Chapter24.
26. As to its application see Chapter 24.
27. So the principles of the Arrest Convention are made part of English law
generally but when applying as the Convention through the Brussels Convention will
apply subject to any limitation in scope of the Convent ion (see e.g. The Po [1991] 2
28. Cp. the direct enactment of the Arrest Convention 1952 and the Collision
(Civil Jurisdiction) Convention 1952 in Ireland by the Jurisdiction of Courts (Maritime
Conventions) Act 1989 and the conseq uent recognition of arrest as distinct from the
substantive action in rem. See e.g. The Von Rocks [1998] 2 Lloyd’s Rep. 198 (whether
a dredger was a ship within the Arrest Convention and therefore could be arrested in
Ireland for English proceedings).
29. I.e. s.21(8) of the Supreme Court Act 1981 as construed (rightly it is suggested)
in The Kommunar (No. 2) [1997] 1 Lloyd’s Rep. 8 see infra.
30. See The Nordglimt [1987] 2 Lloyd’s Rep. 470, this reasoning not being
affected by the disapproval by the H.L. of the distinction between action in personam
and action in rem (see The Indian Grace (No. 2) [1998] 1 Lloyd’s Rep. 1 and Chapter
10).
31. In The Po [1991] 2 Lloyd’s Rep. 206 the Court of Appeal was content to
uphold substantive jurisdiction under the Collision Jurisdiction Convention 1952 ( see
infra) on the basis that the plaintiff had complied with the Convention and English law
—but that leaves the question open as to whether compliance with the Convention is,
apart from procedure, enough for jurisdiction in national law. To be consistent under the
Arrest Convention 1999 there is need for English law to change the time of the seco nd
link from the issue of the claim form to the arrest ( see supra).
34. See, for the legislative framework, the Insolvency Act 1986, ss.285, 346. As to
the court’s exercise of discretion under s.285, see Re Evelyn [1894] 2 Q.B. 302; Ex
parte Coker (1875) L.R. 10 Ch. App. 652.
35. Contrast The Zafiro [1960] P. 1 with The Constellation [1965] 2 Lloyd’s Rep.
538.
36. For the legislative framework, see the Insolvency Act 1986, ss.126, 128, 130
(as compulsory winding up), ss.112, 183 (as voluntary winding up).
37. As to the exercise of the court’s discretion under ss.112, 125 and 183, see The
Zafiro [1960] P. 1; Re Aro Co. Ltd [1980] Ch. 196 (construing the equivalent provisions
of the Companies Act 1948). As to the equation of arrest and execution in this context,
see fn 35 supra.
38. The Arrest Convention 1999 provides for the power to order counter security
as a condition of arrest (Art. 6). As to the grounds for damage for wrongful arrest see
infra.
39. Civil Jurisdiction and Judgments Act 1982, s.26(2) —see infra.
40. See The Tjaskmolen (No. 2) [1997] 2 Lloyd’s Rep. 276.
41. See The Kommunar (No. 3) [1997] 1 Lloyd’s Rep. 22.
42. As to when cargo or freight may be the focus of an action and as to what is
included in the ship, see Chapter 2. As to the limitation of maritime arrest in Scotland
see The Afala [1995] 2 Lloyd’s Rep. 286.
43. E.g. The Alexander (1811) 1 Dods 282—rigging detached from the ship for
safe custody; The Palaquin Fed. Court Canada 1996 LMLN 439 —engine removed for
repair—it being apparently relevant that it was intended to return it to the ship. As to the
meaning of "ship" see 18.30 infra.
44. See The Silia [1981] 2 Lloyd’s Rep. 214 applying the principle of part of a
ship remaining a part though detached following The Alexander, but to property on the
ship which was not and never had been part of it.
45. As to application for discharge see infra.
46. CPR 61.8(8), (9). The application is to the Marshal who, if he considers it
reasonable, on a satisfactory undertaking as to the payment of fees and expenses, will
apply to the court for an order. As to liability for fees and expenses see infra.
47. 61.8(10).
48. The Flora (1886) L.R. 1 A. & E. 45.
49. See The Permina Samudra XIV [1978] 1 Lloyd’s Rep. 315.
50. The Stephan J [1985] 2 Lloyd’s Rep. 344. Further if a writ is amended after
service and arrest of one ship to delete a claim it does not offend the single ship rule for
another ship to be arrested in respect of that claim. See The Damavand [1993] LMLN
357 (Singapore C.A.).
51. The Kommunar (No. 2) [1997] 1 Lloyd’s Rep. 8—a decision clearly supported
by the precise and narrow wording of the provision.
52. See 61.5(5), (6). Notice must be given to a Consular Officer. See Chapter 12.
53. 61 PD 5.2. The rules continue the amended Rules of the Supreme Court in
excluding any power of the Court to refuse a warrant e.g. for lack of disclosure (as to
which see The Varna [1993] 2 Lloyd’s Rep. 253). There must be a claim, i.e. a claim
form has been issued (see e.g. the wording of Form ADM 4). As to discretion on
rearrest or multiple arrest see The Tjaskmolen (No. 2) [1997] 2 Lloyd’s Rep. 276; The
Bumbesti [1999] 2 Lloyd’s Rep. 48).
54. 61 PD 5.3. The claimant must request a search of the Register before issue of
the warrant to determine if there is any caution against arrest in force (6 1.5(3)). As to
cautions see 15.69.
55. The Fierbinti [1995] LMLN 396. See also The Pacific Bear [1979] H.K. Rep.
125.
56. As to those alternative modes of securit y, see supra.
57. It is therefore available once a claim exists and is not dependent on likely
success (see e.g. The Gina [1980] 1 Lloyd’s Rep. 398).
58. This has been construed as final judgment on appeal. See The Freir, The Albert
(1875) 2 Asp. M.L.C. 589; The Miriam (1874) 2 Asp. M.L.C. 259 and it has been
suggested that after judgment it could be rearrested in respect of costs (see The
Freedom (1871) 1 Asp. M.L.C. 136).
59. CPR 61.12. As to the power to order the retention, its e xercise and
consequences see infra.
60. The Alletta [1974] 1 Lloyd’s Rep. 40. The limitation may require prejudgment
bail (see 15.133).
61. [1982] 2 Lloyd’s Rep. 555. The jurisdictional basis for the action is, however,
arguable (see Chapter 2).
62. Reference was made to The Alletta (supra, fn. 60) in which the enforcement of
foreign judgments was also distinguished by a statement that they were foreign. There
remains a jurisdictional point as to whether under the Supreme Court Act 1981 an action
in rem will lie to enforce a judgment (see Chapter 2).
63. Civil Jurisdiction and Judgments Act 1982, s.34 (which came into force on 24
August 1982); The Indian Grace [1993] 1 Lloyd’s Rep. 387 and see Chapter 27.
64. The Saint Anna [1983] 1 Lloyd’s Rep. 637; The Stella Nova [1981] Com. L.R.
200—but arbitration costs would probably not be recoverable. See The Atlas Pride
[1994] LMLN 388 (Singapore H.C.). See further Chapters 2, 25.
65. But it may be arguable that unlike the lien created by a claim in rem, the
maritime lien remains unaffected by any type of proceedings. See generally Chapter 18.
66. See The Indian Grace (No. 2) [1998] 1 Lloyd’s Rep. 1 and Chapter 10.
67. CPR 61.5(1)(b). For a reference to the possibility that the provision has
changed the approach in English law see the summary of relevant authorities in The
Ruta [2000] 1 Lloyd’s Rep. 359, the court there being faced with the direct issue of
rearrest prior to judgment (as to which see infra).
68. Prior to Part 61 known as a cav eat.
69. All cautions are entries in one book. The record of cautions is open to
inspection when the Registry is open.
70. 61 PD 6.1, putting into the rules the views expressed in The Anna H [1995] 1
Lloyd’s Rep. 11. See Chapter 10.
71. 61.7(4).
72. 61.7(5). As to wrongful arrest see infra.
73. 2.2(d).
74. [1995] 1 Lloyd’s Rep. 11 (C.A.).
75. Surprisingly the Arrest Convention 1999 contains the same prerequisite.
Contrast the Collision (Civil Jurisdiction) Convention 1952 ( see Chapter 5).
76. For discussion see supra.
77. See The Arctic Star, The Times, 5 February 1985 (C.A.)—in which the
rearrest was permitted when shipowner took proceedings to restrain the use of a
guarantee available when the amount of bail was initially set; The Ruta [2000] 1
Lloyd’s Rep. 359 (construing in that way the unqualified power to arrest to obtain
further security up to the value of the ship now in CPR 61.6. The same principles apply
to the rearrest of a ship initially arrested and released ( The Tjaskmolen (No. 2) [1997]
2 Lloyd’s Rep. 476) (but in that case maintaining the rearrest upon provision of counter
security to meet the costs flowing from the failure to maintain the first arrest).
78. See The Hero (1865) B. & L. 446 erroneous entry of amount of claim by a
clerk; The Ruta (in which the issue was priority of claim) insufficient security and other
factors. See also the Arrest Convention 1952, Art. 13(3) —requiring "good cause" (see
supra). As to arrest of other ships or provision of other security see infra. As to the
Arrest Convention 1999 see fn. 79.
79. The Arrest Convention 1999 provides for rearrest or multiple arrests if the
amount of security provided is inadequate (up to the value of the ship originally
arrested), the defendant is unlikely to be able to fulfil obligations or the ship arrested or
security provided was released with the consent of the claimant on reasonable grounds
or the claimant could not by reasonable steps prevent the release (Art. 5(1) (2)).
80. See The Marinero [1955] P. 68; The Golaa [1926] P. 103; The Christiansborg
(1885) 10 P.D. 141. But compare The Arctic Star (fn. 77). As to the requirement to
release from arrest on the establishment of a limitation fund see infra "Release from
arrest".
81. The Kommunar (No. 2) [1997] 1 Lloyd’s Rep. 8 see supra.
82. State Immunity Act 1978, s.13(2) and (4). See fn. 87 for further restrictions on
the power to arrest ships owned by foreign States.
83. Ibid., s.13(3).
84. Section 29(1) as qualified by the Merchant Shipping (Salvage and Pollution)
Act 1994, Sch. 2, para 3. See for discussion Chapter 12.
85. Section 24(2). See for discussion Chapter 12.
86. As to restrictions on claims relating to remuneration or contract o f service of
master or crew of ships belonging to countries specified in Orders in Council made
under Consular Relations Act 1968, s.4, see Chapter 12.
87. CPR 6 1.5(5). There appears to be no such extant Convention or Treaty. The
State Immunity (Merchant Shipping) (USSR) 1978 (SI 1978/1524) implementing a
treaty (Protocol to Treaty on Merchant Navigation 1977) was revoked by SI 1997/2591
which applied the protection to Georgia, Russian Federation and Ukraine. That in turn
was revoked by SI 1999/668. In The Guiseppe di Vittorio [1998] 1 Lloyd’s Rep. 136
the C.A. declined to apply the unamended order to the successor states of the USSR on
the grounds that there was no evidence that those states had accepted obligations under
the Protocol.
88. As e.g. when in seeking an arrest warrant the supporting declaration does not
contain all the particulars required or where since the issue of the claim form the
beneficial ownership of a ship has changed because of judicial sale ( see CPR 61.5(3)
(4)) or seeking the retention of property under arrest on a stay of proceedings (as to
which see infra).
89. It also may be an alternative way of expressing the general principle against
rearrest. See e.g. The Kommunar (No. 2) [1997] 1 Lloyd’s Rep. 8; The Tjaskmolen (No.
2) [1997] 2 Lloyd’s Rep. 476; The Bumbesti [1999] 2 Lloyd’s Rep. 481. As to the
application and restriction on the principle see supra.
90. The courts have power to set aside a claim form CPR 11(6).
91. See e.g. the comments in The Varna [1993] 2 Lloyd’s Rep. 253 as to the
decision in The Kherson [1992] 2 Lloyd’s Rep. 261, but the claim form or the arrest
warrant may arguably not be set aside if the sole purpose is security for foreign
proceedings—the English proceedings may be stayed (see infra). As to the court’s
power to set aside a claim form, see CPR 11(6) and Chapter 9.
92. As to the question of the scope of such clauses and in particular that of their
reference to “ security proceedings” such as arrest, see infra and Chapter 12.
93. See The Rena K [1979] Q.B. 377; [1978] 1 Lloyd’s Rep. 545 (a decision
commercially desirable as with respect legally doubtful —it is difficult to see any basis
for discretionary imports of a condition or release when there is no authority to r etain
the property in the first place (i.e. the continued validity of the writ) —in effect the
decision held the action in rem was suspended as the plaintiff may have to return to
court if the award was not met).
94. The Tuyuti [1984] 2 Lloyd’s Rep. 51—the Court of Appeal accepting the
rationale of The Rena K as to the possibility of a return to court but retaining the
foundation for arrest through limiting the effect of the stay.
95. Ibid.
96. In force in respect of security given after 1 November 1984 (SI 1984/1553).
As to Scotland, see s.27 as amended by the Civil Jurisdiction and Judgments Act 1991,
Sch. 2, para. 12.
97. Compare (i) the power to grant interim relief apart from arrest conferr ed by the
Civil Jurisdiction and Judgments Act 1982, ss.24 and 25 ( see Chapter 8); (ii) the United
States view in relation to arbitration (see Federal Arbitration Act 9 USC 14, 201 –08,
s.8); (iii) the South African Admiralty Jurisdiction Regulation Act 198 3, s.5(3).
98. So a case such as The Maritime Trader [1981] 2 Lloyd’s Rep. 153, in which a
writ in rem had been issued but no arrest made or security given, would not be within
the provision. But The Tuyuti principle will continue to apply. See infra.
99. [1993] 1 Lloyd’s Rep. 101. See also The World Star [1986] 2 Lloyd’s Rep.
274; The Emre II [1989] 2 Lloyd’s Rep. 182, in which case Sheen J. also made an order
for sale pendente lite because the arrest costs were consuming the security unless there
was an undertaking by the defendant to pay the costs. As to arresters’ costs see infra.
100. In The Sylt [1991] 1 Lloyd’s Rep. 240 an attempt to use the provision to
enforce a judgment of a court in Sierra Leone failed, first on the ground that proceedings
should have been brought in Germany but also that the proceedings now sought to be
stayed were barred as the matter had been litigated in Sierra Leone. But it is arguable
that the proceedings were to enforce a judgment —and if so the question remains
whether s.26 has any part to play. As to the enforcement of foreign judgments see
Chapters 27, 28.
101. A claimant may apply to stay his action in this country having also brought an
action overseas (AG v. Anderson, The Independent, 31 March 1988) but in The Sylt
[1991] 1 Lloyd’s Rep. 240, Sheen J. plainly disapproved of a plaintiff seeking a stay on
the grounds that he ought to have brought the action elsewhere and also seeking security
under s.26. Neither view touches on the point that the writ or claim form is s imply
linked to the obtaining of security, as to which see The Jalamatoya [1987] 2 Lloyd’s
Rep. 164 and Chapter 12.
102. [1993] 1 Lloyd’s Rep. 523.
103. See Airbus Industries GIE v. Patel [1998] 1 Lloyd’s Rep. 631 (H.L.). See
generally Chapters 12, 25.
104. [1980] 2 Lloyd’s Rep. 546.
105. In 1976 in Marazura Navegacion SA v. Oceanus Mutual Underwriting
Assoc. (Bermuda) Ltd [1977] 1 Lloyd’s Rep. 283 the court refused to restrain a party
from arresting abroad for a London arbitration even though a t that time it was thought
that such arrest was not permissible under English law. A party would not normally be
restrained from arrest solely for security for an English arbitration but would be from
proceedings extending to the substantive issues for arb itration: Petromin SA v. Secnav
Marine Ltd [1995] 1 Lloyd’s Rep. 603.
106. Form ADM 9.
107. See Form ADM 4. Service of a claim form on property to be arrested or
under arrest may on a claimant’s request to the court be served by the Marshal (49 F PD
2.3).
108. CPR 61 PD 5.3. The application is to be made in Form ADM 4 and the
declaration in ADM 5 (5.1).
109. It was held in relation to the (so far as relevant) identically worded RSC
(Ord. 75, r. 5(9)) that the declaration must state clearly whether or no t the claim is on a
“sister ship” basis (The Lloyd Pacifico [1995] 1 Lloyd’s Rep. 54).
110. As to the necessity of notice to consuls, see supra. It is to be noted that where
relevant it is the "beneficial" ownership of all the shares in t he ship which must be
stated.
111. As to such jurisdiction and liability see Chapter 2.
112. 6 1.5(4), (5), (6) The Varna [1993] 2 Lloyd’s Rep. 253.
113. 61 PD 5.2.
114. 6 1 . 8 .
115. [1992] 2 Lloyd’s Rep. 257.
116. The expense of the necessary moving of a ship may be considered as the
Marshal’s expenses (The Mardina Merchant [1974] 3 All E.R. 749). As to expenses in
relation to the discharge of cargo, see infra.
117. [1981] 1 Lloyd’s Rep. 13.
118. Ibid., at p. 17.
119. As to which, see infra.
120. See e.g. The World Star [1987] 1 Lloyd’s Rep. 452. For a discussion of
repairs for which sums may justifiably be claimed as expenditure by the Marshal see
The Ocean Blessing [1994] LMLN 386 (Singapore High Court).
121. The Rubi Sea [1992] 1 Lloyd’s Rep. 634.
122. [1981] 1 Lloyd’s Rep. 13, at p. 17. An arresting party incurring further costs
may obtain priority if the expenditure was for the fund as a whole ( see The Ocean
Glory [2002] 1 Lloyd’s Rep. 679—expenditure only for the interests of one party,
equitable jurisdiction to give priority not exercised).
123. CPR 61.5(9).
124. CPR 61 PD 5.6 Form ADM 10.
125. CPR 61 PD 5.7 Admiralty and Commercial Court Guide No. 13. The cost of
the premium has been accepted as part o f an arrester’s costs (see The Fairport [1965] 2
Lloyd’s Rep. 183, 185).
126. The Marshal has custody but not possession —all possessory rights which
previously existed continue. See The Arantzaru Mendi [1939] A.C. 256.
127. In The Jarlinn [1965] 2 Lloyd’s Rep. 191, Hewson J. reminded all concerned
that not only ship masters but pilots and dock masters had been brought before the court
for contempt. An advertisement that a ship sold by judicial sale may remain subject to
encumbrances may be contempt (The Cerro Colorado [1993] 1 Lloyd’s Rep. 58).
128. See n. 129.
129. See e.g. The Jarvis Brake [1976] 2 Lloyd’s Rep. 320—attempt by owner to
sell the ship after order for appraisement and sale and temporary removal of arrest
document—no fine, order for costs: The Synova [1976] 1 Lloyd’s Rep. 40—removal of
arrest document by master—fine £100.
130. CPR 6 1.8(1). A claim form on property arrested or to be arrested (on a
claimant requesting the court) may be served by the Marshal (61 PD 3.7).
131. The Queen of the South [1968] P. 449. A vessel cannot remain in the custody
of the Marshal and be allowed to trade out of the jurisdiction —an order to that effect is
contradictory: The Bazias 3 and The Bazias 4 [1993] 1 Lloyd’s Rep. 101.
132. See The APJ Shalin [1991] 2 Lloyd’s Rep. 62. As to release from arrest see
infra.
133. This will normally include any move which may be made under the Marshal’s
orders or by direction of the court (see The Mardina Merchant [1974] 3 All E.R. 749
—see 15.115).
134. The failure to secure release of ship under arrest may create a "lien" contrary
to a contractual term prohibiting its creation. See The Vestland [1980] 2 Lloyd’s Rep.
171 and infra. See also in relation to a sale guarantee The Barenbels [1984] 2 Lloyd’s
Rep. 388; Rank Enterprises Ltd v. Gerard [2000] 1 Lloyd’s Rep. 403.
135. An arrest may be made even though the sheriff is in possession under a writ of
fieri facias (The James W. Elwell) [1921] P. 351.
136. The Katingati [1976] 2 Lloyd’s Rep. 372. Such a caution ma y also be lodged
against the proceeds of judicial sale ( ibid.)—see infra.
137. The Golden Elephant [1976] 2 Lloyd’s Rep. 462 (C.A., Singapore).
138. CPR 61.8(5).
139. CPR 61 PD 11.1, 11.2.
140. CPR 6 1.8(7). Under the former rules it was held that the intervention is
limited to the protection of the interest. See The Lord Strathcona [1926] A.C. 108
([1925] P. 143) in which Hill J. held that the charterer intervenor had no locus standi to
dispute the validity ofthe mortgages. Conversely, an intervenor may have to accept the
role of the shipowner where he is defending the res (see e.g. The Byzantion (1922) 12
Ll. L.Rep. 9). The only indication that there could be a wider role under the CPR is the
omission of "intervention".
141. The Mara (formerly the Mawan) [1988] 2 Lloyd’s Rep. 459. This analysis is
probably unaffected by the acceptance that an action in rem has a "defendant" or
"defendants" in person interested in the ship or by the change in rules. See Chapters 2,
10.
142. [1974] 3 All E.R. 749. See also The World Star [1987] 1 Lloyd’s Rep. 452.
143. See 15.107.
144. [1981] 1 Lloyd’s Rep. 513.
145. It seems irrelevant whether the order relating to the discharge is given prior to
or after appraisement and sale, altho ugh the cargo owners’ case in The Jogoo was
essentially linked to the sale of the ship. For a similar approach in South Africa see
National Iranian Oil Co. v. Banque Paribas (Suisse) [1993] LMLN 366.
146. As to discharge applications without being made a party see 15.107. As to the
rights and obligations of a mortgagee in respect of arrest upon default by the mortgagor
see The Tropical Reefer [2004] 1 Lloyd’s Rep. 1.
147. See fn. 160.
148. See e.g. The Gina [1980] 1 Lloyd’s Rep. 398.
149. CPR 61.7(5)(b). See infra.
150. The Evangelismos (1858) Swab. 378, approved in The Strathnaver (1875) 1
App. Cas. 58 (P.C.) and applied as binding in The Kommunar (No. 3) [1997] 1 Lloyd’s
Rep. 22. A claim is dealt with at the same time as the claim on which the arrest was
based. See Astro Vencedor Compania v. Mabanaft GmbH [1971] 2 Q.B. 588.
151. See The Cheshire Witch (1864) B. & L. 362; The Margaret Jane (1869) L.R.
2 A. & E. 345 (arrest made "crassa negligentia"); The Saqr Jubail [1985] LMLN 140.
As to damages for loss caused by non -release by reason of a caution against release, see
supra.
152. [1981] 1 Lloyd’s Rep. 483.
153. As to the availability of damages for delay in release because of a caution see
above “Caution against release” .
154. CPR 61.8(4). The application is through Form ADM 12 including an
undertaking to pay fees and expenses.
155. See e.g. The Tychy [1999] 2 Lloyd’s Rep. 11; The Bumbesti [1999] 2 Lloyd’s
Rep. 481; The Lloyd Pacifico [1995] 1 Lloyd’s Rep. 55, 152. For an example of
attaching a condition of counter security to maintaining a rearrest see The Tjaskmolen
(No. 2) [1997] 2 Lloyd’s Rep. 475.
156. See the comments in The Varna [1993] 2 Lloyd’s Rep. 253.
157. See cases cited in fn. 155.
158. See The Italy II [1987] 2 Lloyd’s Rep. 162.
159. Normally it seems that property must be under arrest for an order for
appraisement and sale to be made. But see note to 61.10 in Civil Procedure 2005 for
possible qualification.
160. The Moschanthy [1971] 1 Lloyd’s Rep. 37 applied in The Bazias 3 and
Bazias 4 [1993] 1 Lloyd’s Rep. 101. If the alternative security is abroad there must be
sufficient protection. See The Bumbesti [1999] 2 Lloyd’s Rep. 481 (considering
whether a court order would give that protection). No release prior to trial will be
ordered simply on the ground that because of other claims it was unlikely that the
arrester’s claim would be met: The APJ Shalin [1991] 2 Lloyd’s Rep. 62. As to the
power to order rearrest to provide further security and maximum value of the security
see 61.6. See The Staffordshire (1872) Asp. M.L.C. 365; (1872) L.R. 4 P.C. 194; The
Charlotte [1920] P. 78. In salvage cases failin g agreement as to the value of ship or
cargo an affidavit of value should be filed prior to release. The value stated will be
binding subject to a power to rectify for a bona fide mistake. An appraisement may be
requested if the arrester does not agree wit h the affidavit of value.
161. Civil Jurisdiction and Judgments Act, s.26; The Bazias 3 and Bazias 4 (supra
fn. 131).
162. The Rena K [1979] 1 All E.R. 397; [1978] 1 Lloyd’s Rep. 545; The Tuyuti
[1984] 2 All E.R. 545; [1984] 2 Lloyd’s Rep. 51 release on condition of alternative
security.
163. See The Vanessa Ann [1985] 1 Lloyd’s Rep. 549—release on execution of
equitable mortgage and undertaking to enter into a statutory mortgage.
164. The Putbus [1969] P. 136 at p. 149.
165. [1978] 2 Lloyd’s Rep. 520.
166. Replacing other legislation, including the Act of 1958.
167. Sections 17–19, Sch. 4. For discussion see Chapter 24.
168.[1990] 1 Lloyd’s Rep. 532; [1990] 3 All E.R. 476.
169.Now see (as to cautions) 61.7(2)(b).
171. See The Wexford (1883) 13 PD 10. But see Chapter 25 fn 65.
172.CPR 61.10; 61 PD 9 Form ADM 14.
173.See e.g. The Westport [1965] 2 All E.R. 167.
174.Having undertaken to pay the Marshal’s fees and expenses. See Chapter 25.
175.See The Myrto [1977] 2 Lloyd’s Rep. 243 at pp. 259 –260; The Emre II
[1989] 2 Lloyd’s Rep. 182. Such an order may be made only by the Admiralty Judge
(8.1(2)).
176.For an example of the provision of security through a mortgage see The
Vanessa Ann [1985] 1 Lloyd’s Rep. 549.
177. See supra.
178.An order maintaining arrest and permitting trading out of the jurisdiction is
inherently contradictory, see The Bazias 3 and The Bazias 4 [1993] 1 Lloyd’s Rep.
101.
179.The entering of a caution against arrest is dependent on an un dertaking to give
sufficient security (6 1.7(2)).
180.See e.g. 61.6, 7, 61 PD 5.3—such an application may be made by any person
who has filed an acknowledgment of service.
181. See supra. Because of its inherent connection with arrest "bail" presumably
cannot qualify as interim relief within the Civil Jurisdiction and Judgments Act 1982,
ss.24 and 25, so as to allow direct lodging in England in respect of foreign proceedings.
182.Whether bail could still be required by a party (as to which see The Saudi
Star (unreported, 1982)) would now seem unlikely. The Admiralty Court has
unqualified power to specify the form and amount of the security, to order release and if
the security offered is deemed adequate the purpose of the arrest and substitution would
be met.
183.Its identification with the ship means that the bail bond is limited to the
amount of the ship if the3 ship is worth less than the sum of the bond. See The
Staffordshire (1872) 1 Asp. M.L.C. 365; (1872) L.R. 4 P.C. 194).
184.An undertaking to give bail continues to bind if on reliance on it a ship leaves
the jurisdiction. See The Ring [1931] P. 58.
185. The Roberta [1928] P. 1; The Clara (1855) Swab. 1; The Russland [1924] P.
55. At one time it was the practice not to allow bail in possession actions but they are
now treated as any other case (see e.g. The Gay Toucan [1968] 2 Lloyd’s Rep. 245). In
the Arrest Conventions 1952 and 1999 a distinction is drawn between ownership and
possession cases and others. In the two excepted categories there is no obligation to
release on adequate security but a discretionary power in a court to permit continuous
trading (see 1952 Art. 5, 1999 Art. 4).
186.See e.g. The George Gordon (1884) 9 P.D. 46; The Irish Fir (1943) 76
Ll.L.Rep. 51, at p. 54; The Gulf Venture [1984] 2 Lloyd’s Rep. 445.
187.See The Saudi Star (unreported) 1982. Cf. [1983] 1 LMCLQ 99 (Matthews).
188.See The Prinsengracht [1993] 1 Lloyd’s Rep. 41 at pp. 45 –46.
189. The City of Mecca (1879) 5 P.D. 28; The Bulgaria [1964] 2 Lloyd’s Rep.
543. Although Clarke J. doubted that bail under protest could be given if as in The Anna
H there was also a caveat against arrest containing as it must an undertaking to give bail
(see [1994] 1 Lloyd’s Rep. 287).
190.[1993] 1 Lloyd’s Rep. 41.
191.[1994] 1 Lloyd’s Rep. 287.
192.[1995] 1 Lloyd’s Rep. 11.
193.Just as it is incorrect to equate the assertion by a court of jurisdiction to grant
a provisional measure (e.g. a freezing in junction) with assertion of jurisdiction on the
merits (The Sargasso [1994] 2 Lloyd’s Rep. 6).
194. The Saudi Star (1982). A foreign corporation was found acceptable. It seems
uncertain as to the extent to which the court insisted on proof of assets in England (see
[1983] 1 LMCLQ 99).
195.See e.g. The Arctic Star, The Times, 5 February 1985 (C.A.) (fn. 77).
196. See supra.
197.The earlier provision of bail does not operate as a limitation on in personam
liability any more than it would be limited to the ship. See The Dictator [1892] P. 304
at p. 332; The Gemma [1899] P. 285.
198. The Gemma [1899] P. 285; The Joannis Vatis (No. 2) [1992] P. 213. The
seizure is through the writ of fieri facias (the usual method of execution available to a
judgment creditor).
199.See CPR 61.5(10).
200.Whether a guarantee is sufficient security will depend on the wording a nd the
substantive rights. See e.g. as to French law construed by the High Court The Spirit of
Independence [1999] 1 Lloyd’s Rep. 43. For an example of the construction of the
wording of a guarantee see The Rio Assu (No. 2) [1999] 1 Lloyd’s Rep. 115 (C.A.); The
Elpis [1999] 1 Lloyd’s Rep. 606.
201. The Alletta [1974] 1 Lloyd’s Rep. 40, at p. 50.
202.See CPR 61.5(10).
203.See CPR 61.6. The Polo II [1977] 2 Lloyd’s Rep. 115; The Moschanthy
[1971] 1 Lloyd’s Rep.37.
204. See supra.
205.See e.g. The Oakwell fn. 206.
206.[1999] 1 Lloyd’s Rep. 249.
207.The obligation to accept service of the writ in rem was critical as no writ in
personam has been served within the required period.
208.The case concerned the methods of service under the former rules of court,
but the reasoning remains applicable to the modes of service permitted under the CPR.
See 61 PD 3.6 (particularly (5)). See generally Chapter 10.
209.See e.g. Merchant Shipping Act 1988, s.30A—detention of unsafe ships
(inserted by Merchant Shipping (Registration etc.) Act 1993 (now Merchant Shipping
Act 1995, s.95).
210. (1952) Art. 2, (1999) Art. 8(3).
211. The Charger [1966] 1 Lloyd’s Rep. 670.
212. The Queen of the South [1968] P. 449 applied in The Freightline One [1986]
1 Lloyd’s Rep. 266. Port dues are payable out of proceeds of sale in respect of an
arrested ship brought into port by the arrester (in this case the salvor). See The Mari
Chandris (1942) 71 Ll. L. Rep. 225. As to the effects of a sale see The Blitz [1992] 2
Lloyd’s Rep. 441 and Chapter 25.
213. A ship may be arrested although in possession of a sheriff as part of an
execution process. (See The James W. Elwell [1921] P. 351.)
Chapter 16
The "Freezing" Injunction 1. Nature and Purpose

16.1 The point of the freezing injunction is that the plaintiff proceeds by stealth so
as to pre-empt any action by the defendant to remove his assets from the jurisdiction 1 or
dissipate his assets wherever they are. 2 The rationale and fundamental principle is that
"no court should permit a defendant to take action designed to frustrate subsequent
orders of the court". 3 This principle has been extended to allow the grant of t he
injunction (as other interim remedies) in connection with proceedings in foreign courts. 4
16.2 The aim is achieved by an order directed at the defendant either prior or
subsequent to an unsatisfied judgment 5 in many cases specifying a maximum value
which is subject to the order. It may, however, relate to specific assets. Where there is a
dispute between claimant and defendant as to whether an asset is owned by the
defendant or a third party it depends on the circumstances whether the defendant’s
assertion of non-ownership is accepted, there is further enquiry or the issue is the
subject of separate consideration. 6
16.3 The order granting the injunction will normally include a direction that the
party against whom it is granted informs the other party of all his assets in England and
Wales.7 Further the Court has specific power to make an order directing a party to
provide information about the assets (including their location) subject to an injunction. 8
16.4 Despite somewhat persistent statements in the 1970s by Lord Denning M.R. 9
the injunction does not amount to an attachment of assets. 10 To this extent it is
distinguishable from the arrest of a ship or other property as part of an action in rem.
Further, its purpose is not to provide security for the plaintiff’s claims save insofar as it
removes the risk of dissipation of the assets. The sanction for breach is contempt of
court, the possible sanctions being debarring from defending the substantive action,
imprisonment (for an individual), a fine or sequestration of assets. Ancillary orders (for
example, of transfer) may impose on a defendant or even a third party an obligation to
restore funds.
16.5 It follows that the "security" provided by the injunction is limited to the
effectiveness of the injunction as against the defendant and third parties, and that the
beneficiary of the injunction is in no way a secured creditor. 11 No priority rights stem
from the injunction and its scope is therefore limited by trading commitments of the
defendant. It must not be used to place the defendant under undue pressure 12 and an
injunction may be varied to permit use of assets for a stated purpos e.
16.6 This is not to say that the injunction is ineffective. Far from it, as its effect is
to render any person knowingly acting contrary to it to proceedings for contempt of
court. In practice it may simply stop a business from operating. It is to say t hat the
injunction does not create an incumbrance on the assets subject to it, although it may be
argued that, its practical effect being "detention", it is within the scope of the
Convention Relating to the Arrest of Sea Going Ships 1952. If that were so it is contrary
to the Convention that it be used for any claim in relation to ships other than a maritime
claim as defined in the Convention 13—clearly not an approach taken or likely to be
taken by the English courts. 14 2. Roots and Development
16.7 As was said in Chapter 14, the root of the injunction lies in two cases in the
Court of Appeal in 1975, one of which initially gave its name to the injunction (the
"Mareva" injunction). Its development is a prime example of judicial creativity,
although the statutory provision authorising the granting of interlocutory injunction
whenever "just and convenient" (now the Supreme Court Act 1981, section 37(1)) gave
the judiciary a broad base on which to build. The freezing injunction is, however, to be
distinguished from the interim injunction generally sought prior to a hearing. It has a
precise purpose, no connection with any final relief sought and a prerequisite is that the
risk of dissipation of assets must be shown. As distinct from interim injunctions in
general the Supreme Court Act 1981 does no more than recognise the freezing
injunction. In section 37(3) it is provided:
"(3) The power of the High Court under subsection (1) to grant an interlocutory
injunction restraining a party to any proceedings from removing from the jurisdiction of
the High Court, or otherwise dealing with, assets located within that jurisdiction shall
be exercisable in cases where that party is, as well as in cases where he is not,
domiciled, resident or present within that jurisdic tion."
16.8 The provision assumes the power to grant and focuses on the availability
against a home-based defendant, an aspect which had in effect been judicially settled
prior to the statute. The essence of the freezing injunction, as with the search orde r
(formerly the Anton Piller order) to obtain evidence, is speed, and application may be
made before the issue of the claim form on the basis of an application supported by
affidavit evidence.
16.9 The remedy, together with orders to provide information ab out assets is now
recognised by the Civil Procedure Rules as an "interim remedy". 15 As discussed in
Chapter 14 there is provision for the grant of such a remedy at any time including before
proceedings are started and after judgment. 16 Such a remedy may be granted on
application without notice with safeguards as to the circumstances in which the grant
may be made and notice of the right to apply to set aside the order. 17 As its grant is a
matter of judicial discretion the Court of Appea l will not interfere with the exercise of
that discretion simply on the grounds that the court would have exercised it differently. 18
This reluctance is even more emphasised in practice under the Civil Procedure Rules. 19
English and Foreign Elements
16.10 Initially the freezing injunction was seen as ensuring that a foreign -based
defendant in English proceedings did not move assets out of England prior to judgment.
Its scope is now much wider, applying in respect of proceedings initiate d in an English
or foreign court to English and foreign defendants, and English and foreign assets. 20 It is
within the scope of interim remedies which, subject to requirements of agreement by the
parties or permission of the tribunal for an application by a party, may be granted by a
court in support of English and foreign arbitral proceedings. 21 Jurisdiction "in
personam"
16.11 Just as arrest was traditionally essentially linked to the action in rem so the
Mareva injunction was initially thought to depend on the existence of a cause of action
in personam in an English court. The cause of action had to be enforceable under
English law at the date of application for the injunction on the basis of the breach of a
legal or equitable right of the plaintiff. It had to be enforceable both in the sense of the
recognition of the claim and the creation of jurisdiction over it.
16.11A The freezing injunction may now be granted in respect of proceedings 22
before an English or a foreign court. 23 The extent of some judicially created limitations
on the existence of the power to grant must be read in the light of judicial comments in
the House of Lords that it may be incorrect to fetter the unfettered statutor y provision
based on "just and convenient". 24 But clearly there must be jurisdiction over the
defendant and arguably over the subject -matter.25 The principles as to exercise of the
power continue to be relevant. Whether the injunction is sought in respect of English or
foreign proceedings the claim form may be served out of England with the permission of
the court.26 There does not appear to be specific reference in the rules to service out of
England without permission where either the jurisdiction over th e substantive claim or
the interim remedy is based on EC Regulation 44/200 1 or the Brussels or Lugano
Convention. However, the general provision relating to service out of England in those
circumstances will include this type of claim. 27 Jurisdiction "in rem"
16.12 The more an action in rem is seen as an action in relation to property the less
the granting of an injunction ancillary to it seems appropriate. In 1972 in The Conoco
Britannia28 Brandon J. held that equitable remedies in personam could be awarded in
an action in rem. He saw the intention of the Judicature Acts 1873 and 1875 and their
successors as not only conferring jurisdiction to deal with all legal and equitable claims
in one hearing but as obligating a court to endeavour to do so.29 As a consequence, he
saw the question of granting of an injunction as one of discretion. However, in 1980 in
The Stolt Filia30 Sheen J. held that a Mareva injunction could not be granted in an
action in rem on the basis that there was no defendant a gainst whom it could be ordered.
16.13 Although it is now accepted 31 that a claim in rem is no less against a
defendant than a claim in personam this does not necessarily mean that there is
jurisdiction in personam in respect of that defendant. The principle remains that in
respect of the substantive claim that is created by acknowledgment of service of the
claim form without disputing jurisdiction. Once, however, the hurdle of lack of
defendant is overcome the jurisdiction issue is focused on the grant of the injunction. It
is therefore identical with that applicable to an injunction sought in support of an in
personam claim. Need for accrued cause of action
16.14 It does not seem that the express provision that an interim remedy may be
granted before proceedings have started of itself affects the established principle that if
the right is yet to be established or has not yet arisen a freezing injunction will not li e. It
may be that as this limitation is based on the need for a cause of action in English law
the recognition that that is not exclusive may lead to a removal of the limitation —and
the recognition of the anticipatory nature of the injunction. 32
Assuming the limitation remains, it is not enough to show that an action for specific
performance of a contract might lie, it must be shown that there has been a breach of the
contract so that the right is immediately enforceable. Equally the injunction ca nnot be
granted to a purchaser in respect of moneys to be paid as the purchase price of a ship
where the purchaser fears that the ship will have defects. 33 The cause of action or basis
for the claim must have accrued. The limitation may not apply to repudi atory breach and
may be avoided by reliance on the power in equity to act in advance of the law or
through a quia timet injunction.34 English and foreign-based defendants
16.15 For some time it was uncertain whether a freezing injunction would be
granted against a defendant based in England and in one case in 1979 35 it was held that
it would not be granted against a defendant resident in England. However, in 1980 it
was held at first instance 36 and by the Court of Appeal 37 that there was no restriction
dependent on the "base" of the defendant, the primary reason given for the extension to
home-based defendants being the abolition of foreign exchange control. 38 The Supreme
Court Act 1981, section 37(3), confirmed this scope of the jurisdiction, and there are
now no doubts as to it. English and foreign assets
16.16 The injunction is an order against the defendant, but its purpose is to prohibit
removal or dissipation of assets. 39 It follows that it has no purpose if there are no assets
in regard to which it can be granted. To obtain the injunction it is belief in the existence
of assets that is sufficient but the emergence of the fact that there are none will remove
the basis for its grant. Type of assets
16.17 As the freezing injunction looks to the future it will extend to any type of
asset whether acquired prior to or after the granting of the injunction. 40 However, an
asset in which a third party has a proprietary interest which is superior to any claim of
the claimant may be excluded. 41 In many cases an injunction may affect the rights of
third parties (as, for example, a bank, a broker or shipowner). This aspect will be dealt
with in considering the effect of the injunction.
16.18 The injunction is often aimed at bank accounts 42 or insurance proceeds43 but
it was held in the early days of development that it was not restricted to money. 44 It may
be granted in respect of ships, it being irrelevant that a plaintiff may have arrested a
ship or other property in respect of the same claim. 45 There is no restriction to assets
unconnected with other assets, so that the effect of an injunction granted, for example, in
respect of cargo may be to prevent the ship on which it is loaded from leav ing.46 Place
of assets
16.19 Until 1988 the prevailing view was that the freezing injunction was geared
to assets in England or Wales. It was a territorial remedy limited to those assets within
the control of the courts. Such an approach, while understandable, reduced the
efficiency of the injunction as regards international activities in an era in which assets
could frequently and rapidly be moved. A theory then developed that although foreign
assets could be targeted, some English asset was a necessary precondition. This was
followed in 1988 by recognition that this of itself made little sense.
16.20 Numerous decisions consistently recognising the limitation to English assets
culminated in 1986 in Ashtiani v. Kashi,47 a decision of the Court of Appeal, holding
that there was no obligation as a defendant to Mareva proceedings to disclose the
existence of foreign assets as these were not subject to a Mareva. Later decisions of the
same Court leading up to Derby v. Weldon (No. 2)48 took an opposite line, and once that
line was established, applied it as a matter of precedent. In justifying the diversion in
this “developing branch of the law” Lord Donaldson pointed to the unlimited statutory
discretion to grant injunctions and commented that the refusal to grant was an exercise
of discretion which could not provide a precedent —save as to the basic principle on
which the discretion is founded —preventing frustration of court orders. Given the
power to grant a worldwide injunction there was "neither rhyme nor reason in regarding
the existence of some asset within the jurisdiction" as a precondition for granting it in
respect of foreign assets. 49
16.21 It must be desirable not to allow the place of the assets however transitory
entirely to control the availability of them for any judgment in the substantive action in
another court. Implementing the desirability has to take into account in respect of foreign
assets both the factual lack of control by an English court and the control of the legal
system of the place where they are. From the view of the English court control is
exercised through the defendant and the ultimate sanction of being debarred from
defending the substantive action. 50 So the jurisdiction extends to ordering transfer of
assets subject to a worldwide injunction from one foreign jurisdiction to another. 51 The
extent of enforceability of the order in the foreign court is a relevant but not a governing
factor. 52
16.22 From the view of the foreign court, however, the argument that the injunction
is directed at the party and not the assets may carry little weight. It may be that having
regard to the whole of the circumstances it is preferable to leave the parties to obtai n
any provisional remedy at the place of the asset —otherwise there will be a complex
(and perhaps inconsistent) series of measures emanating from different sources. Caution
in extending the scope to assets abroad may be particularly relevant where there is easy
enforceability of judgments between the relevant countries. In considering a worldwide
injunction the court should act with caution. It should not grant such relief "routinely or
without careful consideration". 53
16.23 Where, however, the easy enforceability applies also to provisional
measures (as under a European regime) it was arguable that the pendulum could swing
again to remove some of the objections to orders by a court in one state extending to a
territory of another. 54 But the fundamental risks of inconsistency of judgments of the
foreign and home court, and the further possibility of making orders that in respect of
foreign assets may affect persons or corporations not parties to the English action or
before the court.
16.24 In facing the risks of orders in respect of foreign assets it has been held that
save in exceptional circumstances a worldwide injunction would not be made when
sought to enforce a judgment of a foreign court or award of a foreign tribunal. 55 Where
any order in respect of persons outside England is made to support an action in an
English court it should include a limiting clause:
"19. Persons outside England and Wales
(1) Except as provided in paragraph (2) below, the terms of this order do not aff ect
or concern anyone outside the jurisdiction of this court.
(2) The terms of this order will affect the following persons in a country or state
outside the jurisdiction of this court—
(a) the Respondent or his officer or agent appointed by power of att orney;
(b) any person who—
(i) is subject to the jurisdiction of this court;
(ii) has been given written notice of this order at his residence or place of business
within the jurisdiction of this court; and
(iii) is able to prevent acts or omissions outside the jurisdiction of this court which
constitute or assist in a breach of the terms of this order; and
(c) any other person, only to the extent that this order is declared enforceable by or
is enforced by a court in that country or state. [For worldwide injunction]"56
In relation to assets located outside England the order should include a clause:
"20. Assets located outside England and Wales
Nothing in this order shall, in respect of assets located outside Englan d and Wales,
prevent any third party from complying with —
(1) what it reasonably believes to be its obligations, contractual or otherwise,
under the laws and obligations of the country or state in which those assets are situated
or under the proper law of any contract between itself and the Respondent; and
(2) any orders of the courts of that country or state, provided that reasonable notice
of any application for such an order is given to the Applicant’s solicitors." Where
sought in respect of foreign proceedings
16.25 The statutory power to grant interim relief is set out in the Civil Jurisdiction
and Judgments Act 1982, section 25. It is restricted only by the proviso that the relief
may be refused:
"if in the opinion of the court the fact that the court has no jurisdiction apart from
this section in relation to the subject matter if the proceedings in question makes it
inexpedient for the court to grant it... " (section 25(2))
So the prerequisite is whether the relief would have been granted if the
proceedings were in England. In respect of the discretion then applicable in 1997 in
Credit Suisse Fides Trust SA v. Cuoghi the Court of Appeal disapproved of earlier
authorities holding that the power should be exercised only in exceptional
circumstances. The criterion is "inexpedient". Relevant factors were indicated by Lord
Bingham C.J.57
"It would be unwise to attempt to list all the considerations which might be held to
make the grant of relief under s 25 inexpedient or expedient, whether on a municipal or
a worldwide basis. But it would obviously weigh heavily, probably conclusively,
against the grant of interim relief if such grant would obstruct or hamper the managemen t
of the case by the court seised of the substantive proceedings (the primary court), or
give rise to a risk of conflicting, inconsistent or overlapping orders in other courts. It
may weigh against the grant of relief by this court that the primary court c ould have
granted such relief and has not done so, particularly if the primary court has been asked
to grant such relief and declined. On the other hand, it may be thought to weigh in favour
of granting such relief that a defendant is present in this count ry and so liable to
effective enforcement of an order made in personam, always provided that by granting
such relief this court does not tread on the toes of the primary court or any other court
involved in the case. On any application under s 25 this cour t must recognise that its
role is subordinate to and must be supportive of that of the primary court."
16.26 This approach was consistent with that of Millett L.J. in the same case in
emphasising that the appropriate court for controlling assets is the cou rt of the country in
which the assets are. He thought it regrettable that earlier authorities had indicated that
the grant of a worldwide freezing injunction in support of foreign proceedings would
only be in an exceptional case 58—the criterion was inexpediency. 59
16.27 While the jurisdiction and the likely attitude of the foreign court to a freezing
injunction is relevant, neither is controlling. The jurisdiction to grant interim relief is
not limited by any inability of the foreig n court to grant it, but it may well be a weighty
factor that the foreign court had jurisdiction but declined to make an order. 60
16.28 In Motorola Credit Corporation v. Uzan61 after an extensive review of the
principles and authorities the Court of Appea l pointed to five "particular considerations
to be borne in mind in assessing expediency" whether —
(i) any order would interfere with the case management in the primary court
(ii) it is the policy of the primary jurisdiction to make world wide orders
(iii) there is a danger of inconsistent or overlapping orders in other jurisdictions —
particularly the place of residence of the defendant or location of the assets
(iv) there is any potential conflict of jurisdiction
(v)there is any risk of unenforceability
In the context of (v) and generally the court emphasised the relevance of any
connection with England and as regards (ii) the distinction between the lack of foreign
court jurisdiction and the refusal to exercise it in the particular case. Where there was
no power, in granting the relief the English court could well be seen as using its
ancillary role in supporting the foreign court. 62 In fulfilling that role however in the
Court’s view there still should be, as with provisional measures under the European
regime, a real connecting link with England. 63 So any function as an "international
policeman" requires such a link and the potential for enforcement. 3. Requirement of
an Undertaking by Applicant in Damages and Expenses
16.29 Undertakings by the applicant set out in the forms for freezing injunction
given in the CPR64 as examples include complying with any order compensating the
respondent for loss suffered, to obtain from a bank in England a written guarantee in
respect of any such Order, to issue and serve the claim form in the case in the form of a
draft produced to the court (or serve the claim form), to swear and file an affidavit
substantially in the terms of a draft pr oduced, to serve supporting documents on the
respondent, to pay reasonable costs of any person other than the respondent incurring
them by the order and any compensation found due by the court to such a person. In a
worldwide injunction there are, in addit ion, undertakings that the applicant will not
without permission of the court:
(a) use information obtained through the Order for the purpose of proceedings in
England or any other jurisdiction;
(b) seek to enforce the Order outside England and Wales o r seek an order of a
similar nature including Orders conferring a charge or other security against the
respondent or the respondent’s assets. Damages
16.30 Apart from arrest a court will normally require a plaintiff to give an
undertaking as to damages as a condition of awarding interim relief. 65 It will normally
be required for the grant of a freezing injunction. The undertaking contained in the form
given as an example in the CPR reads:
"If the Court later finds that this Order has caused loss to the Resp ondent and
decides that the Respondent should be compensated for that loss, the Applicant will
comply with any Order the Court may make."
The undertaking is to the court, and security to support the undertaking may be
ordered.66 It is an essential ingredient in any award that the injunction should not have
been granted. 67 Where an injunction is discharged and it is sought to enforce the
undertaking the first issue is whether or not the injunction should have been granted. The
Court of Appeal has retreated from a principle expressed in 1987 68 that the judge before
whom the application comes should rule on whether the undertaking should be enforced
and only if it is ordered that it be enforced, further order an inquiry into damag es. It now
appears acceptable that the judge may adjourn the whole matter leaving both issues to
the inquiry. Whether an order made leaves open the question of the discretion to enforce
depends on the terms of the order—but the discretion must be exercised at some stage.69
It seems clearly preferable to retain flexibility but necessary that any initial order be
clear as to that which is or is not left for decision. 70
16.31 If it is ruled that the undertaking should be enforced the judge should decide
whether the immediate assessment of damages is appropriate and if so direct immediate
payment to the applicant. 71 If there has been a reasonable offer by the claimant the court
may release the claimant from the undertaking and replace it by an undertaking to pay
the amount offered. As a further option the court may direct an inquiry into the damages
and it may do so without conditions or put a defendant on terms. For a defendant to be
made to give security of costs for the inquiry it appears that the plaintiff would have to
show that the defendant’s application is or comes close to an abuse of process. 72
16.32 The principles of the award of damages are based on breach of a notional
contract that the plaintiff would not prevent the defendant from doing that which he was
restrained from doing. The express principles applicable to such inquiry are not fixed
beyond debate but in 1993 Waller J., after consideration of a number of authorities, held
that the claimant must show that 73:
(i) the damage or loss would not have occurred but for the grant of the injunction;
(ii)
(a) links between cause and consequence and
(b) the type of loss must have been (or ought reasonably to have been) in the
contemplation of the parties.
Something which will happen in the great majority of cases should be regarded as
having been in the contemplation of the parties.
It must be stressed that the root of the damage is the grant of the injunction and not
the commencement of the litigation.
16.33 Such an approach may be unduly favourable to a party obtaining an
injunction, for it puts the risk of unforeseen damage firmly on the (now established)
"innocent party". While this may be a principle generally appl icable in contractual
causes of action, 74 it was the successful application for the injunction initiated by a
plaintiff which created the loss. The plaintiff sought "security" for a risk and it is
arguable he should be responsible for any loss if that risk proves to have been non-
existent. Expenses
16.34 Where the injunction affects third parties, the plaintiff will be required to
indemnify the third party in respect of expenses incurred. 75 However, such an
undertaking will not always be accepted as a suffi cient safeguard against loss caused to
an innocent third party. Where the undertaking will not adequately compensate a third
party, the injunction is likely to be refused. 76 Other Proceedings
16.35 The undertakings in the form in the CPR and the Admiralty and Commercial
Court Guide77 relating to a worldwide injunction are not without the permission of the
court to use information gained through the order for other proceedings or to enforce the
order outside England. Control over the proceedings and the information given is
thereby retained by the English court, the sanctions being necessarily focused on the
English proceedings. Whether there will be such oppression is a matter of assessment of
the circumstances. Case to Be Made by the Applicant/Claimant
16.36 The application may be made without notice either before or after the issue
of a claim form. It is made to a Commercial Court judge on the basis of a draft order, an
application notice and affidavit evidence in support. 78 The notice and evidence must
either be provided with the application or be filed on the same or next working day or
as ordered by the Court. Where practicable the papers should be lodged with the Court
at least two hours before the hearing. The grant of an injunction should be in the form set
out in the Admiralty and Commercial Court Guide Appendix 5 79 unless the judge
considers there is a good reason for a different form. The cont ents of the affidavit will
necessarily reflect the case to be made. There is a duty on the claimant to consider
carefully at the initial stage all aspects of the claim and the appropriate order.
16.37 The obligation of the plaintiff on an application without notice are 80:
(i) to show a good arguable case—"it appears likely that the plaintiff will recover
judgment against the defendant"; 81
(ii) to identify assets believed to exist;
(iii) to give grounds for believing that there is a risk of dissipation of assets (and
likely default) before satisfaction of the judgment or arbitral award;
(iv) to make full and frank disclosure of all material matters in his knowledge.
16.38 The advice given in 1982 in Z v. A Ltd82 by Kerr L.J. remains relevant.
"It follows that in my view it should be accepted that at that stage it is the duty of
the plaintiff and of his legal advisers to do the following:
(i) To consider carefully whether an application for a Mareva injunction is
justified, in the sense of being reasonably necessary in the particular case in order to
achieve the objectives for which this procedure has been designed.
(ii) If so, to consider very carefully what should be the extent of the injunction in
order to safeguard the plaintiff’s prima facie claim against a real risk of the defendant
deliberately taking steps to avoid execution on a judgment which the plaintiff is lik ely to
obtain.
(iii) On the foregoing basis, in what way and to what extent the injunction should
apply to assets of the defendant within the jurisdiction. 83
(iv)To the extent to which the assets are known or suspected to exist, these should
be identified even if their value is unknown; and if it is known or suspected that they are
in the hands of third parties, in particular banks, everything should be done to define
their location to the greatest possible extent. Thus, to take the example of bank acc ounts,
the plaintiff should make every effort to try to indicate (a) which bank or banks hold the
accounts in questions, (b) at which branches, and (c) if possible, under what numbers.
(v) The plaintiff should consider how soon and in what manner the def endant can
be served as expeditiously as possible, both with the writ (if this has not already been
served) and the injunction if it is granted, and he should generally give an undertaking
about service on the defendant as part of the order. Further, the p laintiff should consider
on what third parties it is meanwhile intended, and reasonably necessary, to serve a
copy of the injunction.
(vi)All the foregoing matters should be fully and frankly dealt with in an affidavit
supporting the ex parte application or, if it is urgent, in a draft affidavit coupled with an
undertaking to swear and file this forthwith."
The grant of the injunction remains discretionary (i.e. whether its grant is "just and
convenient") and even if these requirements are apparently sat isfied an injunction may
be refused if the plaintiff declines or is unable to give an undertaking as to damages or
provide supporting security ( see supra) or on balance the risk of dissipation is
exceeded by the harm the injunction would do to the defendant 84 or to third parties (see
infra). Applicant’s duty of disclosure
16.39 The duty of disclosure is an application of the duty relating to interim
remedies generally (see Chapter 14). It is a fundamental principle and can of itself be a
ground for discharging the injunction. However, whether any failure to disclose should
lead to a discharge is a matter for the court in weighing the significance of the non -
disclosure in the context of the injunction. 85 So all material facts must be disclosed,
materiality being for the court. 86 Failure to appreciate the relevance of facts that were
known could be a ground for discharge. 87 Reconsideration of injunction
16.40 On granting of the injunction without notice where a return date for
reconsideration is set the applicant undertakes to inform the respondent of it. 88 This
provides an opportunity for a hearing inter partes and re-examination of the various
aspects of the grounds of grant and circumstances since the grant. Among such
circumstances relevant to continuation of the injunction are delay in issuing substantive
proceedings89 or pursuing the action, 90 or change in any material circumstances which if
existing at the date of application would have to have been disclosed. 91 If the injunction
granted without notice is discharged because, for example, of failure to make disclosure
the court may simply discharge the injunction or (apparently) continue the injunction
leaving the defendant to damages after the trial or discharge the injunction and grant a
further injunction. To confine a defendant to damages for non -disclosure will leave the
defendant with possibly a quite inadequate remedy. Which option is taken w ill depend
on weighing all the factors relevant at the inter partes stage.92 Discharge through
provision of security
16.41 In the form in the Rules and Guide there is a clause for the order to cease to
have effect on the respondent by provision of security of a specified amount. Risk of
Dissipation of Assets and Likely Default
16.42 The injunction will be granted only if the risk of the disappearance of the
asset is evident to the court. So, in Establissement Esefka International Anstalt v.
Central Bank of Nigeria,93 the Court of Appeal refused to sanction an injunction
because no such risk had been established. In Barclay Johnson v. Yuill94 Sir Robert
Megarry V.C. stressed not only the need for proof of risk but that of likely default, while
pointing out that danger of default may be inferred from the risk itself. In Z Ltd v. A Kerr
L.J. expressed the view that the granting of Mareva injunctions as a matter of course to
give the plaintiff security for any judgment where there was no real danger of
dissipation of assets was an abuse of powers. 95 There is no right to protection from
insolvency rather than dissipation of assets. 96 In The Niedersachsen 97 the Court of
Appeal stressed that the test for the exercise of the Mareva jurisdiction was whether a
refusal of the injunction "would involve a real risk that a judgment or award in favour of
the plaintiff would remain unsatisfied". Permitted use of assets
16.43 As the purpose of the injunction is simply to make assets available for any
judgment which may be obtained, it cannot be allowed to confer priority on the person
obtaining it over other creditors, and it should not be used so as to force other creditors
to proceed to judgment "with consequent loss of credit and commercial standing "98 as
regards the person against whom the injunction is granted.
16.44 In the form given as a guide there are usual provisions for living expenses,
dealing with and disposing of assets in the ordinary course of business and legal advice
and representation.99 In particular, assets within the scope of the injunction may be used
to honour rights of set off and banking facilities granted prior to the injunction so as to
meet accrued debts and to "carry on business in the ordinary way". 100 The question of
permitting the use of assets to allow a defendant to carry on his life and his business and
to defend against the claim is a matter of balance between oppression bringing cessation
of trading and the risk of an unsatisfied judgment. It often arises in the conte xt of
variation, where the defendant seeks amendment of a widely drafted order —but the
variation is necessarily based on principles applicable initially.
16.45 There is no inflexible requirement that a defendant seeking a limitation so as
to pay debts must satisfy the court that no other assets are available, 101 although the
obligation to make full disclosure cannot be avoided through the application being made
by the creditor.102 Further, a bank seeking to be allowed to exercise rights of set off in
connection with facilities granted to the defendant before being notified of the injunction
is not obliged to disclose the state of the defendant’s account or state whether the
defendant has other assets. To do so would be to go against the poli cy of the freezing
injunction through interference with contractual rights between a third party and the
defendant.103
16.46 At the heart of any plea to permit the use of funds which increases the risk of
an unsatisfied judgment lies good faith, the existe nce of other assets and the
establishment of the need for the funds to be used. 104 In 1990 in The Coral Rose the
Court of Appeal refused to vary an injunction to allow a wholly owned subsidiary
corporation (Avalon) to repay a debt due to the "owning" corporation (Marc Rich and
Co. AG). Marc Rich had provided funds for Avalon to purchase a ship. The substantive
action was by the vendor of the ship for asserted breach of contract of sale by Avalon.
In refusing the variation the Court of Appeal looked behind (as distinct from "piercing")
the corporate veil105—it should do so thought Neill L.J. when considering the scope of
injunctive relief. All the circumstances of the case and the debt should be ta ken into
account. It was not, according to Staughton L.J., a case of carrying on business in the
normal way but a desire to use assets caught by the injunction "merely to evade its
underlying purpose". Even if there was no such purpose it was proper to con sider the
nature of the debt—in this case the repayment of loan capital which would normally not
have been demanded by Marc Rich until Avalon could pay.
16.47 To ensure that assets are preserved to enforce orders of the court there is
jurisdiction to make a freezing order against a co-defendant against whom there is no
direct cause of action, if the Court is satisfied that assets to which a defendant is
beneficially entitled are in possession or control of the co -defendant. Such assets need
not be specifically identified and where appropriate an order may be made up to the
maximum of such assets.106
16.48 That approach underlies a further extension to third parties. So it has been
held that where there is a substantive right against A and that right can be exercised
against B the latter is ancillary to or dependent on the substantive right. So a freezing
order may in appropriate circumstances be made in relation to the assets of B. 107 4.
Ancillary Orders in Aid of the Injunction
16.49 It was established in the early days of development that the High Court has
power to make all ancillary orders "as appears to th e court to be just and convenient to
ensure that the exercise of the Mareva jurisdiction is effective to achieve its purpose",
and to that end order discovery and interrogatories and delivery up of chattels. 108 Now
that the freezing injunction is specified in the rules as an interim remedy the rights and
duties connected with disclosure of documents and evidence in any claim will apply. 109
Further it may be matched by any other specified interim remedy (such as sale of
property or disclosure of documents b efore a claim is made).
16.50 Prior to the Civil Procedure Rules it had been stressed that any ancillary
order must be to support the grant of the freezing injunction and not some other order, 110
and that must remain so and should not be used to overcome t he obligations as a plaintiff
to establish grounds for the granting of the injunction. 111 The court may appoint a
receiver of foreign assets in support of the injunction. To prevent a breach of the
injunction or aid in its enforcement the court may also or der transfer of the assets from
one account to another or even to one country from another. A defendant may be
restrained by injunction from leaving the country. Order for disclosure of assets
16.51 It is specifically provided as a separate interim remedy that the court may
grant an order, that information be provided by a party as to relevant property or assets
(including location) which are or may be the subject of an application for the
injunction. 112 That does not create a free standing jurisdiction to order disclosure
"which may in some remote sense be relevant to some possible application" for an
injunction. 113 It cannot be used to fish for information to enable an injunction to be
sought—it must be at least likely there will be an application. 114
16.52 However, independently of any freezing injunction once there is a judgment
or arbitral award there may be an order for disclosure of assets within and outside the
jurisdiction—so a post judgment or post award order may include an injunction
restricted to assets within the jurisdiction and a disclosure order in respect of
worldwide assets. 115 An order of disclosure may be made against a third party who has
"become mixed up" in arrangements to defeat the injunction. 116 5. Effect of the
Injunction In Relation to the Defendant
16.53 As has been stressed, the injunction is directed at the defendant and is an
order in personam. It is not an attachment of the assets to which it relates; nor does the
obtaining of it provide a ground for addition of the person who obtains it as a party to
the action. An act in breach will render the defendant liable for contempt of court, with
the consequential sanctions of being barred from defending the substantive action, of a
fine, sequestration or seizure of assets117 and, in the case of an individual defendant or
directors of a corporate defendant, imprisonment. In Relation to Third Parties
16.54 A major problem in relation to the granting of freezing injunctions is that they
are often granted in respect of assets owned by the defendant but in the possession or
under the control of others. These parties may be of two distinct types. First, the asset
may be in the hands of another who holds it (loosely speaking) either on behalf of or as
due to the defendant. So a bank or an insurance broker may have funds due to the
defendant. Secondly, a third party may have control of the defendant’s assets as part of a
contract with the defendant under which he is to deal with them in some way. So a
shipowner may have the defendant’s cargo on board his ship.
16.55 It is clear that, whatever the relationship with the defendant, a third party
who knowingly acts contrary to an injunction directed at the defendant is liable to a
finding of contempt of court. The injunction, therefore, imposes a considerable burden
on those who have little connection with the dispute and no responsibility for its
existence. In Z Ltd v. A and The Theotokos118 the court was concerned particularly with
the problem of banks where the bank was not a defendant. In Z Ltd v. A the Court of
Appeal stressed the need for precise drafting of the order so that a bank could identify
the assets subject to the order and would know the extent of its obligations. 119 The order
should not encompass assets in respect of which the bank had obligations to others
unless clearly stated.120 So set-off rights pursuant to contractual relationships or security
interests in tangible assets predating notification of the injunction a re not affected by the
injunction.121 The "knowledge" required for breach
16.56 In Z Ltd v. A Eveleigh L.J. examined in some detail the basis of the liability
of third parties for contempt of court —it being a knowing interference "with the
administration of justice by causing the order of the court to be thwarted". A
prerequisite for liability, said Eveleigh L.J., was knowledge in the third party that "what
he is doing is a breach of the terms of that injunction". In the case of a corporatio n it is
necessary to show that an employee has knowingly acted in breach —liability would not
necessarily follow if a breach occurred through an act of one employee who did not
know of the order although another did, nor unless the bank was indifferent "to such a
degree that was contumacious" should carelessness or recklessness lead to liability.
However, a bank may be in contempt through the failure of officers to carry out the
necessary internal steps and ensure such internal communication as was necessary to
comply with the injunction—where the failure was due to intent to flout the order or a
high degree of negligence. 122 Limitation on restrictions of action of third party by
injunction
16.57 In Z Ltd v. A the Court of Appeal agreed that the freezing of a defendant’s
bank account did not affect obligations undertaken prior to the making of the order —
such as letters of credit, bills of exchange, 123 to honour transactions backed by credit
cards. 124 In The Theotokos125 Lloyd J. in effect applied this principle to set -off
arrangements—now reflected in the standard form (see fn. 111). Effect of injunction on
third party as grounds for refusal to grant
16.58 Where an injunction imposes a burde n on a third party in the sense that an
obligation is imposed or action is required, an indemnity for expenses may meet any
reasonable claim based on inconvenience. Where, however, it would seriously affect
the carrying on of business by a third party the balance must tilt against the granting of
the injunction. In 1982 in The Eleftherios126 the Court of Appeal had some harsh words to
say in respect of the granting of a Mareva injunction restraining the removal from the
jurisdiction of cargo loaded on board the ship named. The ship was on voyage charter
and the evidence was that if she did not sail on the day the case was heard she would be
delayed a week with consequence not only on trade but on the crew’s private
arrangements. Kerr L.J. contrasted this type of case —where the granting of the
injunction would interfere with a contract between the defendant and the third party —
with that where assets of the defendant are held incidentally to the general business of
the third party.127 In the former case, the rights of the third party must always prevail and a
plaintiff cannot "merely to secure a benefit for himself coerce the third party into a
serious risk of litigation or arbitration with the defendant". The plaintiff coul d not obtain
the advantage of the order at the expense of the third party’s business rights simply by
proffering an indemnity. The other two members of the court expressed similar
sentiments. The case provides a salutary balance to the enthusiasm for a rem edy which
in some cases may be too easily obtained in the light of its potentially drastic
consequences.128 6. The Form of the Order—the “Maximum Sum” Approach
16.59 In 1982 in Z Ltd v. A129 the normal practice of making a maximum sum order
(whereby the defendant’s assets are frozen up to a maximum amount) was approved.
However, in cases where a bank account is a target, it was accepted that such an order
was unworkable so far as the bank was concerned as it would not know of other assets
the defendant had. It was suggested, therefore, that the order should make different
provisions in relation to his assets generally and those known to be in the hands of third
parties. So, in relation to a particular bank account, the injunction should prohib it
dealing in it except to the extent it exceeded the general maximum. 130 7. Comparison of
Arrest and the Freezing Injunction as Provisional Remedies—A Summary
16.60
(1) Arrest lies only as part of an action in rem and, subject to stay for arbitration or
foreign proceedings, is available only as ancillary to an action in an English court; a
freezing injunction is a remedy in personam, and is available as ancillary to an action
in personam in English or foreign proceedings when the defendant is within the
jurisdiction of the English courts and there is jurisdiction in respect of the assets.
(2) Arrest is available in support of arbitral proceedings only indirectly after issue
of an in rem claim form; a freezing injunction is available directly in arbitral
proceedings.
(3) Only one ship (and/or one ship’s cargo or appropriate freight) may be arrested
for each claim: a freezing injunction has no restriction as to the number of assets save
the amount of the claim.
(4) The use of an asset under arrest for any purpose is inconsistent with custody of
the Marshal; the use of assets subject to a freezing injunction will be permitted contrary
to the injunction to allow for the carrying on of business or personal life.
(5) Arrest initially depends on the issue of a warrant by a court to which an
applicant is entitled on compliance with procedural requirements; a freezing injunction
depends on the exercise of judicial discretion.
(6)Arrest is available simply on assertion of a claim in rem through issue of an in
rem claim form; a freezing injunction may be obtained without notice but requires
establishment of a good arguable case and of the risk of the defendant failing to satisfy a
judgment or award.
(7) No security or undertaking is required from the plaintiff on initial arrest; the
granting of a freezing injunction will normally require an undertaking in damages.
(8)An arrested ship, cargo or freight is in the custody of the Ad miralty Marshal; a
freezing injunction does not affect custody or possession.
(9) An arrest follows an issue of an in rem claim form which creates a preferred
claim and enables the claim to be asserted against purchasers; the freezing injunction
creates no proprietary interest in any asset.
(10) Third parties may intervene in in rem proceedings and may protect their
interests by a caveat; there seems less right to intervene in proceedings for a freezing
injunction except through substantive process star ted on that party’s behalf.
(11) For arrest, a solicitor’s undertaking in respect of the Admiralty Marshal’s
expenses and costs is required; for a freezing injunction expenses and costs may depend
on the plaintiff’s undertaking.
(12) The effect on third parties of arrest (as, for example, arrest of a ship on
owners of cargo shipped in it) is irrelevant to the obtaining of the warrant of arrest; the
effect on third parties of a freezing injunction may be a critical factor in the discretion to
grant the injunction.
(13) Procedural distinctions reflecting the well -developed remedy of arrest
include the need for an affidavit to be filed (for the injunction an undertaking to file may
be sufficient), proceedings to be started (in relation to freez ing injunctions again an
undertaking to start may suffice), and subject to any practice direction the need for the
registry to be open (freezing injunctions depend on the availability of a judge).
(14) Arrest may serve the function both of "security" for the claim and a
jurisdiction ground for the substantive action —apart from possible arguments as to
submission the grant of a freezing injunction does not found any substantive jurisdiction.
(15) It would seem that a court may be more ready to pierce the corporate veil in
the context of a freezing injunction than arrest.
(16) Arrest is available only for property within England; the freezing injunction
may relate to property within or outside England.
(17) Jurisdiction in personam over a defendant is irrelevant to an in rem claim and
hence arrest; in regard to the freezing injunction the defendant must be amenable to
jurisdiction in personam.
(18) It appears that arrest is available to a judgment cr editor; it is established that
a freezing injunction may be granted to support a judgment.
1. Mustill J. in Third Chandris Shipping Corpn v. Unimarine SA [1979] Q.B. 645,
at p. 653.
2. See e.g. The Niedersachsen [1983] 2 Lloyd’s Rep. 600, at p. 617. The Supreme
Court Act 1981, s.37(3), is to be construed widely so as to encompass dissipation
within the jurisdiction as well as removal outside (see Z Ltd v. A [1982] Q.B. 558).
Derby v. Weldon (No. 2) (per Lord Donaldson M.R.) (fn. 3).
3. Derby v. Weldon (No. 2) [1989] 1 All E.R. 1002 at p. 1009 per Lord Donaldson
M.R. Such an injunction may be granted only by a judge of the High Court or nominated
circuit judges (2 PD (Allocation of Cases to Levels of Judiciary, para. 2.1; County
Court Remedies Regulations 1991, reg. 3(2)).
4. Civil Jurisdiction and Judgments Act 1982, s.25 as extended by SI 1997/302 and
in Scotland SI 1997/2780. As to this development see infra.
5. It is accepted that it may be granted subsequent to a ju dgment. See Orwell Steel
Erection Ltd v. Asphalt and Tarmac (UK) Ltd [1984] 1 W.L.R. 1097; Mercantile
Group (Europe) AG v. Aiyela [1994] 1 All E.R. 110. See also CPR 25.1(f)(g), 25.2.
6. See SCF Finance Co. Ltd v. Masri [1985] 2 All E.R. 747; Allied Arab Bank v.
Hajjar (1988) The Times, 18 January. The issue might be tried prior to or after the main
action—the criteria being that applicable to the grant of injunctions —"just and
convenient".
7. See the example annexed to CPR 25 PD 6. As to the general form of the
injunction see also Admiralty and Commercial Court Guide App. 5. As to entitlement to
refuse to give information see fn. 8.
8. CPR 25.1(1)(g). Information may be refused if it might be relied on by the
prosecution in establishing guilt or in deciding whether to prosecute (see Den Norske
Bank ASA v. Antonatos [1998] 3 All E.R. 74).
9. See e.g. in the Rasu Maritime SA case [1978] Q.B. 644, at pp. 657 –658
(disapproved in Cretanor Maritime Co. Ltd v. Irish Marine Management Ltd [1978] 1
Lloyd’s Rep. 425, and Z Ltd v. A [1982] Q.B. 558, at p. 573).
10. This follows from the concept of an injunction and was confirmed in Cretanor
Maritime Co. Ltd v. Irish Marine Management Ltd [1978] 1 Lloyd’s Rep. 425 and The
Angel Bell [1980] 1 Lloyd’s Rep. 632. See also Bekhor & Co. v. Bilton [1981] 1
Lloyd’s Rep. 491 in which the court stressed that the purpose of the injunction was not
to provide security for the claim; Sanders Lead Co. Inc. v. Entores Metal Brokers Ltd
[1984] 1 Lloyd’s Rep. 276 (injunction not of itself a basis for becoming a party to an
action concerning assets to which it relates); Mercedes Benz A.G. v. Leiduck [1995] 2
Lloyd’s Rep. 417 P.C. (Lord Nicholls dissenting). In order to create a security ri ght in a
fund there must be not merely a restriction on disposal but an obligation to pay a debt
out of the fund Flightline Ltd v. Edwards [2003] 1 W.L.R. 1200.
11. The provision in the standard order that it is to cease to have effect if the
Respondent "provides security" means solely security against dissipation of assets
Technocrats International Inc v. Fredic Ltd [2004] EWHC 2674.
12. See e.g. PCW (Underwriting Agencies) Ltd v. Dixon [1983] 2 All E.R. 158
(defendant entitled to reasonable living expenses consistent with his standard of living) —
order varied by consent [1983] 2 All E.R. 697. Consistently with the relationship of the
injunction to the claim the use of such assets does not remove them from any claim which
might succeed if they remain liable to execution under general principles (as e.g. a
constructive trust). See United Mizrahi Bank Ltd v. Doherty [1998] 2 All E.R. 230.
14. The issue becomes more acute in the context of the definition of arrest in the
Arrest Convention 1999—"arrest" including "any restriction on a removal of a ship by
order of a Court" (Art. 1(2)).
15. CPR 25.1( f)(g).
16. CPR 25.2, but whether it will lie depends on the rules relevant to the remedy.
17. CPR 25.2, 25.3, 23.9, 23.10 (and see Chapter 14). It may be granted prior to a
claim only if urgent or justice requires (25.2(2)). Direct ions may be given that a claim
be commenced (25.2(3)).
18. The Niedersachsen [1983] 2 Lloyd’s Rep. 600. As to practice see generally
Ough and Flenley, The Mareva Injunction and Anton Piller Order (2nd edn, 1993).
19. See e.g. Biguzzi v. Rank Leisure Plc [1999] 4 All E.R. 934 and Chapter 14.
20. It is therefore now no longer arguable that the assertion of jurisdiction in
respect of a Mareva injunction is assertion of jurisdiction over the substantive matter:
The Sargasso [1994] 2 Lloyd’s Rep. 6. See also Chapter 14.
21. Arbitration Act 1996, ss.2(3)(b), 44. As to criteria for exercising the
jurisdiction see Chapter 14. There is also jurisdiction under the Supreme Court Act
1981, s.37 (Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993]
A.C. 334 (H.L.)).
22. Although an injunction may be against a non -party in support of an order under
the Supreme Court Act 1981, s.34 in relation to disclosure of documents or inspection
of property (as to which see CPR 25.1(j) and Chapter 14) and there may be an
injunction restraining a party from pursuing foreign proceedings (as to which see
Chapter 25).
23. The power to grant in respect of foreign proceedings stems from the Civil
Jurisdiction and Judgments Act 1982, s.25 as extended to all proceedings and all states
by SI 1997/302. The provisions together with RSC Ord. 11, r. 8A (now see 6.20(4))
(see 9.100) rid the law of the restrictions and difficulties stemming from the decision in
The Siskina that for jurisdiction to exist in respect of an interim injunction claimants
must have an English cause of action. Lacking that there was no power to serve a
summons out of England under RSC Ord. 11, r. 1(1)(b). But there still remains the
question whether the categorisation of The Siskina was justified (see 14.19).
24. See Chapter 14.
25. As e.g. in the case of title to foreign law and some aspects of procedure. See
Mackinnon v. Donaldson Lufkin [1986] 1 All E.R. 653 and Chapter 12.
26. CPR 6.20(2), (4). As to service out of a claim form for an interim remedy in
support of arbitral proceedings see 62.5 and Chapter 13.
27. 6.19. See Haiti v. Duvalier [1989] 1 All E.R. 456 (C.A.).
28. [1972] 2 Q.B. 543.
29. The relevant provision appears in a somewhat truncated form in the Supreme
Court Act 1981, s.49.
30. [1980] LMLN 15.
31. See The Indian Grace (No. 2) [1997] 1 Lloyd’s Rep. 1 and Chapter 10. As to
the merger (or not) of a claim in rem in a judgment in personam see Chapter 27.
32. As to which see Lord Nicholls (dissenting) in Mercedes Benz AG v. Leiduck
(fn. 10). For comment on the desirability of jurisdiction to grant it in relation to a
necessary party before the primary party is served with a claim form see The Xing Su
Hai [1995] 2 Lloyd’s Rep. 11.
33. The Vera Cruz I [1992] 1 Lloyd’s Rep. 353 (overruling A v. B [1989] 2
Lloyd’s Rep. 423); Zucker v. Tyndall Holdings [1992] 1 W.L.R. 1127.
34. "to prevent the Court’s action being stultified". See Papamichael v. National
Westminster Bank Plc [2002] 1 Lloyd’s Rep. 332 (applying the principles to a Part 20
claimant) and cases cited.
35. The Agrebele [1979] 2 Lloyd’s Rep. 117.
36. Barclay-Johnson v. Yuill [1980] 1 W.L.R. 1259; MBPXL Corpn v.
International Banking Corpn [1975] Court of Appeal Transcript 411, cited in Third
Chandris Shipping Corpn v. Unimarine SA [1979] Q.B. 645, at pp. 649 –653 (per
Mustill J.).
37. Prince Abdul Rahman v. Abu-Taha [1980] 2 Lloyd’s Rep. 565. See also
Chartered Bank v. Daklouche [1980] 1 All E.R. 205.
38. See [1980] 2 Lloyd’s Rep. at p. 568.
39. An injunction sought preventing disposal of property in support of a
proprietary claim is not therefore without more a freezing injunction but no doubt would
now be accompanied by an application for the latter.
40. See e.g. TDK Distributors (UK) Ltd v. Videochoice Ltd [1985] 3 All E.R. 345.
41. See e.g. Prekookeanska Plovidba v. LNT Lines Spl [1988] 3 All E.R. 897. As
to transactions in relation to the assets within the scope of the injunction but unaffected
by it see infra.
42. See e.g. Z Ltd v. A [1982] Q.B. 558.
43. See e.g. The Angel Bell [1980] 1 Lloyd’s Rep. 632.
44. The Rasu Maritima case [1978] Q.B. 644.
45. The Rena K [1979] Q.B. 377, [1978] 1 Lloyd’s Rep. 545. It may also be used
in relation to a ship released from arrest because of the restrictions on the court’s
jurisdiction in rem (ibid.). It is irrelevant to the granting of the injunction that the ship
will not be in the custody of the Admiralty Marshal ( ibid.).
46. The Marie Leonhardt [1981] 2 Lloyd’s Rep. 458; but the damage to the
shipowner (or third party) may be such as to mean the injunction would not be granted,
see e.g. The Eleftherios [1982] 1 Lloyd’s Rep. 351 (as to which see infra). It appears
that an injunction has been granted in respect of time charterers’ bunkers on the
application of port agents claiming for disbursements (see [1981] LMLN 37).
47. [1986] 2 All E.R. 970. For other decisions see Derby v. Weldon (No. 2)
[1989] 1 All E.R. 1002. As to disclosure in support of a Mareva see infra.
48. [1989] 1 All E.R. 1002 treating as binding Derby v. Weldon (No. 1) [1989] 1
All E.R. 469—the court in that case in effect simply taking a different approach to
Ashtiani v. Kashi—“the jurisdiction is a developing one” .
49. Ibid. The amount at stake in the case was a sum of about £25m. An order
confined to assets within the jurisdiction may lead to uncertainties as to the need to
disclose other assets if there is a claim to a ne ed to maintain trading activities.
50. See ibid., at p. 1009.
51. Derby v. Weldon (No. 6) [1990] 3 All E.R. 263. The power was said to exist
where the assets had been transferred initially to prevent the English court exercising
jurisdiction over them or if the connection with the latter jurisdiction was the control of
investments—but this seems more a matter going to the exercise of the power.
52. Just as the plea that a foreign court is the appropriate forum. For a rejection of
that plea in respect of foreign bankruptcy proceedings see Felixstowe Dock & Railway
Co. and others v. United States Lines Inc. [1988] 2 All E.R. 77, [1987] 2 Lloyd’s Rep.
76.
53. Credit Suisse Fides Trust SA v. Cuoghi [1997] 3 All E.R. 724 at p. 734 (pe r
Lord Bingham C.J.).
54. Under the Brussels Convention (and no doubt also under the Lugano
Convention) the court having jurisdiction over the substantive claim has jurisdiction
over interim relief (The Van Uden case) fn. 59. See Chapter 14.
55. Rosseel NV v. Oriental Commercial and Shipping (UK) Ltd [1991] 1 All E.R.
545.
56. See Example of form for worldwide injunction, CPR 25 PD Annex. Admiralty
and Commercial Guide App. 5. As to banks with overseas branches see Guide F 15.10,
15.11.10, 19.11.
57. [1997] 3 All E.R. 724 at p. 735—a case under s.25 as it applied to member
States of the Lugano Convention. As to the risks of overlapping orders see Ryan v.
Friction Dynamics (2000) The Times, 14 June.
58. See Rosseel NV v. Oriental Shipping (UK) Ltd [1990] 1 All E.R. 545 (C.A.)
followed in S and T Bautrading v. Nordling [1997] 3 All E.R. 718 (C.A.).
59. Van Uden Maritim BV v. Kommanditsgesellschaft in Firma Deco -Line C
391/95 [1999] I.L.Pr. 73. See Chapter 14. A like but perhaps narrower view is reflected
in criteria set out by the European Court for the jurisdiction over provisional measures
(under Art. 24) when a national court has no jurisdiction over thesubstantive claim. The
jurisdiction exists in regard to assets only if there is “a real connecting link” between
the assets and the territory of the court.
60. See Refco Inc. v. Eastern Trading Co. [1999] 1 Lloyd’s Rep. 159 taking into
account comments of a District Court in Illinois hearing the s ubstantive claim as to the
possibility of interim relief being granted by an English court. A freezing injunction is
not within the powers of US federal courts. See Grupo Mexicano Desarollo v. Alliance
Bond Fund Inc. 527 U.S. 308 (1999) (US Supreme Court —5–4 majority).
61. [2004] 1 W.L.R. 113.
62. So in the Motorola case the fact that there was no power in the foreign (US)
court to grant a freezing injunction did not mean of itself that an English court should not
do so (see para. 119).
63. See 14. The presence in England of solicitors with access to the assets was
held to be sufficient in the unusual case” of Haiti v. Duvalier in which the State was
seeking to recover assets looted by the former head of state.
64. See CPR 25 PD Annex.
65. For a useful summary of the applicable principles see Cheltenham and
Gloucester BS v. Ricketts [1994] 3 All E.R. 276 at pp. 28 1–282 (per Neill L.J.)—the
summary must be read subject to the power to adjourn the issue of whether an
undertaking should be enforced (see infra). Where the Crown or a public authority is
acting for the public at large that fact will be taken into account in considering whether
to order an undertaking. See e.g. Securities and Investments Board v. Lloyd-Wright
[1993] 4 All E.R. 210; Customs and Excise Commissioners v. Anchor Foods Ltd
[1993] 3 All E.R. 268.
66. See supra. But not if the injunction is discharged: The Mito [1987] 2 Lloyd’s
Rep. 197—the fortification is essentially a condition of the gra nt of injunction to which
the plaintiff could agree or disqualify himself from the injunction, and to grant it after
discharge is not to fortify the undertaking but to grant security for the claim to the
defendant (ibid.). Undertakings take effect as injunctions, Group Torra, SA v. Al Sabah
[2001] EWCA 1370.
67. See Cornhill Insurance plc v. Barclay [1992] LMLN 340—so a compromise
of an action in respect of which the injunction was ordered precluded any assertion of
the propriety of the issue of the injunction and hence any inquiry into damages (ibid.).
68. See Norwest Holst Civil Engineering Ltd v. Polysuis Ltd (1987) The Times,
28 July (commenting on Barclays Bank v. Rosenberg [1985] LMLN 147); approved in
Cheltenham and Gloucester BS v. Ricketts [1994] 3 All E.R. 276.
69. See Zygal Dynamics plc v. McNulty [1989] Court of Appeal Transcript 571,
the principles discussed and followed in Balkanbank v. Taher [1995] 2 All E.R. 904.
70. See Balkanbank v. Taher (fn. 69).
71. See Practice Direction of 2 8 July, para. (4) [1994] 4 All E.R. 52 —for
discussion of the Direction as a whole see infra.
72. See C.T. Bowring and Co. (Insurance) Ltd v. Corsi and Partners [1994] 2
Lloyd’s Rep. 567 (C.A.). As to security of costs see Chapter 14.
73. Tharros Shipping Co. v. Bias Shipping Ltd [1994] 1 Lloyd’s Rep. 577.
74. In Cheltenham and Gloucester BS v. Ricketts [1993] 4 All E.R. 276, Neill
L.J. expressed the view that "it seems" that damages are to be awarded on the same
basis as breach of contract (at p. 282).
75. Ibid. Searose Ltd v. Seatrain (UK) Ltd [1981] 1 Lloyd’s Rep. 556; The Marie
Leonhardt [1981] 2 Lloyd’s Rep. 458; Z Ltd v. A [1982] Q.B. 558.
76. See The Eleftherios [1982] 1 Lloyd’s Rep. 351; The Pitsa T [1987] 2 Lloyd’s
Rep. 404 and infra—Effect on third parties.
77. CPR 25 PD Annex, Guide App. 5.
78. See CPR Part 25 Practice Direction.
79. As to banks and other third parties see also the Guide F15.9, 15.10.
80. As to the importance of fulfilling these obligations see Thane Investments Ltd
v. Tomlinson [2003] EWCA Civ 1272.
81. Z v. A Ltd [1982] Q.B. 558 at pp. 588–589.
82. [1982] Q.B. 558, at p. 585. For an example of rejection because of failure to
show sufficient prospects of success, see The Tatiangela [1980] 2 Lloyd’s Rep. 193. It
was in 1977 in the Rasu Maritima case [1978] Q.B. 644 that the move was made to
“the arguable case” rather than attaching the injunction to entitlement to a summary
judgment.
83. Adapted now as necessary to any application for a worldwide freezing
injunction. Under the CPR there is jurisdiction to entertain a further application after
refusal although there was no appeal from the refusal. Whether or not it is entertained is
a matter of discretion. Laemthong International Lines Co. Ltd v. Artis [2005] 1
Lloyd’s Rep. 100.
84. See e.g. Polly Peck International Plc v. Asil Nadir [1992] 2 Lloyd’s Rep. 238
(balancing the type of cause of action against the harm); The Pitsa T [1987] 2 Lloyd’s
Rep. 404 (balancing the financial loss of third party shipowners and the plaintiffs).
85. Fitzgerald v. Lloyd Williams [1996] I.L.Pr. 275 (C.A.).
86. See The Giovanna [1999] 1 Lloyd’s Rep. 867.
87. See e.g. Czarnikow-Rionda Sugar Trading Inc. v. Standard Bank London Ltd
[1999] 2 Lloyd’s Rep. 187.
88. In the Commercial Court a return date will be set unless the judge otherwise
orders. See Commercial Court Guide F 15.8(a).
89. Siporex Trade SA v. Comdel Commodities Ltd [1986] 2 Lloyd’s Rep. 428.
90. Lloyd’s Bowmaker Ltd v. Britannia Arrow Holdings plc [1988] 1 W.L.R.
1337.
91. See Commercial Bank of the Near East plc v. ABC and D [1989] 2 Lloyd’s
Rep. 319.
92. See e.g. The Bowmaker case (fn. 90); Ali Fahd Shoboksha Group v. Moneim
(1989) The Times, 8 March.
93. [1979] 1 Lloyd’s Rep. 445. See also Third Chandris Shipping Corpn v.
Unimarine SA [1979] Q.B. 645, at pp. 67 1–672 (per Lawton L.J.); Z Ltd v. A [1982]
Q.B. 558, at p. 571 (per Kerr L.J.).
94. [1980] 1 W.L.R. 1259.
95. [1982] Q.B. 558, at p. 585.
96. See Refco Inc. v. Eastern Trading Co. [1999] 1 Lloyd’s Rep. 159 (C.A.).
97. [1983] 2 Lloyd’s Rep. 600.
98. The Angel Bell [1981] Q.B. 65; [1979] 2 Lloyd’s Rep. 491.
99. With a duty to inform the respondent of the source of the money.
100. See The Angel Bell (fn. 98); KS/AS Admiral Shipping v. Portlink Ferries
[1984] 2 Lloyd’s Rep. 166; Avant Petroleum Inc. v. Gatoil Overseas Inc. [1986] 2
Lloyd’s Rep. 236; Derby v. Weldon (No. 2) [1989] 1 All E.R. 1002.
101. Campbell Mussels v. Thompson (1984) Law. Soc. Gaz. 2140 "correcting", A
and B v. C (No. 2) [1981] 1 Lloyd’s Rep. 559. In The Angel Bell the only asset of the
defendants was the insurance proceeds, the subject of the injunction.
102. A v. B, X intervening [1983] 2 Lloyd’s Rep. 532.
103. The Theotokos [1983] 2 Lloyd’s Rep. 204. The court recognised the rights of
a bank in respect of preexisting rights of set -off (see infra) and rights of an intervenor
party to an agreement specifically relating to assets ca ught by a freezing injunction. Such
a provision appears in the draft form of the injunction.
104. Cala Cristal SA v. Emran Al-Borno (1994) The Times, 6 May [1994] LMLN
383. Ferris J. warned against the setting up of a series of “mini trials” as to assets
through the requirement of full disclosure of assets in order to decide if payment could
be made.
105. As a different division of the court did in The Coral Rose (No. 3) [1991] 2
Lloyd’s Rep. 374 in refusing the payment of legal fees —being satisfied that Marc Rich
would make funds available.
106. Yukong Line Ltd v. Rendsburg Investments Corpn. [2001] 2 Lloyd’s Rep.
113 (C.A.).
107. C Inc Plc v. L [2001] 2 Lloyd’s Rep. 458.
108. Bekhor & Co. v. Bilton [1981] Q.B. 923 (C.A.); Z Ltd v. A [1982] Q.B. 558,
at pp. 577–578 (Lord Denning M.R.). It seems that all three members of the court in
Bekhor thought that the power was implicit in the statutory jurisdiction to grant
injunctions. In CBS UK Ltd v. Lambert [1982] 3 All E.R. 237 (a Chambers judgment) in
July 1988 a sale of decaying assets subject to a Mareva was ordered pursuant to RSC
Ord. 29, r. 4—sale of perishable property (LMLN 229).
109. See CPR Parts 31, 32.
110. Bekhor & Co. v. Bilton [1981] Q.B. 923, at p. 942 (Ackner L.J.), p. 948
(Griffiths L.J.). In Bekhor & Co. v. Bilton the majority held that Parker J. had purported
to order discovery in aid of a Mareva injunction but had done so rather to establish
whether there had been non-compliance with an order made by the judge and had,
therefore, no jurisdiction to achieve his aims by the order made.
111. See e.g. Den Norske Bank v. Antonatos [1998] 3 All E.R. 74 at p. 80 per
Waller L.J.
112. CPR 25.1(g)—formalising a recognised practice. Such an obligation is
included in the draft form for the injunction. A party may refuse to provide information
which might be relied on to prosecute or to take the decision to prosecute ( Den Norske
Bank ASA v. Antonatos [1998] 3 All E.R. 74) even if the likely prosecution be in a
foreign country (Credit Suisse Fides Trust SA v. Cuoghi [1997] 3 All E.R. 724). In the
draft form the applicant undertakes not to use the information obtained for the purpose of
civil or criminal proceedings in any other jurisdiction.
113. But other assets may be relevant in respect of living expenses and business
activities.
114. Parker v. CS Structured Credit Fund Ltd [2003] 1 W.L.R. 1680.
115. Gidrxslme Shipping v. Tantomar-Transportes [1994] 2 Lloyd’s Rep. 392;
[1994] 4 All E.R. 507. In such circumstances given the purpose of execution of a
judgment an undertaking not to use the information for proceedings other than in England
is not appropriate—but there could and should be an order that it could be used only to
execute the judgment in respect of which it was granted.
116. Mercantile Group (Europe) AG v. Aiyela [1994] 1 All E.R. 110—a post-
judgment injunction, but applicable to pre judgment subject to the rule preventing
discovery against a person who would later be compelled to give the information (ibid.)
applying the principles of Norwich Pharmacal Co. v. Customs and Excise Cmrs [1973]
2 All E.R. 943; Bankers Trust v. Shapira [1980] 3 All E.R. 353. See now for authority
CPR 25.1(1)(j)—order for disclosure of documents against a non -party.
117. See generally Z Ltd v. A [1982] Q.B. 558; Derby v. Weldon (No. 2) [1989] 1
All E.R. 1002; Z Bank v. Di [1994] 1 Lloyd’s Rep. 656.
118. [1983] 2 Lloyd’s Rep. 204.
119. But where those obligations were clear a bank owed a duty of care to a
claimant who had obtained an order and was liable for breach if funds were removed
through lack of reasonable care (Customs and Excise Commissioner v. Barclays Bank
Plc [2005] 1 Lloyd’s Rep. 165.
120. It is stated in the standard Order that no bank need e nquire as to the
application of any money withdrawn by the person against whom the Order is made "if
the withdrawal appears to be permitted by the Order".
121. As to set off see The Theotokos (fn. 118) and now CPR 25 PD Annex para.
17. As to tangible assets see Gangway Ltd v. Caledonian Park Investment (Jersey) Ltd
[2001] 2 Lloyd’s Rep. 715.
122. Z Bank v. Di [1994] 1 Lloyd’s Rep. 656—sequestration of assets ordered.
123. Although the proceeds paid into the defendant’s account subject to the order
will be affected by the order.
124. But it may be prudent to withdraw credit facilities once the order is known
(per Kerr L.J. at p. 592). See for liability when no action was taken by a bank Z Bank v.
Di (fn. 112).
125. [1983] 2 Lloyd’s Rep. 204.
126. [1982] 1 Lloyd’s Rep. 351.
127. In The Theotokos Lloyd J. applied the principle of The Eleftherios to
contractual arrangements between a bank and the defendant on the basis that contractual
rights must prevail over the plaintiff’s desire for security. See also Sanders Lead Co.
Inc. v. Entores Metal Brokers Ltd [1984] 1 Lloyd’s Rep. 276.
128. In The Pitsa T [1987] 2 Lloyd’s Rep. 404 Hirst J. applied The Eleftherios in
weighing the potential loss of the shipowner and plaintiff voyage charterers suing time
charterers, the time charter having expired.
129. [1982] Q.B. 558.
130. Ibid., at p. 589 (Lord Denning M.R., Kerr L.J.). It seems as if Lord Denning
was more ready to accept the propriety of an order referring to all the defendant’s assets
(ibid.). The standard Order is couched in terms of a maximum sum with the
specification of particular assets including a numbered bank account ( see 25 PD Annex,
Admiralty and Commercial Court Guide). As to the duty of inquiry by a bank see fn.
119.
Part IV
Security on the Merits— The Lien Concept

We come now to the "security" aspect of maritime claims in the sense that such
claims attract an interest in an asset, enabling the claimant to enforce the claim against
that asset in priority to at least the ordinary claim for damages. Inextricably connec ted
with that aspect is the overused and ill -defined term "lien". Each maritime claim listed
in the Supreme Court Act 1981 if enforced by an action in rem is said to attract a lien
and, in a more general sense, liens are attached to claims outside those th ere listed.
Further, maritime claims may attract differing kinds of lien —based on maritime
concepts and adapted from the general legal framework. The first task therefore is to
give meaning to the word "lien" and to contrast it with other similar, but dist inct, legal
concepts.
Chapter 17
Nature and Development of Liens 1. The Nature of a “Lien”—Or What’s in a

Word?
17.1 The legal idea of a "lien" as giving some benefit to the claimant over and
above a simple legal claim for a remedy against a particular def endant is common to
both civil and common law. Its application is not. The label "lien" serves often to
conceal the varieties of benefit which flow from it as between and within different legal
systems.
17.2 For the most part, liens are not registrable and , therefore, those who may seek
to acquire interests in assets have no means of checking for the prior existence of a lien
save enquiry from the seller, mortgagor or other creditor —not always a method of
certain reliability. Further, the transferability of liens is a matter of some doubt. They
are therefore interests of prime importance and of no inconsiderable uncertainty.
17.3 The primary purpose of a "lien" is to confer a proprietary interest in an asset
as security for a judgment or a claim, the clai m itself being based on one of a number of
substantive and recognised legal relationships. As a proprietary interest, the "lien" is
enforceable against third parties. As such, it has characteristics in common with a
"mortgage" and a "charge" and (particula rly as regards the "charge") is sometimes not
distinguished from them. At the very least, loose terminology tends to confusion and at
the worst creates it. Lien and Mortgage
17.4 Just as in English land law so in sea law the lien must be compared to the
mortgage. It is said in the context of land that the distinction lies in its root —mortgage
rooted in intention and lien in implication of law. But in the context of chattels, a lien
can be and often is, rooted in contract. It is said in the context of chatte ls that the
distinction is based on the vesting of ownership. 1 In a mortgage it vests in the
mortgagee, in a lien it remains in the lienor. But a mortgage of chattels may be created
by giving the mortgagee simply a right of seizure or by a transfer only of "equitable
ownership" which leaves the legal title in the mortgagor.
17.5 It is suggested that the distinction between mortgage and lien cannot be seen in
the method of creation or in the presence or absence of intention. The mortgage and lien
are distinct in purpose and largely in nature. The mortgage is a well -established method
of financing a venture. It arises only on the intentional acts of the mortgagor and
mortgagee and rights flow from the transaction. Once into the mortgage framework the
rights and remedies follow as a necessary consequence.
17.6 It is not so with the developed lien. The common characteristic of all liens is
the purpose of providing security for a claim based on a legal transaction or situation
which is not described by the word "lien". So, a seaman to whom wages are due has a
lien—to enforce his contractual right. The lien is built on a right having its root not in
a "lien transaction" but in something which has a legal character of its own. A
"mortgage" describes the transaction a nd its remedies (it now envelops its contractual
root); a lien describes only how a right is to be enforced. It does not describe the right.
Indeed, in Admiralty, a mortgage is also a statutory lien. Lien and Charge
17.7 The word "charge" is used (at least in English law) even more loosely than
"lien". In some contexts (usually land) it means any encumbrance on a title. In its
narrower meaning it carries the meaning of security for a debt or other obligation and in
this sense it overlaps with both the lien and the mortgage. The idea of "charge" in some
instances has been developed along the lines of the development of the mortgage to
create an independent legal concept. But in other contexts similar to the lien it remains
simply a general description of a method of enforceability of a claim based on specified
substantive grounds (such as, for example, a breach of contract). And, more, a lien has
been described as resulting in a charge, indicating that a charge may be regarded as a
security interest encompassing the lien.
17.8 Certainly the lien is seen by many as usually indicating a security interest
arising by operation of law imposed on certain relationships such as is the unpaid
vendor’s lien. But just as certainly (particularly in maritime law) liens may be created
by contract and in that respect may be identical to a charge. Whether or not it is will
depend on the nature of the lien created. 2 The floating charge
17.9 A floating charge is one taken on corporate assets leaving the company free to
deal with the assets in the ordinary course of business. The charge "floats over" the
assets until, in accordance with the contract creating it, an event occurs (such as the
appointment of a receiver) which causes it to crystallise and become a charge on
specific assets.
17.10 Initially a lien was envisaged as a security interest in a tangible asset but the
courts have construed "lien" clauses in contracts in accordance with their purpose.
There is little evidence that a court would take the view that a contract to c reate a "lien"
would be noneffective because it was aimed at a security interest which apart from the
contract the law did not categorise as such. So in The Annangel Glory 3 Saville J.
construed a clause in a charterparty declaring that an owner had a lien on all subfreights
for any amounts due, as creating from the contract a floating security consisting of a right
to be exercised if sums became due. Such an approach simply underlines that in English
law "lien" of itself has little meaning save that of a security interest recognised by the
law—perhaps other than a mortgage. 2. The Development of Liens in English Law
17.11 In English law the types of lien are maritime, possessory, statutory and
equitable. Of these all but the "maritime" e xist both within and outside Admiralty. A.
Common Law, Equity and Statute
17.12 These liens are applicable in Admiralty as they are elsewhere. They
therefore apply in respect of all maritime claims. The possessory lien (or "right of
retention")
17.13 The possessory lien as a concept is rooted in judicial creativity in the
common law and was well established at the beginning of the nineteenth century. It was
based on the enforceability of a claim through retention of chattels in which the person
against whom the claim was to be made had an interest. In many systems such a right is
encompassed in a "right of retention" without applying the label "lien". In English law
the right of retention is the possessory lien. It is both a remedy in that it is a metho d of
asserting a claim based on grounds entirely independent of the "lien" (e.g. debt), and it
creates a "right" in that it may translate a claim enforceable only against the other party
into an interest enforceable against a third party (creditors or purc hasers). Parties may
create it by contract and, subject to contract, it is implied into certain transactions. It is
discussed in Chapter 20. The equitable lien
17.14 Being a creature of equity the enforceability of the equitable lien against
third parties is limited. As with other equitable interests, it is enforceable against the
creator and those who acquire interests subsequently to it and, if the interest acquired is
"legal", have notice of it. 4 On the surface it appears to be an example of an equitabl e
recognition of a common law concept. Its affinity with the right of retention is, first, that
it may be implied into a relationship or created by contract. As is usual, courts of equity
were more ready than at common law to imply (or impose) a "lien" bec ause of fairness
or conduct. As a consequence, the equitable right remains more flexible today.
Secondly, its effect follows that of the common law in that it translates a claim into a
proprietary security interest enforceable against third parties (other creditors or
purchasers), but in this instance only with the limitation based on notice. But it differs
fundamentally from the common law "possessory lien" in that it does not depend on the
retention—or acquisition—of possession. It is discussed in Chapter 21. The statutory
lien
17.15 Liens may be created by statute. Their characteristics are those specified or
implied by the context 5 in the statute. A prime example is the right of retention conferred
on the unpaid seller of goods by the Sale of Goods Act 1979. 6 Such a provision may be
the basis for an argument that it operates not only to create a lien but in that context to
exclude all other liens. B. Admiralty Applicability of liens of common law, eq uity and
statute
17.16 The liens established outside Admiralty apply within it. So a clause in a
charterparty may create an equitable lien. In addition to the application of common law
possessory liens (for example, to the ship repairer) Admiralty itself a pplied the lien to
maritime relationships as, for example, in creating the salvor’s possessory lien.
Admiralty liens—the maritime lien and statutory lien
17.17 The concept of the lien has developed to a greater extent than elsewhere
through the maritime lien and the action in rem or statutory lien. The maritime lien is
discussed in Chapter 18 and the statutory lien in Chapter 19.
17.18 The development of the lien in the maritime sphere has been part of a pattern
drawn not only by statute, common law and equity but through the application of civil
law principles by the Court of Admiralty. The jurisdiction of the Admiral’s Court and
its successors is as important to the development of maritime law as is that of the
Chancellor to the development of general principles through equity. The conflict
between the common law courts and the Court of Admiralty in the seventeenth century
has been well documented even if its results are not entirely agreed. 7 It is sufficient here
to note that through the Court of Admiralty came principles not applicable outside that
court and that the conflict itself may have been the root of the development of the liens
unique to maritime law. 3. Which Lien and When?
17.19 Liens and other interests may, therefore, be created by contract 8 or may
follow from the creation of a particular relationship. The four types of lien vary as to
the scope and methods of enforceability. It is therefore important to identify not only the
various types of liens recognised by a legal system but to appreciate the extent to which
the creation of a lien is (a) by operation of the law and (b) is permitted to be by
contract. The "maritime lien" and "statutory lien" follow by operation of law from a
relationship or claim. A number of maritime liens are contractually based (as, for
example, seaman’s wages) and will follow from the contract unless waived. The
possessory and equitable lien may either follow from a relationship recognised as
founding the lien or be created by contract.
17.20 It is sometimes a difficult matter of construction as to which interest has
been created9 and if a lien it may be uncertain as to which type of lien has been created.
So a contract giving a party simply a "lien" may be construed as either conferring a
possessory lien, such as the lien for freight normally given in a bill of lading to a
shipowner over cargo, or an equitable lien. 10 A possessory lien will start only on t he
obtaining of possession and the equitable lien on the event specified as creating it. 11 So
it is essential in respect of an equitable lien to identify whether an agreement
contemplating future security is a contract to create a lien on an event occurrin g, or the
immediate creation of a lien to come into effect on an event occurring. Issues arising
from imprecise contractual terms (particularly in standard form charterparties or bills of
lading) are discussed in Chapter 22.
17.21 The effect of a lien created by contract or its exercise on any other interest
created by the same or another contract will depend on the contract. The exercise by an
owner against a charterer of a possessory lien on cargo will not render the vessel off
hire,12 but the claiming of possession of cargo by a salvor may be either as a bailee or
as a lienee, with consequential effect on the parties’ rights. 13 One Lien or More?
17.22 It will not always follow that only one lien exists. So a claim may qualify for
both a statutory lien in Admiralty and a maritime lien, and a claimant may rely on that
which is most beneficial to him. On the other hand it is essential to appreciate that
events may lead either to the creation of more than one lien or the supervention of one
by another. Where an interest is established as flowing from a relationship and the
contract creating the relationship provides for another interest which, by its nature,
supervenes, it may be that in the event of the express int erest failing no claim be made
that the implied one survives. So the equitable lien which attaches in favour of an
unpaid vendor may be prevented from arising by the stipulation for a legal charge. 14
Contractual provision of security may opera te as a waiver or suspension of a lien, or a
prohibition of its exercise unless the security proved non -effective.15 Priorities
17.23 Priorities between liens and between liens and other interests will be
discussed in Chapter 23. In this general introducti on it is sufficient to emphasise that not
all liens have an identical scope of enforceability and that the critical question for a
claimant is often not whether a lien has been created but whether it confers priority over
other claimants. Priority depends on particular rules, the distinction between legal and
equitable interests and the effect of registrability and registration. 4. Foreign Liens
17.24 Foreign law plays a large role in the maritime area. As in all areas involving
cases with a foreign element, an essential issue is the law which governs the creation
and enforceability of the lien. Secondly, reference to a foreign law raises the question
ofrecognition of foreign liens by the forum. These questions will be discussed in
Chapter26.
17.25 There have been three attempts at the creation of an international framework
in respect of some of the rules relevant to maritime liens and mortgages. These attempts
resulted in the International Conventions for the Unification of Certain Rules Relating to
Maritime Liens and Mortgages 1926 and 1967 and the International Convention on
Maritime Liens and Mortgages 1993. Neither of the Conventions of 1926 or 1967 has
been a conspicuous success and the Convention of 1967 has never come into force. The
1993 Convention was agreed by 65 states on 6 May 1993 and it was then said by the
Secretary General of the International Maritime Organisation that conditions for
attracting a large number of ratifications could not be better. Certainly there is much to
be said for uniformity in the area. However it was not until 5 September 2004 that the
Convention came into force, with 11 States being parties. The lack of progress in
implementing agreed Conventions in this area persists. The Conventions are considered
in Chapter 18. 5. Liens and the Registration of Interests
17.26 Registration of interests can perform one of three functions: first, simple
publicity—to ensure notice; secondly, provision of priority over subsequent interests,
nonregistration rendering a registrable interest l iable to defeat; and thirdly, priority over
both prior and subsequent non-registered interests.
17.27 Registration plays a limited part in English maritime law. It is provided in
respect of ownership and mortgage of some but not all ships and even in these fields its
particular functions have not been precisely worked out. It is also relevant through the
application in a maritime context of principles of other areas, in particular, registration
provisions relating to company shares and charges. The effect o f non-registration varies
at least in degree, in that non-registration of a transfer of company shares simply affects
its priority over other non-registered interests while non-registration of a charge by a
company renders it void against the liquidator and any creditor. 6. Insolvency and
Liens
17.28 Insolvency of a company or bankruptcy of an individual has its effect on
liens insofar as there may be restraint of proceedings, adjustment of transactions,
avoidance of dispositions of property and possessory liens, and power to dispose of an
asset so as to remove any security interest in it. 1. Companies Winding up or
liquidation
17.29 A company which is insolvent or threatening to become insolvent may be
wound up (or liquidated). Winding up may be voluntary or by order of the court 16 and
marks the end of the company. Once a winding up petition is made to a court, it has
power to restrain proceedings against the company. 17
17.30 In a winding up by a court apart from acts by an administrator while a
winding up petition is suspended, any disposition of company property or transfer of
shares is void unless the court otherwise orders. 18 There are powers to "adjust" some
prior transactions within specified periods prior to the making of an administration
order commencement of the winding up —where preference has been shown,
extortionate credit transfers, transfers at undervalue and avoidance of certain floating
charges.19 Possessory liens on books and documents (save documents of title held as
such) are unenforceable to the extent that possession may be denied. 20 Further, any
attachment, sequestration, distress or execution put in force against the company after
the commencement of the winding up is void. 21 After the winding up order the court may
give leave to proceed against the company. 22 Administration orders
17.31 An administration order may be made by a court in relation to a company
heading for or having arrived at insolvency with the object of restoring it to profitability
and preventing it being wound up. Under the order an administrator would be appointed
to manage the company preferably with a view to rescuing the company as a goi ng
concern or, if that is not practical achieving a better result than if the company were
wound up or realising property to make a distribution to secured or preferential
creditors.23 The achievement of the purpose is unlikely to succeed if all outstandin g
claims are made and so a balance has to be struck between creditor’s rights and
company survival.
17.32 However, in many cases when a company was in financial difficulty an
administrative receiver would be appointed by a creditor holding a floating charg e.
Such a receiver owed duties mainly to the appointor. The machinery was reformed by
the Enterprise Act 2002 in making the appointment of administrators easier and
providing that they act for all the creditors. 24 An administrator may be appointed by
order of a court, holder of a floating charge by the company or its directors. However
appointed the administrator is an officer of the court. Subject to applications by a
liquidator or the holder of a floating charge there can not be administration while there is
a winding up order or a resolution for winding up. 25 An administrator may be appointed
either by the court or specified persons with an interest in the company and however
appointed are officers of the court with a duty to act on behalf of all creditors.
17.33 For the converse reason to the winding up of a company many of the court’s
powers to contest claims are applicable when a company is in administration, save with
the permission of the court no steps may be taken to enforce any security over the
company’s property and no legal process may be instituted or continued. Once a
company is in administration the prohibition continues with the qualification that there
may be enforcement or legal process with the consent of the administrator. The
administrator may dispose of company property subject to a floating charge as if it were
not subject to a charge and by court order any other security as if it were not so
subject.26 A condition of a court order must be that the proceeds of the disposal are to
be applied discharging the sums secured by the security. 27 2. Individuals—Bankruptcy
17.34 Similar to the provision in relation to a company any time when bankruptcy
proceedings are pending or an individual has been adjudged bankrupt a court may stay
"any action execution or other legal process against the property or person" of the
debtor or bankrupt. 28 After the making of a bankruptcy order no unsecured creditor may
have any remedy in respect of the debt against the property or person of the bankrupt
and may commence proceedings only with the leave of the court. 29 No creditor who
prior to the bankruptcy order has issued execution against the goods or land of the
bankrupt or attached a debt, can retain the benefit against the trustee of the estate or the
official receiver unless the execution or attachment was complete before the making of
the order.30 7. Maritime Liens, Statutory Liens in Admiralty and the Action "in
Rem"
17.35 A certain number of claims are foundations for the "maritime lien" and the
security interest thereby created enforceable by an action in rem, and certain other
specified claims form the basis for the bringing of an action in rem without qualifying as
maritime liens. The bringing of the action in rem confers on the claimant a security
interest in the property of which it is the target similar in nature to but not equivalent in
priority or arguably scope of enforceability to a marit ime lien. In some instances
(ownership, possession and mortgage) the interest enforced by the action in rem is
proprietary. In the majority the claim or interest is of itself not proprietary (e.g. carriage
of goods) but the issue of the writ in rem makes it so. In both contexts a proprietary
interest exists.
17.36 To call the proprietary interests created by the action in rem, where apart
from the action no such interest existed, anything but " liens" would be to ignore the
similarity as regards security and enforceability characteristics which they have in
common with other proprietary interests. To call them simply "statutory liens" is to put
them into a rag-bag of different liens so called only because they are founded on
statutes. It would be to ignore the paramount importance in maritime law of their
common characteristics. They are a legal category and should be recognised as such. In
this work they are entitled "statutory liens in Admiralty".
17.37 Whether claims which by their nature are enf orceable as proprietary
interests (ownership, possession and mortgage) are also accurately described as
"statutory liens in Admiralty" depends on whether the action in rem brings to them a
security interest not already attached to the claim. The categorisation as liens or not is
important in defining the characteristics of the claim ( see Chapter 23).
17.38 Because of the essential connection with the action in rem any enquiry into
the characteristics of maritime liens and statutory liens in Admiralty involves enquiry
into the nature and scope of the action in rem. The characteristics of the maritime and
statutory lien cannot be defined apart from the nature and scope of the action in rem.
While, however, the scope of the action in rem may indicate the scope of a maritime or
statutory lien, focus on the action in rem instead of the lien is to focus on the method of
enforcement of an interest rather than the interest being enforced. The action in rem,
the action in personam and the lien
17.39 It may be that historically the action in rem was but a means to persuade a
defendant to participate in personam, and arrest and judicial disposal of property an
additional method of persuasion. In modern times the connection with in rem to in
personam jurisdiction is maintained. However, the primary element of enforceability by
an action in rem is the lien either attached to the underlying claim (as the maritime lien)
or recognised as existing through the use of the " in rem" process to enforce a claim of a
specified nature. The lien (maritime or statutory) is a substantive interest enforced or
created by the issue of an in rem claim form and, if necessary, arrest and ju dicial sale.
17.40 Focus on the action in rem rather than the lien has led to confusion in English
law between provisional measure (arrest), jurisdiction to consider a claim (through the
action in rem), the interest being enforced (lien) and enforcement (judicial sale). 31 Part
of the confusion is the linking of jurisdiction to the type of action rather than the type of
claim. Just as in truth the action in rem is the method of enforcement of the maritime lien
attached to specific claims, so it should be recognised as having an identical function
for claims attracting a statutory lien in Admiralty. The focus would then be on the
characteristics of the claim assessed as being one to which a security interest is
attached. Priorities could then be allocated according to the claims.
17.41 A considerable step towards recognition of the nature and role of the action
in rem was taken by the House of Lords in 1997 in The Indian Grace (No. 2) 32 that the
time had come to discard the fiction that an action in rem was not against the owners of
a ship but against the ship. But a perceived possible problem in the enforcement of some
maritime liens against the ship without liability of the owner in personam or despite a
sale was simply set aside as not relevant to the case.
17.42 With respect it surely was as relevant to the principle on which reliance was
placed as explicable. Once the claim and not its method of enforcement takes centre
stage there is no problem—simply differing characteristics of different claims. A
liability in respect of a proprietary interest simply because of that interest is hardly
novel. While it was not relevant to the pr ecise circumstances of the claim in the case it
surely is desirable for a court fundamentally analysing a fundamental concept to indicate
how apparent inconsistencies with that concept are to be approached. It is unfortunate
that not only did the House put maritime liens on one side, but also took no account of
enforceability of a statutory lien in Admiralty despite the sale of a ship. In that context it
may be that an action in rem (other than a maritime lien) may result in "liability" de spite
there being no liability in personam. So the next step is to give the action in rem and the
lien their appropriate roles.
17.43 As has been seen, international connections are leading to the destruction of
the mandatory and somewhat narrow link betwe en provisional measure and English
substantive proceedings. Similarly neither historical development nor failure
internationally to link arrest and lien should now conceal the realisation that the
fundamental justification for arrest and the action in rem itself is the enforcement of the
lien. It is the liens which have to be justified in terms of policy. The acceptance of the
lien as lying at the heart of many unique Admiralty concepts means that the action in rem
is seen as what it now is—a method of enforcing specified proprietary interests in
relation to an asset—by definition against others having interests in that asset. It is
therefore not as a cause of action as a means to in personam jurisdiction that the enquiry
into the nature and scope of the act ion in rem must be approached, but simply as a
separate cause of action, the means of enforcing particular interests. 1. The Categories
of Claim Enforceable by Action "in Rem"
17.44 The action in rem for claims to which maritime liens did not attach came o n
the scene in 1840 and 1861 at about the same time as the "maritime lien" became
recognised as a general concept with a number of applications. It may have once been
arguable that the sole differences between the maritime and statutory liens lay in the
time of their creation and in priority. If this was so the action in rem operated in an
identical way whatever claim or whichever category of liens it was relevant in
enforcing. 2. The Supreme Court Act 198133 and the Action "in Rem"
17.45 The claims enforceable by an action in rem are now set out in the Supreme
Court Act 1981. Under that Act and its predecessors the action in rem is linked to
maritime claims in four distinct categories.
17.46 First, in section 2 1(3) the Act provides for the enforcement of m aritime liens
by an action in rem. Secondly, in section 2 1(2) the Act simply provides for
enforceability of the claims listed in section 20(2)(a) –(c) and (s) through an action in
rem against the ship or property involved. Thirdly, through the "sweeping up " clause
(section 20(1)(c)) it arguably retains such jurisdiction in rem as existed prior to 1
November 1875. Finally, in section 2 1(4) the Act specifies the conditions of liability in
personam required for an action in rem to lie in enforcing the claims listed in section
20(1)(e)–(r). (i) Claims based on maritime lien (section 21(3))
17.47 The critical questions are, first, the characteristics of the maritime lien and,
secondly, the scope of the action in rem. Only by enquiry into the historical developme nt
of these two matters can section 21(3) of the Supreme Court Act 1981 be given
meaning. (ii) Claims based on section 20(2)(a)-(c), (s)
17.48 These claims relate to ownership, possession, mortgage and the collection of
claims based on forfeiture or condemnation of a ship or goods and droits of Admiralty.
They are, therefore, not the most common of claims but, certainly as regards the first
three, not unimportant. As with the maritime lien, the statute provides simply that the
claims are enforceable by an action in rem, leaving the characteristics and scope to be
unearthed through historical reference. So, again, it requires enquiry to give meaning to
the statutory provision. (iii) Claims within the sweeping up clause (section 20(1)(c))
17.49 If in rem jurisdiction is maintained the enquiry is purely historical and
amounts to a voyage of discovery on nineteenth century seas. It is relevant to liens in
Admiralty insofar as Admiralty jurisdiction in rem prior to 1 November 1875 exceeded
that now expressed in the Supreme Court Act 1981. (iv) Claims based on section 2 0(2)
(e)-(r)
17.50 Liability in rem depends on liability in personam as specified in section
2 1(4). The prerequisites for the creation of the "lien" flowing from the use of the action
in rem are, therefore, matters of statutory construction. The historical nature of the
action in rem is irrelevant.
17.51 It will be seen therefore that only in respect of (iv) are the characteristics of
the action in rem specified by the statute. In (ii) and (if the ju risdiction exists) in (iii) the
"action in rem" may define the claim but the scope of the action in rem is not defined. In
(i) (maritime liens) neither the interest nor its method of enforceability are defined. It is
therefore essential to any discussion of maritime and statutory liens in Admiralty that the
nature and role of the action in rem is examined. 3. Remaining Uncertainties of the
Scope of the Lien in Admiralty
17.52 Lacking statutory specification, the characteristics of the maritime lien and
the action in rem must be gathered from judicial development and, to some extent, rules
of procedure such as the former RSC Order 75, and the Civil Procedure Rules 1998
particularly Part 61. There is one fundamental aspect which remains unsettled and
which reflects on the nature and scope of the maritime lien and, insofar as it is not
defined by statute, the statutory lien, i.e. the extent to which in personam liability is
required for liability in rem—in particular the extent to which the action is enforceable
against property the owner of which is not liable in personam.34
17.53 This issue will be discussed in succeeding chapters in relation to particular
claims but common to each is the origin and development of the action in rem.
Historians continue to argue vehemently about the origin and judges continue to use their
views of it as reasons for adjudging the present consequences and characteristics of the
action. The contest focuses essentially on the basic principle —is it procedural or based
on personification of the ship? 4. Lien and Action "in Rem"
17.54 As the action in rem is the mode of enforceability of the maritime lien and
the foundation for the statutory lien it follows that the nature and scope of the lien are
essentially linked with nature and scop e of the action in rem. In 1997 the House of
Lords saw the need to identify and analyse the action in rem in the context of its present
operation (see Chapter 10). As has been earlier contended in this chapter the necessary
further step is to recognise its actual role and in particular its relationship to the lien.
The lien defined according to the action in rem
17.55 The procedural and personification views of the action in rem have
influenced if not controlled the concept of the liens the foundation for o r consequence of
that action. So the lack of necessary in personam liability is seen as possibly stemming
from or supporting the fiction of personification, while the requirement of such liability
is indicative of the procedural approach. The procedural road then seems to have led to
the conclusion that the lien itself was of that nature.
17.56 But this is to confuse the dichotomy of procedure and personification with
that of procedure and substantive interest and, in so doing, to ignore the substantive
characteristics of each and every lien. It is, as has earlier been argued, to let the method
of enforcement dictate the nature of the interest enforced.
17.57 In The Indian Grace (No. 2) 35 the House of Lords was concerned to rid
English law of the theory that an action in rem had the ship or other property as the sole
target.36 To that end reliance was placed on the procedural approach to the action. But
the holding that the defendant in an action in rem is the shipowner (or presumably other
parties interested) by no means has the consequence that that which is enforced is a
matter of procedure. It is all to do with "the defendant". 37 Indeed, establishing a person
as the defendant underlines the analysis that the action in rem is the method of
enforcement and that a claimant has a substantive interest to enforce against the
defendant. The view taken by the majority of the Privy Council in The Halycon Isle 38
that a maritime lien is a matter of procedure ( see Chapter 18) ignores its substantive
characteristics, and the very rationale of a lien.
17.58 So where the role of the action in rem is to enforce a maritime lien it is
difficult to see how it is being used except to implement a substantive interest. The lien
exists as from the event creating it and, as with any other interest, is enforced by the
appropriate method. Where the action lies to enforce a claim to which no maritime lien
attaches the now accepted primary characteristics of the use of the action in rem are
that:
(i) it translates the claimant into a secured creditor in relation to the property
involved—but only in relation to that property or a "sister ship";
(ii) the interest created is enforceable against purchasers of the property involved;
(iii) the interest created is extinguished if the property is destroyed.
17.59 Further, the restriction of the availability of arrest to property involved in the
claim in the case of the maritime lien and the action in rem in respect of ownership,
possession and mortgage claims gives that property an exclusive importance in regard
to the claim. The security available is that property and nothing else. In the face of such
substantive consequences it is difficult to argue that the action is procedural only. The
statutory extension of the property "liable" in most claims enforced by an action in rem
other than those attracting a maritime lien serves only to widen the scope of assets
subject to the interest. Such an extension can hardly change the lien from substantive to
procedural. The critical factor is that the lien reflects a proprietary interest in the
appropriate assets. 39
17.60 The procedural view taken in its pure form in effect equates the action in
rem with the availability of arrest or seizure of assets prior to judgment. If it is a mode
of procedure simply to persuade a defendant to appear so as to make him a target, it
must follow that no substantive consequences f ollow from it. First, therefore, there
should be no restriction as to the assets of the defendant that could be seized as security.
Secondly, logically the action should not affect third parties and once the defendant
appeared the security should be released. If its role was simply persuasive and the
defendant was persuaded to defend, the action in rem would be spent and the action
would continue as an action in personam. If the defendant did not acknowledge service
or if even after acknowledgment the property was retained as "security" it should be no
more an asset available for enforcement of the judgment than any other.
17.61 But none of these factors applies so as to affect the substantive interest of the
lien lying behind or created by the action in rem. There is a restriction as to the assets
available and there are rights created against third parties by the maritime lien or issue
of the in rem claim form. Further, liability in the action depends on the existenc e of the
property and is probably limited to its value.
17.62 The connection between the action in personam and action in rem has come
to the fore in the context of the European jurisdiction and judgment regimes. The matters
there at issue are first whether for the purposes of the regimes in the action in rem a
"defendant" is sued and secondly, if so, whether concurrent actions in personam and in
rem are the same or related causes of action. As to the first in The Deichland 40 (later
relied on and approved in The Indian Grace (No. 2) ) the Court of Appeal took a
realistic and international view in holding that the action in rem is against a defendant.
As to the second in The Maciej Rataj,41 the European Court held that the distinction i s
irrelevant to the question of the identity or relation between the causes of action. That
depends on the identity of the parties, the cause and object of the action. Just as the
national law distinction between in personam and in rem is irrelevant to the regimes so
the regimes are irrelevant to the connection between lien and actions in rem. It is
incontrovertible that whatever the identity or similarities between the action in
personam and action in rem, one essential characteristic of the action in rem is that it is
based on or creates a lien. In other words the European regimes have no relevance to
the substantive interest to which the action in rem is connected.
17.63 Now that personification is no longer an arguable concept it is essential that
the recognition that the defendant is a person and not a thing is not confused with the
interest enforceable against that person. Analysis of a maritime claim must therefore
distinguish between:
(i) the claim and its characteristics (including any lien);
(ii) the method of enforcement—in rem or in personam;
(iii)the interlocutory and final remedies.
The discussion of the types of lien is based on this analysis.
1. See Megarry’s Manual of the Law of Real Property (1993). Pledge is akin to a
possessory lien insofar as possession is at its heart but it is said the pledgee has a
"special property" in the chattel. See Bridge, Personal Property Law (2nd edn, 1996) at
p. 147. See further infra.
2. See e.g. The Lancaster [1980] 2 Lloyd’s Rep. 497. In The Ugland Trailer
[1985] 2 Lloyd’s Rep. 372 Nourse J. distinguished between the equitable lien created
by operation of law and a lien (a charge) created by contract —but thought the
distinction one of terminology only. See generally Chapters 21, 22.
3. [1988] 1 Lloyd’s Rep. 45. See also The Lancaster [1980] 2 Lloyd’s Rep. 497, a
"lien" in favour of a time charterer against an owner being construed as the right to
retain use of the ship similar to a possessory lien. See Chapter 22.
4. Registration (as to which, see infra), statutory provisions and conduct of the
parties affect this principle. See generally Chapters 1 and 23.
5. So e.g. the broker’s lien on a policy under the Marine Insurance Act 1906,
s.53(2) is a possessory lien on the policy itself—the words "lien on the policy" cannot
be construed as including a right to the proceeds. See Eide UK Ltd v. Lowndes Lambert
Group Ltd [1998] 1 Lloyd’s Rep. 389 (C.A.).
6. Sections 41 and 43. As to the effect of sale by a seller who has exe rcised his
lien, see s.48.
7. See Wiswall, "The Development of Admiralty Jurisdiction and Practice since
1800", Cambridge University Press 1970. See also Ryan (1968) 7 Western Ontario L.R.
173.
8. As to the difficulties which may be caused to established financing
arrangements, see the comments of Roskill L.J. in The Panglobal Friendship [1978] 1
Lloyd’s Rep. 368, at p. 371.
9. A deposit of documents may create an equitable mortgage or simply be a pledge
of the documents. See Bridge op. cit. at p. 148. As to the transfer of rights of suit
through delivery of a bill of lading, sea waybill or ship’s delivery order to a consignee
to whom the rights and liabilities in the contract are transferred, see Carriage of Goods
by Sea Act 1992 (as to which see 1993 LCMLQ 436).
10. Or possibly an equitable charge, fixed or floating. See e.g. The Panglobal
Friendship [1978] 1 Lloyd’s Rep. 368; The Annangel Glory [1988] 1 Lloyd’s Rep. 45.
On the particular point of that case (the construction of NYPE Clause 1 8—1993 Clause
23) see The Lancaster [1980] 2 Lloyd’s Rep. 497 and Chapter 21. Compare Trident
International Ltd v. Barlow [1999] 2 B.C.L.C. 506 (C.A.).
11. However, the contractual right to the lien may be good against not only the
other party to the contract but also an assignee of the contract in much the same way as a
set-off good against the assignor may be good against the assignee. See George Barker
(Transport) Ltd v. Eynon [1974] 1 Lloyd’s Rep. 65 and Chapter 22.
12. Lyle Shipping v. Cardiff Corpn [1900] 2 Q.B. 638, nor affect an otherwise
valid notice of readiness, see Gill and Duffus SA v. Ronda Futures [1994] 2 Lloyd’s
Rep. 67.
13. See The Winson [1982] A.C. 939, [1982] 1 Lloyd’s Rep. 117.
14. See e.g. Burston Finance v. Speirway [1974] 1 W.L.R. 1648.
15. See Chapter 18.
16. Insolvency Act 1986, s.73. A voluntary winding up application may be made to
a court for the exercise of powers available on a winding up by a court (s. 112).
17. Ibid., s.126. A secured creditor would normally be allowed to proceed. See Re
Aro Co. Ltd [1980] 1 All E.R. 1067 and Chapter 18.
18. Section 127 as amended by Enterprise Act 2002 s.248(3).
19. Ibid., ss.238–247 (as amended by Insolvency (No. 2) Act 1994, Ent erprise Act
2002).
20. Ibid., s.246 (as amended by the Enterprise Act 2002).
21. Ibid., s.128. This provision is to be read subject to the power to stay
proceedings (s.126) and to permit proceedings against the company once a winding up
order is made (s.130(2)). See Re Exhill Coal Mining Co. (1864) 4 De G.J. and Sm.
377. As to arrest and winding up see Chapter 10.
22. Section 130(2).
23. An alternative and a possibly preceding attempt to avoid winding up is the
appointment of an “ administrative receiver” by or on behalf of debenture holders
secured by a floating charge (ibid., s.29(2)). Such a receiver must vacate office on the
making of an administration order Sched. B1, para. 41(1).
24. Section 128, Sched. 16, replacing Part 2 of Insolvency Act 1986 and inserting
Sched. B1 into the 1986 Act. As to the continued application of the former provisions to
limited liability partnerships see SI 2001/1090 Reg. 5; 2003/2093 Art. 3(31).
25. As to the machinery, powers of the administrato r and court see Sched. B1.
26. Section 15(1) –(3).
27. Section 15(4), (5). Where the disposal does not yield a sum which would be
gained in the open market the deficiency must be made up in discharging the sum owed
(ibid.).
28. Section 285(1), (2). There is no reason to think that the former practice of not
staying proceedings by a secured creditor (see Re Evelyn [1894] 2 Q.B. 302) has
changed.
29. Section 285(3), (4).
30. Section 346(1), the provision being subject to the court’s power un der s.285 to
stay the proceedings.
31. For a tendency to further confuse by discussing the existence or continuation of
a lien in terms of arrest see Chapter 18—extinction of maritime liens.
32. [1998] 1 Lloyd’s Rep. 1. See further Chapters 9, 10.
33. For relevant text, see Appendix 1.
34. Other unsettled aspects go to in personam aspects of an in rem claim—the
liability in an action in rem of a person in excess of the value of the property or to in
personam remedies. These issues do not as such affect the lien save insofar as such
liabilities if they exist blur the boundaries between the concepts of in rem and in
personam liability.
35. [1997] 1 Lloyd’s Rep. 1.
36. It is interesting, if not ironic, that the construction of the Brussels Convention
played a part in the reasoning. See also the Deichland [1989] 2 All E.R. 1066 (C.A.)—
considering the action in rem in the context of the Brussels Convention ( see Chapters 4,
5) and the cases on sovereign immunity c ited in The Indian Grace (as to which see
Chapter 12).
37. So the addressing of the writ in rem to the owners, and the rule that on
acknowledgment of service of the writ created jurisdiction in personam pointed the
same way (see The Indian Grace supra). Neither factor goes to the interest enforced
through the action in rem.
38. [1981] A.C. 221. See Chapter 18.
39. The ability to enforce an unsatisfied judgment in personam through an action in
rem (as to which see Chapter 27) (thought in The Indian Grace (No. 2) to be limited to
maritime liens) supports the view that the "lien" is an independent substantive interest.
The arguable possibility of (i) recovery of damages in excess of the value of the
property and (ii) in personam remedies (see infra) do not affect the existence of any
lien, but simply go to the scope of available remedies.
40. [1989] 2 All E.R. 1066.
41. [1997] 1 Lloyd’s Rep. 380.
Chapter 18
Maritime Liens 1. Claims to Which a Maritime Lien May Attach

18.1 The claims are:
Bottomry and respondentia.
Damage caused by a ship.
Salvage.
Seamen’s wages.
Master’s wages and disbursements.
The nature of these claims was discussed in Chapter 2. It was there stressed that
these claims also attract statutory liens in Admiralty in that an action in rem may be
brought in accordance with the Supreme Court Act 1981, section 21(4). The claimant,
therefore, may plead both maritime and statutory lien. As only one in rem claim form
may be served on one ship for one claim 1 the basis of the claim must be in the
alternative. There would seem to be no obstacle, however, to the service of an in rem
claim form on cargo in respect of the same claim in respect of a maritime lien and
another on a ship in respect of a statutory lien. 2 2. Consequences of Attracting a
Maritime Lien
18.2 Some, but not all, consequences are uniform to all the claims attracting a
maritime lien. Any variations remain uncertain. First, a summary of the consequences
accepted as flowing from the maritime lien: 3
(i) the lien confers a right and a remedy in addition to any available against a
defendant liable "in personam" ("liability in personam" meaning simply liability of the
defendant for the claim);
(ii) the lien is enforceable through an action in rem and inherent in that action
(a) the ship, cargo or freight subject to it is liable to arrest prior to hearing on the
merits;
(b) jurisdiction on the merits is founded on service of an in rem claim form, arrest
or permitted substitute; 4
(iii) the lien arises on the event creating it (such as a collision or wages becoming
payable) ;5
(iv) in respect of the ship, cargo or freight the target for the action, the "lien" is
enforceable against other creditors (whether secured or unsecured) and, subject to
existing possessory liens, takes priority over all other creditors whether the claims of
those creditors arose before or after the creation of the lien;
(v) once created, the "lien" is enforceable even though the ship be sold whether or
not the purchaser has notice of it;
(vi) where the person liable in personam is a charterer of the ship in respect of
which a lien arises in certain circumstances the "lien" may be enforced against the ship
(see infra);
(vii) apart from bottomry bonds, whether a maritime lien can be transferred is
unclear: it is accepted that a bottomry bond may be transferred;
(viii) property arrested as part of an action in rem in the High Court enforcing the
lien is subject to sale by the court and the proceeds are then available to a lien holder
and other claimants in rem;
(ix) sale by the court as a step in enforcement of the lien extinguishes it and
transfers the "lien" to the proceeds;
(x)the lien is extinguished by the destruction of the ship, cargo or freight to which
it attaches;
(xi) the lien may be extinguished by laches, waiver or satisfaction of the debt and,
possibly, by lodging of bail, or provision of a guarantee and the claims attracting the
lien may be extinguished by rules relating to effluxion of time. 6
18.3 It should be recalled that in English law maritime liens are "secret" interests.
There is no provision for their registration. Despite the usual indemnity clause in sale
contracts, purchasers and other creditors run the risk of the ship or cargo being
burdened by such liens.7
18.4 Not only secrecy but uncertainty remains about maritime liens, and the
uncertainties are not decreased by legislative inaction. 8 Nothing is to be found in
statutes about their characteristics save that they may be enforced by an action in rem.
Much of the uncertainty is due primarily to a combination of lack of statutory provision,
together with an inability to point accurately at historical roots. This inability has tended
to encourage in particular cases a selection of historical development a ccording to the
practical and conceptual conclusion thought preferable. 3. The Nature of the Maritime
Lien 1. The Maritime Lien and the Action “in Rem”
18.5 The action in rem lies at the heart of Admiralty practice and has been
discussed in Chapters 2 and 10. It is the means of enforcing maritime liens and it is
largely equated with statutory liens in Admiralty. Indeed, some may prefer the
description of the latter to be simply "actions in rem". But this would be to confuse
statutory and maritime liens also enforceable by actions in rem and to ignore the
substantive proprietary characteristics consequential on the availability of the action in
rem. Statutory liens in Admiralty are discussed in Chapter 19.
18.6 To summarise the nature of the action in rem in English law—it is confined to
Admiralty and is available only in enforcing maritime and statutory liens in Admiralty.
Its distinguishing features are:
(i) its availability concurrently or consecutively with an action in personam;
(ii) the availability of arrest of an asset relevant to the action (i.e. a ship, "sister
ship", cargo or freight) or the establishing of a fund in lieu as "security" for the claim ;
(iii) the establishing of jurisdiction through service of the claim form normally on
or arrest of the relevant ship or cargo;
(iv) the availability of sale by the court and the transfer of the "security" to the
proceeds of sale.
The action in rem is essentially historically linked with the maritime lien. Statutory
liens in Admiralty appear at their earliest in the Admiralty Court Act 1840 and possibly
not until the Admiralty Court Act 1861. It is unclear whether prior to these enactments
proceedings in rem were limited to claims now recognised as attracting maritime liens.
2. The “Maritime Lien” as a Legal Category of Claims
18.7 The category of "maritime lien" in English law originated in 1851 in The Bold
Buccleugh.9 Its subsequent development required a distinction between such claims and
other types of claim in respect of which statute provided for proceedings in rem. The
Bold Buccleugh has been described as a case "not where the maritime lien was born but
rather where it was unveiled and placed in full view". However, the case seems rather
more creative, exemplifying the generalisation from specific cases which is a stage in
the classic development process of the common law. In English law The Bold
Buccleugh is to maritime liens what Donoghue v. Stevenson is to negligence.
18.8 It is subsequent development that puts The Bold Buccleugh in its place as the
originating authority on maritime liens as the category now is. However, in the case
itself, the judgment not only classified a claim for collision damage with claims for
wages, salvage and bottomry as attracting an action in rem, but stated that "in all cases
where a proceeding in rem is the proper course there a maritime lien exists ... ". 10 As
such an equation was clearly erroneous by 1885 it has cast some doubt on The Bold
Buccleugh as an unquestioned authority. At the time of “The Bold Buccleugh ” —in
1851
18.9 It is uncertain whether, prior to 1840, the Admiralty Court allowed
proceedings in rem in regard to any claim apart from the wages, salvage and bottomry
claims specified in The Bold Buccleugh as attracting maritime liens. 11 Price suggests
that claims for pilotage, towage on the high seas and necessaries supplied on the high
seas may have attracted such liens. And certainly there are some general judicial dicta
in support.12
18.10 Whether or not there was such jurisdiction, the Admiralty Court Act 1840
conferred a power to hear claims in addition to those then within Admiralty
jurisdiction.13 Section 6 provided:
"VI. And be it enacted. That the High Court of Admiralty shall have Jurisdiction to
decide all Claims and Demands whatsoever in the Nature of Salvage for Services
rendered to or Damage received by any Ship or Sea-going Vessel, or in the Nature of
Towage, or for Necessaries supplied to any Foreign Ship or Sea -going Vessel, and to
enforce the Payment thereof, whether such Ship or Vessel may have been within the
Body of a County, or upon the High Seas, at the Time when the Services were rendered
or Damage received, or Necessaries furnished, in respect of which such Claim is
made."
18.11 If this provision means that proceedings in rem could be brought in relation
to salvage, damage, towage and necessaries and if the equation drawn in The Bold
Buccleugh was correct, in 1851 claims for towage and necessaries under the statute
attracted maritime liens. At the date of hearing of The Bold Buccleugh it may well have
been thought that towage did attract a maritime line. 14 As to necessaries, Dr Lushington
seems at that time to have been in the middle of a change of direction from his view
expressed in 1841 15 that no maritime lien was conferred by the statute to this lat er view
(in 1854) that it did, 16 and his still later view (in 1864) that it did not. 17
18.12 The later rejection of the view that proceedings in rem led necessarily to a
maritime lien did not affect the decision in The Bold Buccleugh that a claim for
collision damage fell within the same category as salvage, wages and bottomry, nor the
conclusion that these claims made up the category of "maritime lien". Subsequent
developments confirmed the boundaries of that category and the creation of the category
of statutory liens in Admiralty (discussed in Chapter 19). 3. The Modern Maritime
Lien and Statutory Lien in Admiralty Compared
18.13 The two types of lien now overlap in that all claims which attract a maritime
lien are included in the list of claims set out in section 20 of the Supreme Court Act
1981 as being claims enforceable by an action in rem. The maritime lien is more
powerful than the statutory lien in that:
(a) a maritime lien arises on the event creating it (whereas a statutory lien arises
only on the issue of an in rem claim form);
(b) (following from (a)) a maritime lien is enforceable against purchasers as from
its creation (whereas a statutory lien is so enforceable only from the issue of a claim
form);
(c) in some circumstances a maritime lien is enforceable against a chartered ship
even when the charterer and not the owner is liable in personam (whereas in relation to
most claims a statutory lien would only be so if at the time of the issue of the claim for m
the charterer has become owner or has become or remained demise charterer by the
date of the issue of the claim form); 18
(d) save for possessory liens existing at the time of the creation of a maritime lien,
a maritime lien takes priority over other liens and encumbrances whenever created,
such as mortgage, possessory liens and statutory liens (whereas a statutory lien is
subject to maritime liens, whenever created and mortgages and possessory liens
certainly when created prior to the statutory lien). 19
18.14 The statutory lien is more powerful than the maritime lien in that it may be
enforced against a "sister ship". The maritime lien is confined to the ship involved in the
claim20 and it has been suggested that the sale of a sister ship would not extinguish any
"maritime liens" adhering to a ship involved in the claim. 21 4. The Maritime Lien—
Procedure or Substance?
18.15 A maritime lien is attached to the asset which it affects from the event
causing it to arise. Despite this fundamental element of the lien, it was held by the Privy
Council in 1980 in The Halcyon Isle22 that the maritime lien is procedural and remedial
rather than substantive. The classification is of critical importance in cases of claims
adjudged by one law to be maritime liens and by another to be of lesser force.
According to English law the issue of whether a claim attracts a maritime lien will be
resolved by the law of the forum, and a primary ground for that conclusion is the
application of the general choice of law rule that matters of procedure are referred to
the law of the forum (see Chapter 26). Whether a maritime lien is regarded as
conferring a substantive right or is merely a procedure for asserting a claim is,
therefore, of fundamental importance. “The Bold Buccleugh”
18.16 The English root of the view that the maritime lien is procedural is a
description of the lien by Jervis C.J. in The Bold Buccleugh: "The claim or privilege
travels with the thing into whosoever’s possession it may come. It is inchoate from the
moment the claim or privilege attaches and when carried into effect by legal process by
a proceeding in rem, relates back to the period when it first attached." 23
18.17 In The Bold Buccleugh the Privy Council was concerned to assert the
liability of a vessel in a proceeding in rem after sale to a bona fide purchaser, the sale
being prior to the institution of proceedings. The judgment is directed both to asserting a
lien for collision damage on a like basis to the lien for salvage and recovery of wages
and the effect of such liens as against purchasers. The primary argument of Jervis C.J.
aimed first to distinguish the maritime lien from the common law possessory lien in that
the maritime lien does not depend on possession; secondly, to distinguish the lien from
the process of "foreign attachment" by which goods of a foreign debtor could be seized;
and, thirdly, to establish that the lien was not merely a device to compel the appearance
of the defendant.
18.18 The aim of the judgment is, therefore, to contrast the "substantive" nature of
the maritime lien with the procedural nature of "forei gn attachment". Yet subsequent
authorities have either ignored the decision entirely in drawing an analogy between a
lien and attachment or used the "inchoate" nature of the right as a basis for the
conclusion that it is procedural.
18.19 In arriving at his description, Jervis C.J. drew first on the label conferred by
Story J. in the United States case of The Nestor24—"the inchoate right"—and, secondly,
on Lord Tenterden’s description in Abbott on Shipping, i.e. "claim or privilege on a
thing to be carried into effect by legal process". 25 In The Nestor Lord Tenterden was
quoted in more detail. It appears that his "privilege" was an express contract of
hypothecation26 by a master of a ship—to be contrasted with the transfer of property of
the ship. Story J. then adapted Lord Tenterden’s description of the effect of the express
hypothecation to the effect of the "tacit hypothecation" resulting from a "lien by the
maritime law".
18.20 So, in The Bold Buccleugh, Jervis C.J. was concerned to as sert the very
converse of that which his words have since been used to support. He sought to
distinguish the maritime lien (substantive) from foreign attachment (procedural). And
clearly both Story J. and Lord Tenterden were using subs tantive analogies in their
various approaches. It is suggested that the views of all three are consistent with the
description of the maritime lien in the United States case of The Young Mechanic.27
Curtis J. said that a maritime lien is "not merely a priv ilege to resort to a particular form
of action to recover a debt ... It is an appropriation made by the law of a particular thing
as security for the debt or claim; the law creating an incumbrance thereon and vesting in
the creditor what we term a special property in the thing which subsists from the
moment when the debt or claim arises and accompanies the thing into the hands of a
purchaser." Modern views of “The Bold Buccleugh”
18.21 In The Halcyon Isle Lord Diplock (delivering the majorit y judgment) said
that a maritime lien was unlike a mortgage in that it created "no immediate right of
property". The lien was "devoid" of any legal consequences unless and until carried
into effect by a proceeding in rem, but once carried into effect "the charge dates back to
the time that the claim on which it is founded arose". Thereby, said Lord Diplock, the
lien can be pursued "as it were proleptically in a proceeding in rem against the ship28 at
a time when it no longer belongs to the shipowner who was personally liable to satisfy
the claim in respect of which the lien arose". With respect, the statement of the effect of
the dating back cannot establish the validity of what can only be called (with some
admiration) a tortuous explanation of a developmen t, the roots of which seem to have
borne a surprising fruit. The lien may be enforceable in this way either because it is
"proprietary" from its creation or because of its relation back.
18.22 Secondly, is it not semantic to draw a distinction between an " inchoate" right
depending for its substance on the taking of legal proceedings and a right of substance
which, if necessary, has to be enforced by legal proceeding? The enforcement of the
mortgage (contrasted by Lord Diplock with a lien) depends no less on the ability of the
mortgagee to enforce it against his security. If a court does not recognise the proprietary
nature of the security the mortgagee cannot enforce it, just as if a court does not
recognise the right to enforce the lien there is no lien. In this context, whether
proceedings can be brought and whether a claim exists is simply to put the same issue in
different ways.
18.23 Is the maritime lien any more "inchoate" than any other substantive right?
Prior to the proceedings in rem it is as much an encumbrance on the vessel as is a
charge on a fund or an equitable lien on land or on a fund. In the case of the charge or
equitable lien the failure to assert the claim within the applicable time limit leads to the
loss of the right to claim: as regards a maritime lien it is no different. There is in effect
no distinction between saying that (i) the lien is inchoate until legal process but the
process relates back to the moment of creation or (ii) a lien exists from that moment but
may be lost if not enforced. It is in effect a conclusion sought to be given the force of a
reason.
18.24 In 1981 in The Silia it was argued that if bunkers were part of a ship for the
purposes of making the proceeds of sale available to claimants who issue writs in rem,
"a maritime lien would attach to the bunkers whenever the circumstances gave rise to
such a lien". In reply, Sheen J. said:
"That argument imports a logical nicety which is inappropriate to the nature of a
maritime lien. The inchoate right which attaches to a ship in favour of the lienor (e.g. the
owner of another ship damaged in collision) is not perfected until the moment of arrest.
A ship which is damaged in collision is frequently repaired before there i s an
opportunity to arrest her. She is then more valuable than when the lien attached. On the
other hand she may have had to engage salvage tugs to enable her to reach port. The
salvors would have a lien taking priority over the lien for collision damage. The
claimant with a maritime lien takes the vessel as he finds her at the moment when he is
able to exercise his lien." 29
18.25 With respect, it is unfortunate that the phrase "inchoate right" was cited on
the way to the incontestable conclusion that it is the vessel as it is at the moment of
arrest which is the asset to which the lien attaches. 30 This conclusion has its own logic
for it fits with the need of the existence of the asset for the lien to come into existence
and to continue to exist. It simply reflects the concept of the creation of an encumbrance
on an asset, the asset to be defined on the taking of further action.
18.26 Even if it be accepted that the taking of this further action is a necessary step
in the concept of a maritime lien, it does not follow that prior to that step the lien is but
a shadow. It is an actual encumbrance although its content or value could be defined as
conditional on arrest or obtaining security in lieu. 31 It is to be noted that, as Sheen J.
said, it is the arrest which operates to define the asset just as it is the obtaining of
security which defines the value. The bringing of proceedings is but one step towards
this.
18.27 It is therefore suggested that the persistent emphasis on the "inchoate"
character of a maritime lien is misleading. It is no more of a shadow than (for example)
a maritime mortgage. It is suggested that the contrast between maritime and statutory lien
as to time of creation reflects a real difference and the reality of the nature of the
maritime lien. So the maritime lien exists in substance from the event creating it and the
statutory lien from the issue of the claim form. 4. Assets Subject to a Maritime Lien
18.28 The Supreme Court Act 1981 provides that an action in rem will lie in any
case in which there is a maritime lien or other charge on "any ship, aircraft or other
property". What may be the object of a maritime lien is to be found in judicial
development of the definition of a "ship" and "other property". 32 Assets liable to arrest
and the relevance to the maritime lien
18.29 A maritime lien (as any interest in a chattel or land) will attach to the
maritime property subject to it (ship, cargo or freight) as it exists at the moment of its
creation. It appears that, in the case of a ship, this would be the ship —the hull,
machinery and other fixed parts ("appurtenances"). But (again as with any interest in
property) that does not mean that the asset remains static while the interest is being
enforced. It is accepted that the lien is directly linked to the property, and, if that
property changes in nature, the lien attaches only to the changed property. T hat principle
will therefore mean that arrest as security for the lien may be made if the property on it
is at the date of arrest, and that when there is final enforcement again it is against the
property (or its value) as it then is. So the start point for inquiry into the scope of
property to be arrested or sold is (or should be) the scope of the lien. 1. A Ship Things
that go upon the water
18.30 There seems no reason to doubt that when the Supreme Court Act 1981
recognises the ability to bring an action in rem "in any case in which there is a maritime
lien . . . on any ship... " it is on any "ship" now recognised as such. 33 Under the Supreme
Court Act 1981 a ship "includes any description of vessel used in navigat ion", a
definition reflected in the Merchant Shipping Act 1995. 34 Hovercraft are included in the
definition for most purposes. By the Hovercraft Act 1968 the law relating to maritime
liens is specifically applied to hovercraft and property connected with h overcraft,
whether the hovercraft is on land or at sea. 35 The Secretary of State has power by order
to provide for a "shipping provision" 36 to apply or not to apply to specified things
"used, navigated or situated wholly or partly in or on water". 37 Under the provision the
power to give effect by Order in Council to any convention relating to the prevention or
control of pollution of water by ships has been extended to oil rigs and other platforms
on water.38
18.31 "Includes" in the Supreme C ourt Act 1981 indicates a non -exclusive
definition. Under the more restricted definition of the Merchant Shipping Act 1894,
section 742 ("every description of vessel used in navigation not propelled by oars"), a
hopper barge 39 and a dumb barge 40 have been held to be vessels used in navigation; a
floating landing stage, 41 a floating beacon 42 and a jet ski neither a ship nor "used in
navigation"43 have been held to fall outside the definition. In 1998 in The Von Rocks44the
Irish Supreme Court construing prov isions worded identically to the 1995 Act
concluded that a maritime dredger was a ship. It was irrelevant that it was neither self -
propelling nor had a rudder. 45
18.32 "Used in navigation" has been construed as "free and ordered movement
from one place to another" and, while agreeing with that concept, more narrowly
"transporting persons or property by water to an intended destination". 46 In The Von
Rocks rightly thought incorrect were the need (i) for carriage given the inclusion of
floating cranes and exploration vessels, and (ii) to go from one place to another (using
the example of the pleasure "messing about in boats"). It is in essence capability (and
possibly use) of movement which will satisfy the criterion —whether an oil rig is a ship
will depend on that.47
18.33 In 1981 in The Silia Sheen J. held that assets available for arrest by the
claimant in rem include "all property aboard the ship other than that which is owned by
someone other than the owner of the ship". 48 It was argued that bunkers (although owned
by the shipowners) were not part of the ship for the purposes of arrest and subsequent
sale, and that where the oil had been sold, its proceeds ought to be kept in a separate
fund and made available to any creditor who with a judgment in personam could attach
it through a charging order. 49 It was argued that if the bunkers were to be treated as part
of the ship for the purpose of being a source of the fund available to those who had
claims in rem it must mean that they were subject to a maritime lien. Sheen J. held that
the proceeds of the sale of bunkers formed part of the fund (as did all property on board
other than that not owned by the shipowner) available only to those who had issued
writs in rem. He based his decision on:
(a) the proposition that there was no reason why property of the shipowner on
board a ship should be exempt from arrest should not be available to pay the
shipowner ’s creditors;
(b) a claimant with inchoate right of a maritime lien takes the vessel as he finds her
when the lien is perfected by arrest;
(c) it may be impossible for a claimant in rem to obtain a judgment in personam —
and thereby get at the funds;
(d) if bunkers were not part of the ship on every ship sale there would always be
funds in court not available to the claimants in rem.
18.34 But, with respect, none of these grounds address the fundamental point of the
justifiability of property not subject to a lien being liable for security for its
enforceability and, subject to that enforceability, as if within the scope of the lien. The
approach would seem to be a further example of seeing the action in rem as separate
from the lien it is to enforce and allowing it a greater scope than that lien.
18.35 There is no difficulty in acce pting that the asset or its value may change
between creation and enforcement of the lien 50 (ground (a)). To rely on the "perfection"
of the inchoate rights through arrest (ground (b)) is, with respect, unsustainable because
first, a lien may be enforced without arrest, secondly arrest is only a means of interim
relief and, thirdly the physical seizure of the property does not affect the nature and right
in relation to which it is security. Grounds (c) and (d) are consequences of the limits of
the lien and provide no foundation for allowing the claimant to exercise a "lien" right on
property not subject to it. 51
18.36 If the approach in The Silia is correct the justification must lie in a policy in
making available property to which the lien has not attached in order to satisfy it.
Nothing will conceal the anomaly of enforcement on assets outside the scope of the lien,
which seems simply to flow from historical practice. It may now be as well establi shed
as it is anomalous. But it is a curious extension of "lien liability" from one asset to
another in common ownership without any real analysis of why it should be so. 52 If the
asset is not part of a ship nor so connected as to be an "appurtenance" and hence within
the lien it is difficult to see why it should come into the " in rem" reckoning.53 The ship’s
apparel and salvage claims
18.37 It is understandable that the maritime lien for salvage should attach to all
property linked to a ship that was salved. In respect of salvage services started before 1
January 1995 " appare"’ is specifically referred to (though not defined) in the Merchant
Shipping Act 1894, sections 544 and 546, providing for (i) life salvage; and (ii)
property salvage near the coasts of the United Kingdom. It clearly refers to property
closely connected with a ship such as its equipment, furniture and boats. The property is
not only available for enforceability of the lien —the lien attaches to it.
In respect of salvage services started on or after 1 January 1995 the 1894 Act
provisions are repealed and there is no equivalent reference in the replacement
legislation—the Merchant Shipping Act 1995. 54 That statute does not affect the salvor’s
maritime lien and whether a connected asset is a part of a ship for the purpose of the
lien depends on the general principles discussed above. 2. Other Property
18.38 A lien attaches to property other than the ship not as a consequence of its
connection with the ship but because independently it is subject to the lien. It follows
that cargo is liable only if the lien attaches to the cargo.
"Other property" in the context of a maritime lien is primarily cargo and freight but
in the case of salvage claims extends to wreck and anything remaining from the ship or
cargo.55 A maritime lien for freight is "consequential upon" and is absolutely dependent
on the existence of a maritime lien on the ship earning the freight. 56 Subject to the
limitation in respect of freight, the lien attaches severally to all assets liable to it 57 in
respect of the amounts chargeable thereto. (a) Freight
18.39 Subject to the need for a maritime lien on the carrying ship, such a lien may
attach to freight being earned and due at the time the lien is created 58 in respect of all
claims. A maritime lien against freight may be asserted through the service of an in rem
claim form or a warrant of arrest (or both) on the cargo or the ship. 59 The person
entitled to the freight may give bail. 60
Various principles have been established in relation to cases involving particular
types of claim but there is no reason to suppose that they are limited to those claims.
The freight liable to the maritime lien is that which is due at the moment the lien arises
as distinct from the time of arrest, 61 supporting the principle that the scope of the lien is
defined on its creation. 62 The liability extends to freight payable to a charterer63 or
payable under a subcharter. 64 This illustrates the essential nature of the lien on freight
for it depends not on entitlement to the freight but on the existence of a lien against the
ship. Once that is established the lien against the frei ght due accompanies it. 65
18.40 The lien is terminated by the payment of freight to the shipowner. There is,
therefore, no lien on advance freight paid. 66 (b) Cargo
18.41 Cargo67 is susceptible to a maritime lien in respect of claims based on
bottomry and respondentia and salvage. 68 If improperly detained, the owner is entitled
to damages.69 Bottomry and respondentia
18.42 Despite its contractual root, in bottomry when ship, cargo and freight are
charged, cargo may only be used to enforce the l ien when ship and freight are exhausted
and a lien on freight will be implied in a lien on ship and cargo. 70 Cargo may be
charged only after shipment, for only then may a master deal with it. 71 In respondentia
the cargo is the security. Salvage
18.43 In addition to cargo as such, a maritime lien for salvage attaches to flotsam
and jetsam and lagan, derelict and wreck. Flotsam, jetsam and lagan 72 all relate to cargo
lost from a ship which has sunk, derelict is a ship or cargo abandoned without hope of
recovery and with no intention in those abandoning of returning to it, 73 and wreck seems
a term which encompasses anything remaining of ship, equipment or cargo. 74
18.44 "Property" within the compass of the International Convention on Salv age
1989 is defined as "any property not permanently and intentionally attached to the shore
line and includes freight at risk" (Article 1(c)). The Convention specifically provides in
Article 20 that nothing in it shall affect the salvor’s maritime lien an d there is nothing in
the Merchant Shipping Act 1995 enacting the Convention referring to the maritime lien.
Although an action in rem will lie in respect of any claim in the nature of salvage under
the Convention or under any contract in relation to salvage services it would appear that
at the widest the maritime lien will attach only to property connected with the ship. The
extent remains arguable (see supra). 5. Enforceability of Maritime Liens Procedure
or Personification
18.45 In The Indian Grace (No. 2) Lord Steyn simply set maritime liens aside
when faced with the problem of categorising the action in rem as "procedural" rather
than as part of a process against a personified thing. Lord Steyn apparently saw
problems for the analysis in instances of liability in rem without liability in personam.
But as has been argued in Chapter 17 that is not a concept alien to the creation or
enforcement of proprietary interests or the recognition of strict liability. Once categorise
maritime liens as such essentially because of enforceability against third parties
(whether or not in personam liability is required of the shipowner) there are no
problems of inconsistency. And, further, there are no problems in the variation of scope
of enforceability as between maritime liens. Different Aspects of Enforceability
18.46 To say that a maritime lien is enforceable against an asset simply conceals
the obvious—that it is enforceable against those who have interests in that asset, at least
up to the value of that asset. There are, however, four different aspects in respect of
enforceability of claims to which a maritime lien is attached:
(i) enforceability in personam against a person connected with the asset and who
is liable in personam;
(ii) enforceability against other creditors;
(iii) enforceability against a purchaser of the asset, once the lien has become
attached;
(iv) enforceability against an asset when the owner of the asset at the time the lien
is attached is not liable on the claim in personam. (i) Enforceability of the claim “in
personam”
18.47 Such method of enforceability operates independently of the maritime li en.
While liability in personam may be in some contexts a prerequisite for the
enforceability of the lien, the lien has no relevance to the enforceability in personam as
such. Enforceability of a maritime claim by an action in personam is discussed in
Chapter 9. (ii) Enforceability against other creditors
18.48 This is a matter of priority, i.e. rivalry between claims valid in and of
themselves. A maritime lien holder is a secured creditor and, s ave for a claim based on
an earlier possessory lien, has the highest priority among secured creditors. The matter
is discussed in Chapter 23. (iii) Enforceability against purchasers
18.49 It is clear that a maritime lien is enforceable against a purchaser of the asset
whether or not the purchaser has notice of the lien or claim to which it attaches. It will
be recalled that the maritime lien attaches once the event creating it occurs (i.e. the
cause of action arises) and, therefore, sub sequent sale will not affect enforceability. 75 A
term in the contract of sale that warrants that property is sold free from maritime liens is
effective only as a contractual undertaking sounding in indemnity or damages (or
presumably repudiation in appropr iate cases). Following basic principles, it cannot
affect a lien held by a person not a party to the contract. (iv) Enforceability against
asset when the present owner is not liable “in personam”
18.50 It is this aspect which seems to cause undue problems of analysis and lead to
thoughts of personification of the property. But its presence or absence should not be
allowed to conceal the other undoubted proprietary characteristics of the lien against
purchasers and other creditors. Where exceptionally the lien is enforceable against an
owner not liable in personam (probably only as regards wages, see infra) there is
simply strict liability because of the policy underlying the claim. That leads neither to
personification of the property nor provides any obstacle to seeing the action in rem as
a procedural method of enforcement of the substantive lien. It is to be considered as a
factor in the nature of the claim (see further Chapter 17).
18.51 The issue is somewhat reduced in importance by the provision in the
Supreme Court Act 1981 that claims within section 20(2)(e) –(r) are enforceable against
a demise chartered ship provided the demise charterer would if sued be liable in
personam.76 However, it remains relevant as, first, a claimant may wish to rely on the
maritime lien as distinct from the statutory lien because of the date of its creation or for
priority purposes and, secondly, the question of liability in respect of ships in the
possession of or used by other than the owner or a demise charterer remains. The
approach is not necessarily identical in respect of (a) every context in which the issue
arises; (b) all the claims to which a maritime lien attaches. (a) The differing context s in
which the lack of personal liability of the shipowner arises
18.52 The most common circumstances raising the questions of lack of personal
liability is the chartered ship, and particularly the ship on demise charter. But there are
other circumstances, and the question of whether the owner should suffer through a lien
attaching to the ship need not receive the same answer in each context. There seem to be
three primary categories of case which may pose the issue:
(i) involving government ships;
(ii) where the owner has by agreement relinquished control of the ship (as by
charter);
(iii) where the owner has involuntarily lost control of the ship (as by requisition,
through illegal use or imposition of compulsory pilotage).
(i) Government ships
18.53 The immunity from suit of foreign states and the United Kingdom
Government in relation to the property in which it has an interest is discussed in Chapter
12. The immunity is specifically conferred on property as well as persons and,
therefore, there is no question as to whether a personal immunity prevents action in
relation to the property. However, there is uncertainty as to the extent to which or in
relation to which claims a maritime lien may attach to a ship after requisition has ended
for events occurring while it was requisitioned. In one case, concerned with a damage
lien, it was held that it would not lie, but in another that a salvage lien would lie. 77
(ii) Transfer of control by agreement
18.54 An argument in favour of enforcing a maritime lien against a chartered ship
is that agreements made by the owner that transfer control should not affect the
claimant’s security. Although demise charterers are often described as temporary
owners, this seems largely irrelevant to the point at issue in that the argument is about
the risk of the actual owner. It is much more that the creation of temporary ownership by
the owner cannot relieve him of the risk that the ship may be made subject to a maritime
lien.78 It may then be argued on the one hand that no agreement between owner and
charterer should affect a lien, or on the other that an agreement of which the claimant has
or should have notice may limit his claim. Such a limitation need not be general. It has
no relevance to claims for damage and, it may be argued, should play no part in salvage
or wages claims on policy grounds. It may have a role in claims based on masters’
disbursements, particularly today when there is almost always an ability to contact th e
owner.
(iii) Involuntary transfer
18.55 The relevance of personal liability in respect of requisitioned ships and
ships taken without consent remains a matter of general application. Compulsory
pilotage is no longer a general issue as the Pilotage Act 1987 provides that the fact that
pilotage is compulsory does not affect the liability of the owner or master for any loss
or damage caused by the ship or by the manner in which it is navigated. 79
18.56 However, the issue of lack of personal liability in the owner may still arise
in respect of compulsory pilotage if the pilot is not the employee of the owner but an
independent contractor 80 and secondly if the event creating the clai m arises in territorial
waters of a country still recognising the defence of compulsory pilotage. 81 In the latter
case it may be that there would be no liability because of the application of the foreign
law.82 (b) A general principle of shipowner’s liabil ity?
18.57 Whether personal liability of a shipowner is required for a maritime lien to
exist has been seen on occasion as a contest between the theories of "procedure" and
"personification". However, it is a matter of policy. The maritime lien has develop ed
differently in different circumstances, and it is unhelpful to subsume particular issues
under the general labels of procedure and personification. First, it is hardly arguable
that a maritime lien remains mere procedure in the light of its diverse subs tantive
characteristics. Secondly, to "personify" the ship is to conceal the balancing factors
relevant to fastening liability on a shipowner not liable in an action in personam for a
claim attracting a maritime lien. To enforce a lien against purchasers a nd to make its
holder a secured creditor indicates that it is more than procedure: but this is far from
indicating of itself that the lien should necessarily be enforced against the owner at the
time the cause of action arises where th e owner is not personally liable on the claim.
In discussing the necessity of personal liability of the shipowner, courts tend to
take a distinction between (i) bottomry and wages claims and (ii) the remainder of the
claims attracting maritime liens. Such generalisation may have followed from the
categorisation of the "maritime lien" in The Bold Buccleugh, but it should be recalled
that the issue in that case was enforceability of the lien against purchasers. And it was
within that context that collision damage was equated with bottomry, seamen’s wages
and salvage.
The concept of the owner’s authority
18.58 In The Castlegate 83 Lord Watson founded the limitation of the lien for
masters’ disbursements to those authorised by the owner on "the general principle of
maritime law" that "every proceeding in rem is in substance a proceeding against the
owner of the ship". He added that the only exception to that rule was the lien for
masters’ and seamen’s wages—basing the exception on legislative provisions. 84 He
specifically denied that collision damage was a further exception. In The Ripon City 85
Gorell Barnes J. added bottomry to seamen’s wages as an exception. He rationalised the
general principle of the maritime lien as being "aa subtraction from the absolute
property of the owner in the thin"’. It follows that the conferring of the lien must "in
some way have been derived from the owner either directly or through the acts of
persons deriving their authority from the owner". 86
18.59 Gorell Barnes J. based his reasoning on the view that apart from bottomry
and wages an action in rem must have a connection with the owner, i.e. he did not see
the ship as a defendant. But he placed the risk of a lien firmly on the owner who may
choose to hand over control of a ship to another, saying that arrangements of the owner
should not deprive the claimant of security. He compared the liability of a mortgagee
who may be subjected to liens arising after the mortgage and created by the mortgagor —
a comparison sometimes lost sight of through a curious separation of issues of
ownership from issues of encumbrances.
18.60 In 1980 in The Father Thames 87 (dealing with collision damage) Sheen J.
stressed the role of charterers as "owners pro hac vice", but, with respect, it is rather
the placing of them in that position by the owner that is the critical point. It seems
artificial to base the enforceability of a lien on the characterisation of those in control as
temporary owners when the effect of the enforceability will fall primarily on the actual
owner. Such an approach accepts the principle of personal liability but changes its
effect by ignoring its focal point—the "owner". And it denies that any importance should
be attached to the choice that the owner has in retaining or handing over control. 88
Liability of the shipowner rather than the ship as a general principle
18.61 On the authorities and the general approach in English law it seems that, just
as with the action in rem, the general basis of a maritime lien lies in the connection with
the owner rather than the ship. And this is entirely sensible as that is its effect. In effect
the interest is "against" that of the owner (or other persons interested). 89 It is limited in
its target and effect to the asset in which it exists —but provides in respect of that asset
the right of a preferred creditor.
18.62 That description applies whether or not the lien itself is limited by
connection with the owner, but in most cases a lien will not arise in circumstances
where the owner had neither control of the ship nor choice in the selection of the person
having control. There is no inconsistency in distinguishing between an action in rem and
an action in personam and at the same time limiting the action in rem by a principle
linked to the owner. The requirement of connection wi th the owner reinforces the
conclusion that a lien cannot attach to a government ship immune from a suit. Even if the
action in rem is directed at the ship it would implead the "sovereign" as the owner. 90
Secondly, if the rationalisation of The Ripon City is accepted, if there is a general
principle it is that of the necessity for the shipowner’s liability in personam modified
by voluntary transfer of control and presumed authority.
18.63 The principle of the need for shipowners’ liability applies to the li ens for
damage and masters’ disbursements and by its statement of general application (though
lacking specific authority) to salvage: wages and bottomry are admitted to lie outside it.
Within the area of operation of the principle, whether a lien will lie in respect of a
requisitioned ship or in respect of acts outside the authorised operation of a ship (such
as intentional damage), may depend on whether the emphasis is placed on the temporary
ownership, voluntary transfer of control or presumed authority. It is a question of where
the balance is to be struck between a claimant who is in no position to know the
circumstances of ownership and control and an owner who has either not surrendered
his control voluntarily or cannot be taken to have authorised a pa rticular act. On the
authorities as they stand, it seems likely that voluntary transfer of control would be seen
as the focal point with presumed authority as the additional guiding principle. (c) The
different claims and the development of the nee d for the shipowner’s liability
Damage
18.64 It is in regard to damage cases that the necessity for personal liability of the
owner has been most stressed. In 1842 in The Druid 91 Dr Lushington said that "the
liability of the ship and responsibility of the owners are convertible terms". In 1880 in
The Parlement Belge 92 it was held that no lien for collision damage could arise as
regards a government ship owned by a foreign government, for the ship “cannot be
made the means of compensation if those in charge of her were not the servants of the
then owner". In 1888 in The Tasmania93 it was held that a maritime lien would not arise
where "the injury was done by the act of someone navigating the ship not deriving his
authority from the owner". In 1893 in The Utopia94 the Privy Council held that the
argument that "the ship may be held liable though there be no liability in the owners"
was "contrary to principles of maritime law now well recognised". The Privy Council
approved of a passage taken from The Parlement Belge which a few months prior to
The Utopia had been approved by the House of Lords in The Castlegate.95 In 1922 in
The Tervaete 96 it was said that a collision lien must have its roots in the personal
liability of the owner or person for this purpose in th e position of an owner. Therefore it
could not arise in respect of a state -owned ship. In 1923 in The Sylvan Arrow 97 it was
held that where a ship had been requisitioned and later returned to its owner no lien
arose in regard to damage suffered while requisitioned as the handing over was not
voluntary. In 1979 in The Father Thames 98 Sheen J. relied on the principles of "deemed
authority"99 and "owners pro hac vice"’ 100 and followed (if a trifle erratically) through
the cases to hold that a maritime lien for collision damage attached to a ship under
demise charter. Drawing an analogy with enforceability against purchasers, the learned
judge said:
"In my judgment a similar situation arises when a vessel is on demise ch arter,
because the demise charterers are regarded as the temporary owners of the ship, or her
owners for this occasion (pro hac vice). The fact that a ship is on demise charter is
unlikely to become known to the injured party until after the ship has been arrested. No
injustice will have been done to the owners of the ship by the arrest of their property
because (a) the demise charterers will have to put up bail if they want the ship released
from arrest, and (b) the owners will have protected themselves by an indemnity clause
in the charter-party".101
The principle is, therefore, clear.
Master’s disbursements
18.65 The decision in The Castlegate established that a master has a lien for only
such disbursements as are authorised by the owner. In The Ripon City Gorell Barnes J.
held that there was a presumption that when an owner hands over possession and
control of a ship it must be presumed he gives authority to "subject the vessel to claims
in respect of which maritime liens may attach to her ar ising out of matters occurring in
the ordinary course of her use or employment". 102 The principle of personal liability of
the owner therefore underlies the lien for disbursements.
Salvage
18.66 None of the authorities relevant to the issue of the availabi lity of a maritime
lien in relation to an owner not liable in personam are concerned with a salvage lien.
Statements of general principle include it. But in 1925 The Meandros,103 concerning a
salvage claim in relation to a requisitioned ship, Lord Merrivale made the points, first,
that requisition had not removed the ownership of the ship but simply the possession and
control, and, secondly, that the owners had benefited from the services. Lord Merrivale
distinguished the case before him from The Tervaete104 in which it was held that no lien
attached for damages caused by a requisitioned ship. In the case before him, he said the
acts relied on were those of the salvor and not those of the crew o f the requisitioned
ship in relation to which no action would lie.
18.67 However, the question is surely not the basis of the liability but the liability
itself. Clearly, no action in personam would lie against the government whatever its
basis, and the question in each case was whether the sovereign immunity which
prohibits such an action operates to prevent the creation of a maritime lien. Two points
stressed by Lord Merrivale form more substantive distinctions between the two types of
claim than that on which he relied. First, in The Tervaete, the ship was owned by a
foreign government at the time of the event creating the lien and had been later sold to
the defendants to the action, whereas in The Meandros, at the equivalent time, the ship
was owned by the defendants to the action and was under requisition by the foreign
government.105 Secondly, in The Meandros, the defendants benefited from the services
whereas in The Tervaete they simply suffered from the acts of government servants.
18.68 The basis of the decision in The Tervaete was that it was impossible to
create a maritime lien as regards a ship owned by a government 106 immune from suit
for:
(i) it would implead the government even if an action in rem is against a ship; and
(ii) a maritime lien is a right to take proceedings 107 and, therefore, would not stand
with the prohibition on the taking of proceedings against a sovereign.
18.69 The latter ground was relevant to The Meandros and would have defeated
the salvor on the basis of The Ripon City that a lien required personal liability of the
owner or the voluntary surrender of control to the person liable in personam. Lord
Merrivale made no attempt to fit The Meandros into or distinguish it from any rule
applicable generally. The justification as an exception to the requirement of personal
liability is that of the benefit conferred on the owner, although in the case it was not
advanced as anything more than a general reason for upholding the lien . The Meandros
is an unsatisfactory decision but it is an authority dependent on the view that the
owner’s liability in personam is irrelevant to a maritime lien. And it is possible to
justify this in salvage because of the benefit to the owner. In the state of the authorities
this can be little more than a possible argument.
Wages
18.70 In 1892 in The Castlegate108 Lord Watson stated as a general principle that a
"proper maritime lien must have its root" in the personal liability of the shipowner.
The one exception in his view was that of wages of master and crew. It appears from
early cases that a claim for seamen’s wages lay "against the ship" 109 and this view was
followed in the nineteenth century,110 and (rejecting contentions to the contrary) in 1998
by Clarke J. in The Ever Success.111
18.71 Lord Watson’s dictum, apparently approved in The Ripon City, was based
on legislative recognition of "the rule that the lien attached to shi ps independently of any
personal obligation of the owner". This presumably referred to the change in wording
between the Merchant Seamen Act 1844, section 16, and the Merchant Shipping Act
1854, section 191. Both provisions extended to masters the rights o f seamen to recover
wages but the words in the earlier Act (of 1844) limiting the claim to one "from the
owner of any ship" were omitted in the Act of 1854. The Admiralty Court Act 1861
made no reference to the owner and by section 10 conferred jurisdictio n over seamen’s
or masters’ claims for wages "earned by him on board the ship". 112
18.72 Lord Watson based the exception of wage claims from the general rule on
"obvious considerations of public policy" —as indeed exist. And the policy, it can be
argued, outweighs the imposition on an owner of a sanction in respect of claims over
which he has no control—unlike damage and disbursements claims.
Bottomry
18.73 The classic description of a bottomry transaction is that "the advance is
made upon the credit of the ship, not upon the credit of the owner, and the owner is
never personally responsible". 113 But a prerequisite for the validity of a bottomry bond
is either that the master must have received authority from the ship or cargo owne r or
that it was impractical to contact the owner. 114 The question remains whether in any
case a charterer may be treated as the owner for the purpose of giving notice by the
master in order to create the lien. It seems clear that this could arise in the c ase of a
demise charter only where, by adapting the reasoning in damage lien cases, the demise
charterer is treated as temporary owner. It would be logical for the master to contact the
demise charterer to whom he is responsible; and the arguments advanced in damage lien
cases as to the owner permitting the creation of a lien through transfer of control would
apply equally, if not with greater force, to bottomry. 115 6. Transferability of Maritime
Liens
18.74 It is curious that, apart from the lien attaching to a bottomry claim, the
question whether maritime liens are transferable is uncertain. There are few rules either
statutory or judicial specifically related to maritime liens. In most contexts the issue
turns on applicability of general rules relating to the transferability of rights and
interests. Transferability is voluntary or involuntary. 1. Voluntary Transfer
18.75 Voluntary transfer has three different aspects: (i) assignment, (ii) subrogation
and (iii) payment of another’s claims. (i) Assignment Bottomry bonds
18.76 It is established that a maritime lien attached to a bottomry bond is
assignable.116 The commercial nature of the bottomry bond resulting from a security
transaction distinguishes it from the other claims attracting liens. Maritime liens apart
from bottomry bonds
(a) General principles of assignability
18.77 As a general rule, in English law a proprietary interest is presumptively
assignable; but it does not necessarily follow that because an interest is proprietary in
the sense of enforceability against a third party that it is assignable. Different policy
questions are raised. It has been suggested that a maritime lien is proprietary in nature,
although it has consistently been argued by others that it is procedural and remedial.
18.78 Whether it is seen as proprietary or remedial it is likely that it would be
seen, for assignment purposes, as a "chose in action" —for the lien is essentially a
method of assuring that a claim is met. It is not an interest, the enjoyment of which lies
in its continuing use—such as a charterparty. 117 Clearly, a maritime lien is more than a
bare right of litigation. It may be seen as conferring on the claim to which it attaches a
substantive quality so that the claim becomes more than such a right. In Trendtex
Trading Corporation v. Crédit Suisse ´Lord Roskill summarised the rules relating to
assignability. "The court should look at the totality of the transaction . . . If the
assignment is of a property right or interest and the cause of action is ancillary to that
right or interest or if the assignee had a genuine commercial interest in taking the
assignment and in enforcing it for his own benefit" 118 the assignment of a chose in action
is valid. It was emphasised in a later case 119 that this principle does not mean that the
assignee may not make a profit, nor that the general interest has to be that of a party to a
transaction or a creditor.
18.79 The question must, therefore, be whether the assignee has either a property
interest (as distinct from a personal right) or a genuine commercial interest. A maritime
lien is, it is suggested, a property right but it may well be argued that it is incidental to
the claim and not vice versa. In a sense it provides a contrast to the right to sue for
damages for breach of contract (i.e. a claim) which, it may be argued, is identical to the
right based on the contract itself. So it is the nature of the claim whic h should govern its
assignability and the maritime lien of itself, it is suggested, does not supply the
necessary "property" interest.
18.80 If this is right it would lead to the conclusion already established that a
bottomry bond is assignable, that a claim for disbursements and (less likely) for salvage
services may be assignable if supplied pursuant to a contract, and that wages and
damage claims are non-assignable. The general principles of assignability are always
subject to public policy exceptions an d to extensions on the "genuine commercial
interest" ground. So presumably (for example) a salvage claim, it may be contended, is
assignable to a person who had a commercial interest in a ship burdened by the claim.
18.81 Even if a claim is assignable it does not necessarily carry the maritime lien
with it. It may be said a lien was created to benefit a particular category of claimants
only. It could be argued that assignment destroys the privilege, but in answer to that
there is no reason to deprive a claimant of the value to him of a secured right if he
decides to assign it in lieu of enforcing it. It is only where the right reflected in the claim
itself is nonassignable on general principles that a maritime lien should no t be
assignable. Even ifaclaim is non-assignable the fruits of a claim (such as damages) may
remain assignable.120
(b) Maritime lien principles of assignability
18.82 The general principles relating to assignability of rights of action have been
developing with an ever increasing liberality since the nineteenth century but there has
been no discussion of contractual assignability in a maritime lien context. 121 It may well
be, therefore, that in the face of the development of general principles in favour of
assignability it would require a strong policy ground for them not to be applied to the
maritime lien. It is suggested that, insofar as the claim to which the lien is attache d is
assignable, policy is in favour of assignability of the lien on the basis that it is for the
holder of the lien to decide how best to take advantage of it. It must be admitted,
however, that the courts have insisted that the voluntary payment of wages will give the
wages lien to the person paying only where the payment is with judicial consent. It
should be noted, however, that the general principles of assignability would require that
the assignee had a genuine commercial interest.
18.83 In 1867 in The Wasp 122 Dr Lushington held that an assignment of a
shipbuilding claim prior to arrest of the ship included the "inchoate" right to proceed in
rem which would accrue after arrest. It would certainly follow that if an assignment of a
claim included a right of action in rem which had not accrued, such an assignment
would carry with it a maritime lien which is created from the time of the event creating
it. The case at least points in the direction of assignability at a time when the law took a
more limited view of assignability in general than it now does.
18.84 Another point, though less direct, may be seen in enforcement of legal
arrangements whereby, when suppliers of necessaries had a limited claim in rem,
supplies would be provided for a ship under contract with the master. Such a contract
would take place within a framework set up by the shipowner, such as a forward
contract for supply of coals from a coal supplier in a particular port. The coals would
be supplied against the master’s draft, which meant that he had made a disbursement for
which he could claim a maritime lien. Without more, this is simply ensuring that
commercial arrangements are fitted into a legal pattern providing maximum security for
suppliers. Provided the master was acting as a party to the supply and in the course of
his employment, the root of the supply arrangement is irrelevant. 123
18.85 In The Ripon City 124 the master agreed with the suppliers that they should
enforce his lien through an action in his name and apply the proceeds to meet his
liability to them. This agreement was not challenged by the owners and Gorell Barnes J.
said that he was "not required to express an opinion on this matter". But he did hold that
a settlement between the plaintiff master and the defendant owner was void as against
the suppliers because the owner had knowledge of the agreement between the master
and the supplier in regard to the enforceability of the lien. It certainly seems that this
was an assignment of the master’s claim in all but name. Such an assignment would
clearly fit within the general principle of assignability suggested above. 125
RESTRICTIONS ON ASSIGNMENT OF WAG ES
18.86 Any assignment of wages by a seaman employed on board a ship registered
in the United Kingdom before they accrue does not bind the seaman and payment to him
after such an assignment is valid. 126 Further, a seaman cannot renounce by agreement his
right to and lien for his wages, 127 or (subject to any agreement made in relation to a ship
employed on salvage services) 128 any rights in the nature of salvage. 129 These
prohibitions appear to extend to assignment. 130 (ii) Subrogation
18.87 An insurer who, under his contract of insurance, indemnifies an insured for
loss or damage is entitled to the rights and remedies of the insured in respect of that loss
or damage. The Marine Insurance Act 1906 provides that a marine insurer is
"subrogated to all the rights and remedies of the assured in and in respect of" the
subject-matter insured. 131 The subrogation is coextensive with the indemnity paid as in
the general law of insurance. 132 A maritime lien, however viewed, must fall within the
"rights and remedies" specified in the Act. (iii) Voluntary payment of claims 133
18.88 Most of the discussion on transferability of maritime liens has occurred in
the context of payment of wages by other creditors. It is now firmly established (a) that
such payment of itself does not operate as a transfer of the lien 134 but that (b) such
payment may be authorised by the court and in that event the payer is entitled to the lien
attached to the claim. 135 The practice of granting judicial approval for the p ayment has
long been followed, 136 and there seems no reason why the principle should not apply to
all maritime liens. 137 2. Involuntary Transfer (i) Bankruptcy and death
18.89 On bankruptcy all interests in the bankrupt’s assets (with some exceptions
relating to personal earnings and chattels) and rights of action, apart from those which
are "purely personal", are vested in the trustee for bankruptcy. 138 On death, all causes of
action "subsisting against or vested in" the deceased survi ve against or for the estate. 139
(ii) Statutory right to contribution
18.90 Under the Merchant Shipping Act 1995 liability of shipowners or persons
responsible for the fault of ships for loss of life or personal injury on board a ship
caused by the carrying or another ship is joint and several. 140 If damages are recovered
from one vessel which exceed the proportion reflecting the relative fault of that vessel
there is a right of contribution from any other at fault. The Act specificall y provides that
the plaintiff in such an action has "the same rights and powers as the person entitled to
sue for damages in the first instance". 141 This would appear to attach a maritime lien to
the contribution action. 7. Extinction of Maritime Liens
18.91 Apart from satisfaction of the claim to which the lien is attached there are
nine primary bases on which a lien might be destroyed. In some contexts (for example,
the stay of proceedings or giving of contractual guarantee) it is arguable that the
circumstances affecting the lien are not necessarily permanent. So although while they
exist they do affect the lien they should not be deemed to extinguish it. It is suggested
that unless there is clear waiver (implied or express) the lien should continue whil e it
may be enforced. Any action or event qualifying the claimant’s right should be construed
in the light of that right—and where appropriate seen as preventing the enforcement of
the lien rather than destroying it. 142 The maritime lien and the right to arrest
18.92 As enforcement of the lien is, if necessary, through arrest or equivalent
security the existence of the lien depends on the right to continuing security. In some
contexts (as, for example, the effect of judgment on liability) the discussion on occasion
concerns the power to arrest (see infra).
18.93 It is however essential to distinguish between the lien and its enforcement.
Clearly if there is no lien there can be no right of arrest but the converse does not
necessarily follow. So only where there is inadequate security (arrest or its equivalent)
can there be any further arrest. 143 In this context the issue is the enforcement of a
continuing lien to provide adequate security (and not the continued existence of the
lien). 1. Immunity from Suit Foreign states
18.94 The general question of sovereign immunity is discussed in Chapter 12. It is
clear that ships’ cargo and other property belonging to a foreign state and not in or
intended to be for commercial use are immune from arrest and the action in rem. It
follows that once a ship is transferred into the ownership of a foreign state for non -
commercial use no lien can be enforced. A lien created prior to the acquisition of
ownership or some other interest by the foreign government may therefore be destroyed
by that acquisition.
18.95 In The Tervaete, Bankes L.J. indicated that on acquisition of ownership by a
foreign government an existing maritime lien may lie dormant until transfer out o f the
hands of the government. In principle, there is no reason why an existing maritime lien
should be destroyed simply by acquisition by a foreign government of the property to
which it is attached—particularly in the case of the requisition.144 This is the more so
since immunity now extends only to non -commercial use. Any argument based on
affecting the value of property of a foreign government has little force in that the
government acquired the property with the lien attached. Whet her the maritime lien is
seen as a substantive interest (as is argued in this work) or a right to take proceedings,
sovereign immunity is immunity from proceedings and does not destroy the right on
which those proceedings are based. 145 The United Kingdom Government
18.96 Identical reasoning applies to ships and other property immune from suit and
arrest because of the interest of the Government of the United Kingdom. 2. Delay of Suit
18.97 This is discussed in Chapter 11. 3. Effect of Stay of Proceedings
18.98 The effect of the existence of a maritime lien to stay of proceedings because
of an arbitration or a foreign jurisdiction clause or on the grounds of forum non
conveniens turns on any consequential inability of a claimant to get at the property in
England to which his lien would attach. The general question of stay is discussed in
Chapter 12. Effect on maritime lien attached to property the target for the action
18.99 The effect of stay or dismissal of the proceedings before an English court on
the existence of a maritime lien depends on whether the lien is essentially the right to
bring such proceedings or is a substantive interest in the property. If the lien is viewe d
as procedural and, as Lord Diplock argued in The Halcyon Isle,146 dependent on the
bringing of proceedings in rem in an English court, it is difficult to escape the
conclusion that inability to bring those proceedings does affect the substance of the
right. The effect of a dismissal of proceedings 147 is in effect the converse of the issue in
The Halcyon Isle—which was the recognition of a claim as a maritime lien if
recognised as such by a foreign law. But it is but two sides of a coin and the critical
issue is whether the maritime lien is seen as a security interest of substance. If so, its
existence depends on the law linked to it as a matter of substance and not upon the
bringing or ability to bring proceedings on the claim. As Brandon J. said in The Rena
K:148 "The choice of forum for the determination of the merits of a dispute is one thing.
The right to security in respect of maritime claims under the Admiralty law of this
country is another." 149 Arbitration, foreign jurisdiction clause or forum non
conveniens stay
18.100 The Civil Jurisdiction and Judgments Act 1982, section 26, confers power
on a court to retain property arrested in proceedings later stayed or dismissed because
of submission to arbitration or to a foreign court or on grounds of forum conveniens or
to attach a condition to such stay that equivalent security be lodged. ( See Chapter 15.)
Effect on maritime lien attached to property retained
18.101 It is specifically provided by section 26(3) that subject to any rule of court
or "necessary modifications" "the same law and practice" applies to property so
retained as would apply if held for purposes of proceedings in court. The effect of that
phrase as regards a maritime lien is uncertain. It would seem to indicate that having
obtained a foreign judgment a plaintiff could enforce that judgment in relation to the
asset as if the judgment were by an English court in the proceedings initially brought
there. Such a provision would be an inroad into the principle s underlying the
predominant view in English law of the maritime lien being a jurisdictional and
procedural matter. It would mean the separation of the question of any lien from that of
the claim, and the governing of the lien issue by English law simply b ecause the asset is
in England. But there is no compelling reason why the substantive security interest
created by the claim must be adjudged by the law of the place where the asset
physically is—that is to allow the implementation of the interest to contr ol the interest
itself.150 Equivalent security
18.102 The rules relevant to alternative security 151 should apply to any security
given. So bail should be treated as the ship and any guarantee as a contractual
undertaking. 4. Provision of Security152 (a) Bail
18.103 The role of bail and, in particular, its relation to arrest is discussed in
Chapter 15. Bail takes the place of the property as the asset subject to attachment for the
claim to the extent that it reflects the value of that asset 153 but it seems unclear whether,
for the claimant, the bail is truly a substitute security.
18.104 If bail is not taken to the full value of the property, 154 as the property
(usually a ship) may be rearrested up to that value and the amount of the claim and
costs,155 a lien should remain to the extent of any difference between the amount of bail
and value of the property. It is possible to argue that having accepted bail as a substitute
the claimant should not be able to return to the ship 156—but bail should be seen as the
amount to be lodged to obtain release rather than necessarily a replacement for the ship
for the purposes of the lien.
18.105 In The Ruta157 the ship was released from arrest after provision of a P. and I.
undertaking. The question in the case was whether a claimant who had security (bail or
contractual guarantee) insufficient for the claim could nevertheless proceed in rem
against the proceeds of sale of the ship. The issue was equated with the priority initially
accorded to the claim (in this case a damage maritime lien). In other words, as David
Steel J. said, does the maritime lien survive the release from arrest 158 and, therefore,
could a ship be rearrested?
18.106 It was held that rearrest would be permitted but only "in circumstances of
oppression or unfairness". 159 While reference was made to cases dealing with arrest
after judgment (as to which see infra) it would seem that judgment was not seen as
excluding the discretion. So, whether the lien on the ship is ended by provision of
security depends on the circumstances of the case —which if the matter is seen as one of
priority (as it was in The Ruta) fits with the general discretion appropriate to that issue.
But whether such discretion is appropriate to enforceability against third parties is more
debatable— although in the end that may turn on the established equitable principle of
notice. But whatever its scope, the approach confirms a judicial discretion in the re-
establishment of a maritime lien that has no part in its initial creation ( see Chapter 23).
Limitation of liability—limitation action
18.107 Under the Convention Relating to the Limitation of Liability for Maritime
Claims 1976 (as enacted by the Merchant Shipping Act 1979 and now the Merchant
Shipping Act 1995) a ship is to be released once a fund is established in a contracting
State as specified in the Convention. The release must operate at least to prevent the
enforcement of any lien in respect of that claim up to the amount of the "alternative
security" provided. Given that the fund reflects the amount recoverable, unless for some
reason the fund is not effective or liability not limited the lien will be extinguished on
satisfaction of the claim. Liens are irrelevant to the distribution of such a fund. 160 (b)
Payment into court
18.108 On occasion, payment into court has been accepted as a security to prevent
arrest or to obtain the release of property. 161 No provision was made in the Supreme
Court Rules and there is no reference in the Civil Procedure Rules for this role for such
a payment. Its availability seems to be as established as its use is rare. 162 Release of
property from arrest will depend on an order of the cou rt. If the property is released it
would seem that the consequences applicable to release after lodging of bail will apply.
(c) Security by way of guarantee or undertaking
18.109 As is said in Chapter 15, this is a contractual agreement to pay. It is not
paid into court, although the court in its inherent jurisdiction can prevent the demanding
of excessive security. 163 It is clear that no English court would permit the claimant to
rearrest of the property or even issue another in rem claim form while the undertaking
remains of adequate value. 164 A contractual undertaking is surely a basis for preventing
or releasing from arrest 165 and at the least an undertaking not to enforce the lien insofar
as the undertaking provides adequate security. Where it is insuff icient it was confirmed
in The Ruta that there may be rearrest on the same basis as where there is inadequate
bail, i.e. "in circumstances of oppression or unfairness". But even where the security is
adequate the lien should remain until the claim is eithe r dismissed or satisfied. 166
18.110 The uncertainty of whether a maritime lien continues despite an undertaking may
well affect the practicality of sale of a ship. In the Canadian case of The Birchglen 167
shipowners failed to obtain a declaration that a li en had been extinguished by a
guarantee. The court accepted that it was premature to make that order, there necessarily
being no certainty that the undertaking would be enforceable and the lien being known to
all. 5. Bankruptcy and Liquidation
18.111 The question is whether a maritime lien attracted to a claim is affected by
the bankruptcy of an individual or the winding up of a company the owner of the
property to which the lien is attached. As a maritime lien holder is a secured creditor in
respect of the property to which the lien is attached, it should follow that the security
remains. However, problems have occurred because of the separate development of
bankruptcy and liquidation proceedings and maritime liens. Bankruptcy
18.112 By virtue of being a secured creditor, the holder of a maritime lien created
prior to a bankruptcy order is protected against its effect. 168 Winding up or liquidation
18.113 Winding up may be voluntary or compulsory. The effect of winding up on
liens generally is discussed in Chapter 17. In both types of liquidation the court has
power to control proceedings against the company. The effect of the provisions of the
Insolvency Act 1986 is as summed up in Re Aro Co. Ltd169 in relation to equivalent
provisions of the Companies Act 1948.
"A winding up order has been made, proceedings are automatically stayed but the
court may on application by the creditor allow them to be continued: while on a
voluntary winding up or where a petition has been presente d but not adjudicated on,
there is no automatic stay but the court may on application by the interested party
restrain proceedings."170
Normally a secured creditor will be allowed to proceed and, indeed, in Re Aro
Co. Ltd the Court of Appeal held that "leave will automatically be given" to the holder
of a maritime lien. 6. Agreement, Waiver and Estoppel
18.114 The maritime lien attached to a claim depends for its existence on the
continued existence of the claim. 171 Subject to statutory restrictions 172 any claim to
which a maritime lien attaches may be waived or the claimant estopped from asserting it
through the application of general principles. 173 As a consequence, the lien would fall
with the claim. There seems no reason in principle why (again subject to statutory
restrictions) a claimant should not be permitted to renounce his lien 174 or, even more
likely by his action, held to be estopped from asserting it. 175 The acceptance of payment,
compensation or security in lieu of a lien, if it be held to be freely done, could amount to
waiver 176 and the voluntary postponement of a claim might of itself affect its
enforcement against third parties arriving on the scene after the postponement and n ot
knowing of the claim.
18.115 There is a statutory prohibition through enactment of the Salvage
Convention 1989 on a salvor enforcing his maritime lien "when satisfactory security for
his claim including interest and costs has been duly tendered or provi ded".177 As the
Convention also provides that nothing in it is to affect the maritime lien, 178 the lien
continues in being until extinguished in accordance with general principles. 7.
Destruction of the Property
18.116 Subject to judicial sale, a maritime lien is essentially and exclusively
linked to the property to which it is attached. If that is destroyed the lien is
extinguished.179 8. Judgment or Arbitration Award on the Merits Judgment
18.117 Clearly once final judgment is given dismissing a claim the lien ends. It is
argued in Chapter 15 that any prohibition of arrest after judgment for a claimant
misapprehends either the role of arrest or the nature of the maritime or statutory lien to
which it is attached. The lien must surely continue until satisfaction of the claim, sale by
the court or, arguably, provision of adequate security. It is a strange principle that
terminates a lien on the success of the claim to which it is attached but prior to the
satisfaction of the claim. And a lien without the power to arrest denies a fundamental
aspect of the lien. The wording of the Civil Procedure Rules 180 apparently recognises
the anomaly in providing for arrest by a claimant in rem and "a judgment creditor in
rem"—surely not providing as a matter of procedure for that power divorced from a
lien. But again the debate seems at the wrong level —the question goes to the
continuation of the lien, and from that will flow (or not) the power to arrest. I t follows
from the possibility of continuation of the lien after judgment that the setting aside of a
judgment in default in an action in rem at the instance of a party or third party 181 simply
removes any obstacle to that continuation. 182 An arbitration award
18.118 The approach to the question of whether an action in rem will lie to enforce
an award similarly illustrates the confusion between the lien and the method of
enforcement. It was held in The Bumbesti 183 that an action to enforce an arbitration
award on a charterparty claim could not be categorised as based on the claim itself so
as to be enforceable by an action in rem under the Supreme Court Act, section 20(2)(h).
It is argued in Chapter 2 that that is to isolate the award from its context and meaning.
Apart from the points made in Chapter 2 the resulting consequence is that the statutory
lien ends with an arbitration award but not under the Civil Procedure Rules by a
judgment. Such a divergence is not only difficult to defend but must make arbi tration
less attractive. If, however, the claim submitted to arbitration attracts a maritime lien
Admiralty jurisdiction depends on the continuation of the lien (see section 20(3)). If, as
argued above that continues until satisfaction of the claim, an awa rd will not affect the
lien—nor any power of arrest. 9. Sale by the Court
18.119 The effect of sale by the court is discussed in Chapter 25. Suffice it to say
here that it extinguishes not only the lien which led to the arrest and sale but all other
liens attached to the property. 184 The liens are transferred to the fund created by the
proceeds. 8. The International Framework Relating to Maritime Liens
18.120 There have been three international attempts to create a uniform
framework, the first two not meeting with great success. The International Convention
for the Unification of Certain Rules Relating to Maritime Liens and Mortgages 1926
had, by 1 September 2000, been ratified by 28 states. The Convention of the same name
of 1967, intended to replace that of 1926, has been ratified by four states with a further
one accession and the domestic legislation of a number who have not ratified is
consistent with its provisions. 185 Many of the more powerful maritime nations such as
Japan, the United Kingdom and the United States have not ratified either Convention. A
third attempt has resulted in the acceptance on 6 May 1993 by delegates of 65 states of
the International Convention on Maritime Liens and Mortgages 1993. The Convention
came into force on 5 September 2004. As of 12 July 2004 11 states had ratified it (the
coming into force being six months after the consent of ten states, and in respect of each
consenting state three months after the expression of such consent). 186
18.121 The continued lack of success in attracting more support seems to reflect
distinctions between national laws going more to the nature of the claims to which the
lien is attached than the characteristics conferred by a "lien". Insofar as difficulty in
reaching agreement stems from the priority on maritime liens over mortgages —the
conflict between the operating and financial interests —it is questionable whether
national maritime interests are best served by the reluctance to concede that the
international list might not entirely match the domestic list. This is indicated by the lack
of consensus on conflict of laws principles governing the creation and operation of
maritime liens—with the consequences that a lien may be attached and may be lost as a
ship sails from one country to another.
18.122 The Conventions are limited in scope —justifiably given the difficulties of
obtaining agreement. As regards mortgages they encompass only provi sions for
registration, priority, transfer of ownership and rules relating to forced sale. As regards
liens the Conventions provide for maritime liens and recognise liens under national
law.187 Uncertainty remains as to the effect of the enforcement or lap se of one type of
lien on the other.
18.123 Further the provision for lapse of any lien by arrest within a specified and
short period emphasises the prime method of enforcement of the liens. 188 However, it
would have been preferable to refer to the implementation of liens as such rather than
simply the prevention of lapse. The relationship of arrest and lien would thereby be
clarified,189 for as the 1967 and 1993 Conventions stand it appears that a claimant must
arrest the ship to ensure enforcement of the lien —the acceptance of bail or guarantee in
lieu would therefore mean that on the expiry of the period the lien would lapse.
Conversely there are no provisions as to extinguishment through consent, waiver o r
acceptance of other security. 190
18.124 The latest Liens and Mortgages Convention reflects the continuing need for
agreement, but, despite expressions of favourable conditions for a large number of
ratifications, differs as regards liens little in substa nce from its predecessors. Identical
factors operate in favour and against success, but with continuing incredulity at the
inability of states to get together on the highly technical, rather narrow but critical
aspect of maritime property interests and fin ancing of the industry. Changes would be
required in English law, but hardly of great substance in the nature of claims. A radical
and welcome change would be the limited period for enforcement of liens, certainty of
priorities and uniformity in the basic framework. Issues as to the governing law would
be rendered redundant as to Convention liens and a uniform framework provided for
mortgages. The adoption would not affect the distribution of a limitation fund. 191 1. The
Convention of 1926 Mortgages
18.125 The Convention provides for the recognition of such mortgages
"hypothecations and other similar charges" as are created and registered in accordance
with the law of the contracting state to which the vessel belongs, and for their ranking in
priority immediately after the claims attracting a maritime lien. 192 Maritime liens
18.126 The Convention recognises five categories of claims attracting maritime
liens: law costs, light, harbour, tonnage and pilotage dues and taxes; claims arising out
of the contract of engagement of the masters and crew; salvage and general average
claims; collision, personal injury and cargo damage claims and masters’
disbursements.193 The Convention does not apply to vessels of war or government ships
on public service. 194 A maritime lien may attach to a ship, freight or a ship’s
accessories as defined in the Convention. 195 A claim to which limitation of liability
rules apply will not exceed the sum due under those rules. 196
18.127 A maritime lien within the Convention is enforceable against a ship "into
whatever hands it may pass" and against a chartered ship: 197 it ranks above mortgage
and any other liens recognised by national laws, and an order of priority is provided as
between claims attracting maritime liens.198 Apart from masters’ disbursements the liens
are extinguished after one year —the lien in relation to disbursements lasts only six
months.199 National law may provide for other grounds of extinction (where judicial
sale is such a ground publicity being required); may extend the periods where arrest has
not been possible in the claimant’s state; 200 and may require formalities for loans raised
on security of the ship or for the sale of cargo. 201 Other liens
18.128 National laws may recognise claims other than those listed in the
Convention as attracting liens but not so as to modify Convention priorities. 202 2. The
Convention of 1967203 Principal changes from the Convention of 1926
18.129 The Convention follows a like pattern to that of 1926 but amends and
clarifies it. In particular the ambit of the Convention is increased by provisions as to
deregistration and re-registration of a vessel to ensure the protection of mortgagees. The
most important substantive amendments are:
(1) Save for forced sale in relation to mortgages the imposition of an obligation on
each contracting State not to deregister a vessel without the consent of holders of
registered mortgages and hypotheques or to r egister a vessel which has been registered
in another such state without a certificate of deregistration;
(2) as to the claims attracting maritime liens
(i) omission of masters’ disbursement claims;
(ii) widening of "collision claims";
(iii)exclusion of claims involving nuclear activities;
(iv) substitution of provision for law costs in the context of judicial sale instead of
by a maritime lien;
(3) restriction of Convention maritime liens to sea -going vessels;
(4) permitting national law to give priority over mortgages to shipbuilders and ship
repairers’ right of retention;
(5) provision for assignment of liens;
(6) more detailed provision concerning judicial sale and distribution of proceeds;
(7) provision of an option to a party to apply the Conv ention Relating to the
Limitation of Liability of Owners of Sea Going Ships 1957. The pattern of the
Convention Mortgage and hypotheques
18.130 The Convention provides for the recognition of mortgages created and
registered in accordance with the law of the state where the ship is registered, for
requirements of the register, including priority inter se, for the law to govern the
creation, priority and enforceability, and for the need of holders of mortgages and
hypotheques to agree to deregistration of a ship. 204 Maritime liens
18.131 The Convention provides for five categories of claims attracting maritime
liens: (i) wages; (ii) dues; (iii) claims in respect of loss of life or personal injury; (iv)
claims in tort in respect of property damage occurring in direct connection with the
operation of the vessel; (v) salvage, wreck removal and general average claims.
Excluded are claims based on nuclear activities. 205 The Convention does not apply to
ships in which a state has an interest and which is appropriated to public non -
commercial service. 206 The lien attaches to a ship only but is enforceable despite any
change of ownership and may attach to a chartered ship, or a ship operated by a person
other than the owner, whether the person liable for the claim is the owner or operator. 207
18.132 Maritime liens are given priority over mortgages and any other liens
created by a state and rules are specified relating to the priority of maritime liens inter
se.208 A maritime lien is extinguished after one year unless there is an earlier arrest and
subsequent forced sale. Time does not run while a lienor is legally preven ted from
arresting a ship. 209 Publicity is required prior to a forced sale 210 and it is provided that on
such sale "all liens and other encumbrances of whatsoever nature" save a
charterparty or contract of hire of a ship shall cease to attach to the ship. 211 The
proceeds are to be distributed in accordance with the Convention priority provisions. 212
Other liens
18.133 Contracting States may grant other liens or rights of retention. Apart from
liens attached to shipbuilding and ship repairing claims, such l iens rank in priority
lower than Convention maritime liens and registered mortgages and cannot affect their
enforceability. A national law may give priority to possessory liens attached to
shipbuilding or ship repairing claims over that of mortgage, but su ch liens are
extinguished upon loss of possession by the holder of the lien. 213 A forced sale will
transfer a lien given such priority from the ship to the proceeds of sale. 214 3. The
Convention of 1993
18.134 The Convention follows the pattern of its predecessors. 215 The principal
changes from the Convention of 1967 are:
(1) as to registration—
(i) provision where a vessel is temporarily registered in a state
(ii) more detailed provisions concerning change of ownership and registration.
(2) as to the claims attracting maritime liens —
(i) the exclusion of wreck removal and general average contributions
(ii) the exclusion of damage in connection with carriage of o il or other hazardous
substances for which compensation is payable under another Convention or statutory
regime
(iii) change in the definition of tortious claims arising out of physical loss or
damage
(iv) some change in priorities as between Conventio n maritime liens
(v) provision for extinguishment of national law liens by expiry of time without
enforcement
(vi) exclusion of compensation payable under an insurance contract from effect of
subrogation of a claim attracting a maritime lien
(vii) yet more detailed provisions concerning forced sale and no exception in
respect of charterparties ceasing to attach to the vessel
(viii) making the Convention subject to any Convention providing for limitation of
liability. The pattern of the Convention Registration of vessels
18.135 The Convention applies to all sea going vessels save state -owned vessels
on government service (i) which are registered in a State party or (ii) registered
elsewhere but within the jurisdiction o f a State party.216 It is directly concerned with
mortgages, hypotheques, "registrable charges of the same nature", maritime liens and
rights of retention.
18.136 As with the 1967 Convention, the ambit of the 1993 Convention extends
beyond mortgages and liens in the sense that it sets out rules for change of registration
following change of ownership. There may be no deregistration without (i) deletion of
registered mortgages, hypotheques and charges or (ii) written consent of the holders of
the interests or (iii) where by national law deregistration is mandatory on transfer
otherwise than by voluntary sale, notice to such holders and the expiry of a period of not
less than three months. A vessel may not be re -registered without a certificate of
deregi strati on.217
18.137 Where a vessel is permitted temporarily to fly the flag of another state the
matters referred by the Convention to the state of registration are referred to the state or
registration immediately prior to the temporary registration. There must be cross
references in the registers of each state, and the temporary registration is dependent on
satisfaction of registered mortgage or written consent of their holders. On producti on of
a certificate of deregistration following forced sale, on request of the purchaser the
vessel’s right to fly the temporary flag must be revoked. 218 Registered mortgages
hypotheques and “registrable charges” 219
18.138 As with its predecessors the Conv ention’s role is restricted to provision
for recognition, enforcement and priority of such interests registered in accordance with
the law of the state of the vessel’s registration. There is recognition only where the
register is open to public inspection and contains details of the interest, its creation and
the holder. Matters of priority and effect on third parties are for the law of the state of
registration, matters of enforcement for the law of the state of enforcement. Holders of
registered interests are entitled to notice of pending deregistration because of non -
voluntary sale and of any forced sale. They are protected by the prohibition on
deregistration without deletion, consent or, where appropriate, notice. 220 The interests
will cease on forced sale. 221 “Maritime liens and right of retention”
18.139 The Convention provides for five groups of maritime lien which take
priority over all other interests including mortgages and for the recognition of other
liens created by national laws.222 A right of retention may be created by national law in
favour of shipbuilders and ship repairers, the satisfaction of the right on forced sale
ranking only after Convention maritime liens. 223
18.140 Save for claims arising from the radioactive p roperties of nuclear fuel or
radioactive waste and carriage of hazardous or noxious substances "Convention"
maritime liens attach to claims against the "owner, demise charterer, manager or
operator of the vessel" as regards the following groups —
(a) wages of the master, officers and other "members of the vessel’s complement"
in respect of employment on the vessel including repatriation costs and social security
contributions
(b) for loss of life or personal injury occurring whether on land or on water in
direct connection with the operation of the vessel
(c) "reward for the salvage of the vessel"
(d) port, canal and other waterway dues and pilotage dues
(e) tortious claims arising out of physical loss or injury caused by the operation of
the vessel "other than loss of or damage to cargo, containers and passengers’ effects
carried on the vessel". The liens follow the vessel 224
18.141 Save for any provision in national law for payment of removal of a sunken
or stranded vessel on forced sale the lien takes priority over every other claim.
Priorities between those liens in (a)–(e) are in the order listed save that salvage takes
precedence over all other liens attached prior to it. Claims within each paragraph rank
pari passu and salvage claims as between themselves in inverse order to the date of the
salvage operation giving rise to the claim. 225
18.142 The satisfaction in judicial sale of a claim arising out of a right of retention
ranks after Convention liens. 226 The assignment or subrogation of a claim secured by a
lien entails the assignment or subrogation of such a lien but claimants with maritime
liens arenot to be subrogated to compens ation payable to an owner under an insurance
contract.227
18.143 Convention liens are extinguished by forced sale or after one year unless
the vessel has been arrested or seised, thus leading to forced sale. 228 Notice of forced
sale must be given to the authority in charge of the register of the state of registration,
the registered owner, holders of registered mortgages, hypotheques or charges not
issued to bearers and to such holders of "bearer" charges if claimants have given notice
of the claims to the authority conducting the sale. 229
18.144 Forced sale will extinguish all registered mortgages save those continued
by consent and all liens and "other encumbrances of whatever nature" provided that the
sale is conducted in the state where the vessel is and in accordance with the law of that
state. The funds are paid out to meet seizure and sale costs, the claims recognised under
the Convention and any residue to the owner. The proceeds are to be made available
and freely transferable. On request by a purcha ser a certificate as to the interest -free
sale must be provided and on production of such a certificate the vessel is to be
deregistered or registered as appropriate. 230 Other liens
18.145 National law liens follow the vessel. Assignment and subrogation ar e as
for Convention liens. They rank after Convention liens, rights of retention and registered
mortgages. They are extinguished after a period of six months unless arrest or seizure
takes place within that period and leads to a forced sale or after 60 day s following
registration of a bona fide purchaser whichever period expires first. 231
1. For discussion of other claims to which a maritime lien (or its equivalent) may
be attracted also, see Chapter 2. See also for general discussion Thomas, Maritime
Liens, 1980, British Shipping Laws, Vol. 14.
2. See Supreme Court Act 1981, s.21(8). In appropriate cases a maritime lien may
lie in respect of ship, cargo and freight. But its availability in respect of freight depends
on its availability against the ship earning the freight ( see infra).
3. It is uncertain whether, as the enforcement is through the action in rem: (a)
damages can be recovered in excess of the value of the ship or fund; (b) remedies in
personam (e.g. injunction) are available. See infra.
4. See Chapters 2 and 10.
5. As to difficulties which may be caused in wages claims because of the
introduction of payment after discharge see Chapter 2.
6. See infra as to discussion on extinction (and in particular the effect of state
immunity). It has been held that property may not be arrested after judgment on liability
(see Chapter 15) but such a rule is suspect as the lien (maritime or statutory) is not
terminated by the judgment (see text infra).
7. Such an indemnity may be construed as providing protection against any
incumbrance under any law. See The Barenbels [1984] 2 Lloyd’s Rep. 388.
8. Nor by the disappointing "setting aside" of consideration of them by the H.L. in
The Indian Grace (No. 2) [1998] 1 Lloyd’s Rep. 1 (see Chapter 17).
9. (1851) 7 Moo. P.C. 267.
10. (1851) 7 Moo. P.C. 267, at p. 284. See e.g. (bottomry) Menetone v. Gibbons
(1789) 3 T.R. 267; (seamen’s wages) The Neptune (1824) 1 Hag.Adm. 227. This was
extended by statute to masters’ wages and disbursements (the Merchant Shipping Acts
1854 and 1889) and see 7 & 8 Vict. c. 112, s.16; (salvage) The Two Friends (1799) 1
C. Rob. 271.
11. It seems certain that there was a jurisdiction in personam (see e.g. The Elton
[1891] P. 265 and authorities there cited; R. v. Judge of City of London Court [1892] 1
Q.B. 273, at p. 294).
12. See e.g. Lord Fitzgerald, Lord Bramwell in The Heinrich Bjorn (1886) 11
App. Cas. 270, 278. But contrast Lord Watson in the same case (at p. 286).
13. The number of claims within Admiralty jurisdiction was increased again by the
Admiralty Court Act 1861.
14. See The La Constancia (1846) 4 Not.Cas. 512; Mansfield (1888) 4 L.Q.R. at
p. 381.
15. The Alexander Larsen (1841) W. Rob. 288.
16. The Ella A. Clarke (1863) B. & L. 32.
17. The Pacific (1864) B. & L. 243; The Troubadour (1866) L.R. 1 A. & E. 302,
affirmed by the Court of Appeal and Privy Council in The Two Ellens (1871) L.R. 3 A.
& E. 345, (1872) L.R. 4 P.C. 161 and the Court of Appeal and House of Lords in The
Heinrich Bjorn (1885) 10 P.D. 44; (1886) 11 App. Cas. 270. It has been suggested that
prior to 1840 there were claims enforceable by proceedi ngs in rem but not attracting a
“ lien” — but this is by no means settled.
18. The enforceability of claims in rem in respect of ownership, possession,
mortgage and forfeiture claims is not clear. See Chapter 19.
19. And subject to Admiralty Marshal’s co sts, costs of arrest, and some statutory
rights of harbour and other like authorities. See generally Chapter 23.
20. A claim attracting a maritime lien is enforceable against a sister ship as a
statutory lien. See The Leoborg (No. 2) [1964] 1 Lloyd’s Rep. 380.
21. See Wiswall, op. cit., p. 171. As to statutory liens, see Chapter 19.
22. [1981] A.C. 221.
23. (1851) 7 Moo. P.C. 267, at pp. 284 –285.
24. (1831) 18 Fed. Cas. 9.
25. See Abbott on Merchant Ships and Seamen (5th edn) (1827), p. 122 (where
Lord Tenterden is discussing the transaction of respondentia).
26. And not as Lord Diplock said in The Halcyon Isle a reference to French law
(see [1981] A.C. 221, at p. 232).
27. (1845) 30 Fed. Cas. 873. Accepted in 1888 as accurate with the substitute of
"right" for "special property". See Mansfield (1888) 4 L.Q.R. 379, at p. 381. Compare
The Tobago (1804) 5 C. Rob. 218 in which the right of a bottomry bond holder was
held not to bind the English captor of a French vessel —it being a right of action and not
of property. Such a holding, however, is an exception in the particular circumstances to
the binding effect of a maritime lien on third parties and was used in The Maria
Glaeser [1914] P. 218 (at p. 230) as authority est ablishing that a mortgage " ex
hypothesi" would suffer from a similar lack of enforceability of the interest.
28. See [1981] A.C. 221, at p. 235. Lord Diplock did not cite that part of the
judgment of The Bold Buccleugh which indicates that the right was s ubstantive. See
infra.
29. [1981] 2 Lloyd’s Rep. 534, at p. 537.
30. But this goes only to the identification of the asset because of its existence. So,
for example, if part of the ship was sold it would remain subject to the lien, but if
destroyed it could not.
31. Compare the creation of an "equitable lien" by contract even though the content
of the right is not then fixed (see Chapter 22) or indeed a mortgage where the amount of
the security will depend on the market value of the land, ship or other property at the
date of enforcement.
32. Section 2 1(4). Aircraft fall outside the scope of this work. The use of the wide
phrase "other property" means that there is no need to refer to the "sweeping up"
jurisdiction to investigate any question of a wider jurisdiction that specified by the Act
(as to which and as to "other charge", see Chapter 2).
33. Once a ship qualifies as such the lien may continue to attach to a part even if it
could no longer be used in navigation ("to the last plank" ) (see The Neptune (1824) 1
Hag. Adm. 227) but there will surely come a time when the whole has disappeared and
each part becomes in itself a whole. Where a ship sinks it seems preferable to regard
the lien as continuing rather than "suspended" until reflo ated (as to which see The Cargo
Ex Schiller (1877) 2 P.D. 145). For a detailed but inconclusive discussion of the
problem of definition of ships, see Summerskill, Oil Rigs: Law and Insurance (1979),
Chapter 2.
34. 1981 Act, s.24(a). 1995 Act, s.313(1). The 1995 Act substitutes "every" for
"any". See also the International Convention on Salvage 1989 (MSA 1995, Sch. 6) —any
"structure" capable of navigation excluding some platforms and offshore drilling vessels
on location (Arts 1(b), 3)—but nothing in the Convention "shall affect the salvors
maritime lien" (Art. 20). As to the Convention and liens see further infra and Chapter
2.
35. Hovercraft Act 1968, s.2(2). The law relating to maritime liens may be
excluded by Order in Council (s.2(3)). No order has yet been made. It has been held that
a ship does not include a sea plane (see Polpen Shipping Co. v. Commercial Union
Assurance Co. Ltd [1943] K.B. 161) but as a maritime lien is available against aircraft
such exclusion is unimportant in this context.
36. In statute or subordinate legislation expressly applying to ships, vessels or
boats (generally or a specified class or description) s.112(2).
37. Railway and Transport Safety Act 2003, s.112 as from 13 S eptember 2003
providing that a like but less comprehensive provision —Merchant Shipping Act 1995,
s.311 ceased to have effect.
38. Merchant Shipping (Prevention of Pollution) (Drilling Rigs and Other
Platforms) Order 2005, SI 2005/74.
39. See e.g. The Mac (1882) 7 P.D. 126.
40. See e.g. The Harlow [1922] P. 175; The Champion [1934] P. 1.
41. The Craighall [1910] P. 207.
42. The Gas Float Whitton (No. 2) [1897] A.C. 337.
43. Steedman v. Schofield [1992] 2 Lloyd’s Rep. 163—neither a "vessel" nor
"used in navigation".
44. [1998] 2 Lloyd’s Rep. 198. Seemingly applied it and The Mac (fn. 37) in
Scotland in holding a mobile offshore drilling unit within the like definition of the
Administration of Justice Act 1956, s.48 Global Marine Drilling Co. v. Triton
Holdings Ltd (23 November 1999).
45. Citing The Mac (fn. 39). But a boat which never moves (a houseboat) may or
may not be treated as part of or occupying land —not for purposes of tenancies under the
Housing Act 1988 (Chelsea Yacht and Boat Co. v. Pope [2001] 2 All E.R. 409) but
may be treated as a building for rateable purposes Cinderella Rockerfellas v. Rudd 3
February 2003 (a night club).
46. See Polpen Shipping Co. v. Commercial Assurance Co. (fn. 35); Steedman v.
Schofield (fn. 43).
47. See (in a tax context) Clark v. Perki [2000] STC 428 excluding two jack-up
rigs—the function of which was static drilling —the ability to float and be moved being
incidental (but arguably wrongly ignoring movement). Compare Cyber Sea
Technologies Inc v. Tuton Logging Co. Inc. 2002 FCT 794 (Canada Federal Court) —
(unmanned submersible used to cut timber is a ship).
48. [1981] 2 Lloyd’s Rep. 534, at p. 537. It has been held that the value of repairs
done after arrest is not subject to the lien ( St Olaf (1869) L.R. 2 A. & E. 360).
50. A question of "accession" could arise if machinery not owned by the
shipowners is attached to the ship. As to accession generally, see Bridge, Personal
Property Law, op. cit. at pp. 91, 92.
51. It may be said that assets not subject to the lien may be allowed as security for
it—but that would mean enforceability against them only if the lien could not be
enforced—and as that is limited to the property as it exists it is difficult to see any way
in which the security could be enforced (but cp the arrest of cargo to compel payment of
freight, see fn. 68).
52. Bunkers owned by a charterer liable in rem should be available in rem.
53. Bunkers will not be available as security for a mortgage where the security is
limited by contract to the ship and bunkers not owned by the shipowner are not part of
the "in rem" fund thereby emphasising the separate identity of the ship and the bunkers.
See The Eurostar [1993] 1 Lloyd’s Rep. 106. Where a charter ends the property in
bunkers owned by the charterer passes to the owner. As to the effect of a retention of
title clause in favour of the suppliers of the bunkers see The Saetta [1993] 2 Lloyd’s
Rep. 268; [1994] 1 All E.R. 851.
54. Initially the Merchant Shipping (Salvage and Pollution) Act 1994 —under the
Salvage Convention 1989 (enacted by the legislation) "other property" is to be taken
into account when assessing the salvor’s reward (Art. 13(1)(a)) see 1995 Act, Sch. 11.
As to the definition of property see p. 399.
55. Presumably as still retaining the character of the ship and cargo.
56. The Castlegate [1893] A.C. 38.
57. See e.g. The Dowthorpe (1843) 2 W. Rob. 73.
58. The Orpheus (1871) L.R. 3 A. & E. 308 (where freight due o n a homeward
voyage was liable when the event occurred on the outward voyage). In bottomry the
freight liable is that carried on the voyage which is the maritime risk ( The Staffordshire
(1872) L.R. 4 P.C. 194). The freight due under charter is attachable ( see The Salacia
(1862) Lush. 545).
59. 61 P.D. 3.6(3), 5.5. Where property has been sold by the Marshal the claim
form is to be filed at the court 3.6—and clearly the property could not be arrested. As to
other permitted methods of service of an in rem claim form see 3.6 and Chapter 10.
60. The Ringdove (1858) Swab. 310. Only when the cargo is arrested will freight
be ordered to be paid into court as a condition of release.
61. The Roecliff(damage) (1869) L.R. 2 A. & E. 363.
62. As with the ship, but as to the ship focusing on the asset subject to any later
change. "Freight due" (by definition changing) is sensibly fixed at the point of creation
of the lien.
63. See The Castlegate (disbursements) [1893] A.C. 38.
64. The Andalina (wages) (1886) L.R. 12 P.D. 1.
65. The Kaleten (1914) 30 T.L.R. 572.
66. See e.g. The Castlegate (fn. 60).
67. Cargo does not include personal effects of master, crew and passengers ( The
Willem III (1871) L.R. 3 A. & E. 487, 490) but it probably includes cargo in tow ( The
Gas Float Whitton (No. 2) [1897] A.C. 337, at p. 345).
68. Cargo does not attract the lien in a damage claim but may be arrested to compel
payment into court of freight due to the shipowner. See The Leo (1862) Lush. 444. The
extension of the law of maritime liens to hovercraft is limited to "hovercraft and
property connected with hovercraft"—the Hovercraft Act 1968, s.2(2).
69. See The Victor (1860) Lush. 72 (where it was said that there was no right to
retention of the cargo).
70. See The Dowthorpe (1843) 2 W. Rob. 73.
71. The Jonathan Goodhue (1858) Swab. 355.
72. Flotsam is goods floating on the sea after sinking, jetsam is goods cast into the
sea prior to the sinking but where the ship still sinks and lagan is goods which would be
jetsam except that because of their weight they would sink and are prevented from doing
so by a buoy (Constables case (1610) 5 Co. Rep. 106a).
73. See The Lusitania [1986] 1 All E.R. 1011; [1986] 1 Lloyd’s Rep. 132. Once
abandoned, and there being no inte ntion to return, the thing becomes a derelict and
change of mind has no effect (The Sarah Bell (1864) 4 Not. Cas. 144). Abandonment
because of force does not create a derelict ( Bradley v. Newsom [1919] A.C. 16).
74. For the purposes of the Merchant Shippi ng Act 1995 wreck "includes jetsam
flotsam lagan and derelict found in or on the shores of the sea or any tidal water" (s.255
being identical with MSA 1894, s.310(1)); "derelict" in this provision includes a sunken
vessel abandoned without hope of recovery (The Lusitania [1986] 1 All E.R. 1011;
[1986] 1 Lloyd’s Rep. 132). See further Chapter 2.
75. See The Bold Buccleugh (1851) 7 Moo. P.C. 267.
76. As to conditions of liability, see Chapter 2.
77. Compare The Tervaete [1922] P. 259 with The Meandros [1925] P. 61. See
infra.
78. Where a ship is demise chartered to a government and its use creates immunity
from suit the argument may be reversed —for the risk accompanying the charter ex
hypothesi cannot be that a maritime lien would be created.
79. Section 16 replacing the Pilotage Act 1983, s.35 (a provision equating
compulsory to non-compulsory pilotage—re-enacting the Pilotage Act 1913, s.15(1).
80. As where supplied by a pilotage authority. See The Cavendish [1993] 2
Lloyd’s Rep. 292.
81. Perhaps an unlikely event given the wide application of the Convention for the
Unification of certain rules of Law regarding Collision 1910 —and the imposition of
liability by that Convention.
83. [1893] A.C. 38.
84. See now the Merchant Shipping Act 1995, ss.39, 41 and Chapter 2.
85. [1897] P. 226.
86. Ibid., at p. 242.
87. [1979] 2 Lloyd’s Rep. 364.
88. It would be further arguable that no distinction should be drawn between
voluntary and involuntary transfer. As to t his, see The Ticonderoga (1857) Swab. 215.
89. And, it is suggested, it is not necessary for this conclusion that persons
interested will if they choose to defend the action render themselves liable in
personam. See the approach adopted by the Court of Ap peal in The Deichland [1989] 2
All E.R. 1066; [1989] 2 Lloyd’s Rep. 213 and generally Chapter 10.
90. The courts moving from "indirect" impleading (see The Tervaete [1922] P.
259) to direct impleading (see the review of the cases in The Indian Grace (No. 2) (fn.
8 at p. 4).
91. (1842) 2 W. Rob. 391.
92. (1880) 5 P.D. 197.
93. (1888) 13 P.D. 110. (1888) 13 P.D. 110. The lien depends on the damage being
caused by such an act in a physical sense by such a person, the ship being the actual
instrument causing the damage and the damage sustained by a person or property
external to the ship. See The Rama [1996] 2 Lloyd’s Rep. 281 and Chapter 2 (but as to
the latter requirement see contra Fournier v. The Ship Margaret 2 NZ High Court
(1999) LMLN 514).
94. [1893] A.C. 492.
95. [1893] A.C. 38.
96. [1922] P. 259.
97. [1923] P. 14. But see The Meandros [1925] P. 61 (salvage)—see infra.
98. [1979] 2 Lloyd’s Rep. 364.
99. See e.g. The Ripon City [1897] P. 226.
100. See e.g. The Tervaete [1922] P. 259; Baumwoll Manufactur v. Furness
[1893] A.C. 8, at p. 16.
101.[1979] 2 Lloyd’s Rep. 364, at p. 368.
102.[1897] P. 226, at p. 244.
103.[1925] P. 61. Not referred to by Lord Steyn in The Indian Grace (No. 2) (fn.
8) in citing sovereign immunity cases as supporting the view that there was a defendant
person in an action in rem.
104.[1922] P. 259.
105.See also The Sylvan Arrow [1923] P. 14 where the ship was requisitioned
from the owner. On an interlocutory issue the right to proceed against the ship was
linked to the owner’s responsibility for some person on board.
106.As to ships demise chartered to a government see fn. 75.
107.Or, as is suggested is the preferable ap proach, is an interest in relation to
which proceedings may be brought.
108.[1893] A.C. 38, 52.
109.See Wells v. Osman (1704) 2 Ld. Ray. 1044; Clay v. Sudgrave (1700) 1 Salk
33.
110.See e.g. The Edwin (1864) B. & L. 281; The Ferret (1883) 8 App. Cas. 329.
111.[1998] 2 Lloyd’s Rep. 824. As to discussion of the relevance of the wage
contract to the lien, see Chapter 2.
112.See now the Supreme Court Act 1981, s.20(2)(o). The limitation to wages
earned on board did not appear in the Administration of Justice Act 1956 (see s.1(1)
(o)) and had apparently not been strictly applied before that Act (see The Halcyon Skies
[1977] Q.B. 14).
113. Stainbank v. Shepard (1853) 13 C.B. 418.
114. Stainbank v. Fenning (1851) 11 C.B. 51, 89; The Oriental (1851) 7 Moo.
P.C. 398; The Bonapart (1853) 8 Moo. P.C. 459.
115.But see e.g. The Panama (1870) L.R. 3 P.C. 199.
116.See e.g. The Rebecca (1804) 5 C. Rob. 102, at p. 104; The Petone [1917] P.
198. There is no suggestion that it is negotiable, only that it is assignable.
117.Even a charterparty has been held to be a "chose in action". See Mangles v.
Dixon (1852) 3 H.L. Cas. 702, at p. 726.
118.[1981] 3 All E.R. 520, at p. 531. In this context "property right" appears to be
contrasted with a right essentially personal in character such as the right to damages for
personal injury.
119. Brownton Ltd v. Edward Moore Inbucon Ltd [1985] 3 All E.R. 499 (C.A.).
As to the need for both assignor and assignee to be joined where there is an agreement
to assign a legal chose see Three Rivers DC v. Bank of England [1995] 4 All E.R. 312
(C.A.).
120.See Glegg v. Bromley [1912] 3 K.B. 474.
121.In The Petone [1917] P. 198, a case concerned with the voluntary payment of
wages, Hill J. specifically said that he did not consider the result of contractual
assignment (see p. 208).
122.(1867) L.R. 1 A. & E. 367.
123.Compare The Ripon City [1897] P. 226 and The Castlegate [1893] A.C. 38
with The Orienta [1894] P. 271.
124.[1897] P. 226.
125.As to assignability under the Liens and Mortgages Conventions of 1926, 1967
and 1993, see infra.
126.Merchant Shipping Act 1995, s.34(1)(c), re -enacting statutory provisions
originally enacted in 1844.
127. Ibid., s.39.
128.The provision simply renders such an agreement valid but enforceability
remains under the control of the Admiralty Court and depends on the agreement being
equitable. See The Ganges (1869) L.R. 2 A. & E. 370.
129.The provision does not prohibit agreements for the apportionment of salvage
which if equitable will be enforced. See The Wilhelm Tell [1892] P. 337. Under the
Salvage Convention 1989 as enacted into English law apportionment between persons
in the service of the salving vessel is to be determined by the law of the flag of the
vessel, or if not carried out from a vessel the law governing the contract between the
salvor and his servants (Art. 15). See Merchant Shipping Act 1995, Part IX, Chapter I.
130. The Rosario (1866) 2 P.D. 41.
131.Section 79.
132. Yorkshire Insurance v. Nisbet Shipping Co. Ltd [1962] 2 Q.B. 330. As to the
Convention on Maritime Liens and Mortgages 1993 see infra.
133. This is not subrogation—which is a consequence of a contract of indemnity
and not of simple payment.
134. See The Petone [1917] P. 198 in which Hill J. reviewed the authorities; The
Cornelia Henrietta (1866) L.R. 1 A. & E. 51. The doctrine that payment without
judicial approval entitled the assignee to the lien has support —see e.g. The St
Lawrence (1880) L.R. 5 P.D. 250; The Tagus [1903] P. 44—but the need for such
approval seems now to be accepted, at least in England. The Scottish view is less clear.
See Clark v. Bowring 1908 S.C. 1168; Clydesdale Bank v. Walker and Bain 1926 S.C.
72; Inter Islands Exporters Ltd v. Bernia S.S. Ltd 1960 S.L.T. 21.
135. The Cornelia Henrietta (supra); The James W. Elwell [1921] P. 351, at p.
357.
136. See The Leoborg (No. 2) [1964] 1 Lloyd’s Rep. 380; The Berostar [1970] 2
Lloyd’s Rep. 402; The Vasilia [1972] 1 Lloyd’s Rep. 51.
137. It may be arguable that in regard to claims which are assignable voluntary
payment should be treated as an assignment —but there remains a distinction between
payment and agreement to assign. A truly voluntary payment to relieve hardship to crew
by an employment agency involved in hiring them when the owners defaulted in paying
wages has no effect on the maritime lien (The Turiddu [1999] 2 All E.R. (Comm.) 161).
138. See generally Insolvency Act 1986, s.283. As to exclusion of personal
actions, see Beckham v. Drake (1849) 2 H.L. Cas. 579. Rights against an insurer of
third party liability on incurring a liability are transferred to the third party (Third Party
(Rights Against Insurers) Act 1930). For discussion, see Mance [1995] LMCLQ 34.
139. Law Reform (Miscellaneous Provisions) Act 1934, s.1(1) as amended by
Administration of Justice Act 1982, s.4.
140. Section 188(1)(2) re-enacting the Maritime Convention Act 1911, ss.2, 9(4).
141. Section 189 re-enacting the Maritime Conventions Act 1911, ss.3, 9(4).
Compare the Civil Liability (Contributions) Act 1978, s.1(1) —any person liable "may
recover contribution from any other person liable".
142. It is suggested with respect that the focus on prevention of enforcement is
preferable to any concept of suspension and revival (see approach in The Birch glen (fn.
159)).
143. There is specific provision in the Civil Procedure Rules for release if
adequate security is provided or rearrest to provide adequate security. 61.6. See The
Bumbesti [1999] 2 Lloyd’s Rep. 481; the discretion to rearrest was approached on the
basis that the rule reflects previous practice and rearrest was permissible only in
circumstances of "oppression or unfairness" ( see 18.106). In The Ruta [2000] 1 Lloyd’s
Rep. 359 and infra "Judgment on Liability".
144. And even more so if the ship is demised chartered to a government. There
may be destruction through delay—even though the delay is caused by acquisition of an
interest by a sovereign.
145. But the right may be worthless because of the lack of enforceability. As to
limitations on enforceability of rights and judgments in relation to ships and cargoes
owned by foreign states see Chapters 10, 12.
146. [1981] A.C. 221.
147. If the proceedings are stayed, as distinct from dismissed, the stay may
be removed and if a stay be seen as "suspending" a lien it would presumably return
with the proceedings.
148. [1979] Q.B. 377, at p. 404.
149. A distinction supported by the recognit ion of foreign arrest and
normal prohibition of a concurrent English arrest by the claimant. See The
Christiansborg (1885) 10 P.D. 141; The Arctic Star (1985) The Times, 5 February;
The Tjaskmolen (No. 2) [1997] 2 Lloyd’s Rep. 477. As to the need for marit ime
liens enforced in England to be "English", see Chapters 2 and 26. Compare the
ability to enforce a foreign judgment in rem. (See Chapter 27.) As to arrest generally see
Chapter 15.
150. As to issues of governing law, see Chapter 26.
152. Under RSC Ord. 75 the only type of security dealt with by the rules was
bail (see r. 13), but the usual practice is to give an undertaking ( see Chapter 15). Under
CPR there is reference only to "security" sought by the claimant and the de claration
in support of an arrest warrant must specify the amount of security sought 61 PD
5.3(1)(c), see generally Chapter 15. The consequence on any lien may however continue
to differ according to the type of security taken.
153. It would appear that any termination of the lien would depend on the
lodging of bail rather than the actual release —for it would be the consequence of the
loss of the lien which would be the reason for the release, not vice versa.
154. I.e. at the moment of original arrest. See The Flora (1886) L.R. 1 A. &
E. 45, and note 142a.
155. As to the power to rearrest see 61.6; as to amount, see Chapter 15.
156. The Falk (1882) 4 Asp. M.L.C. 592. But the property remains available for
execution of a judgment as any other asset ( The Gemma [1899] P. 285).
157. [2000] 1 Lloyd’s Rep. 359.
158. There are early judicial comments considered in The Ruta answering
the question in converse ways. Compare the Wild Ranger (1863) B.&L. 84—(bail is
a substitute for the ship) with The Hew (1863) 13 W.R. 927 (both Dr Lushington); The
Christianborg (1885) 10 P.D. 141; Westminster Bank Ltd v. West of England Owners
P. and I. Assoc. Ltd (1933) 46 L.J.L.R. 101.
159. Following the approach of the C.A. to rearrest in The Arctic Star, The
Times, 5 February 1985 and to the termination of the maritime lien in the Canadian case of
The Birchglen [1996] 3 F.C. 301. See also The Tjaskmolen (No. 2) [1997] 2 Lloyd’s
Rep. 476 and Chapter 15. The general approach would see the reason for the
inadequacy (i.e. a mistake, insolvency of the surety, unforeseen procedural
complications, other claimants) as a factor in the discretion rather than in any case
exclusion from it.
160. See generally Chapter 24.
161. See e.g. The Bramarand (1968) unreported (Fo. 265); The Monaco
Philomel (1968) unreported (Fo. 414) (cited in Admiralty Practice (British Shipping
Laws, Vol.
1), McGuffie, 34d Cumulative Supp. 1975, para. 340).
162. See Civil Procedure 2D–47. As to procedure of payment into court and
payment out, see CPR 3.1(3), (5) 6A, 37.1(2).
163. See e.g. The Moschanthy [1971] 1 Lloyd’s Rep. 37; The Polo II [1977] 2
Lloyd’s Rep. 115.
164. See e.g. The Christiansborg (1885) 10 PD 141, at pp. 155–156. See also the
requirement that release be ordered upon the establishing of a limitation fund; Merchant
Shipping Act 1995, Sch. 7, Art. 13(2) and supra.
165. Property under arrest must be released through a court order or consent of all
interested parties (6 1.8(4)) but, as for bail, it would seem any l oss of lien would be
dependent on the undertaking or, in a limitation action, the provision of the fund rather
than the release (see fn. 153, supra).
166. See infra "judgment on liability". By the Merchant Shipping Act 1894, s.554,
a salvor could agree to abandon his lien in return for an agreement to abide by the
decision of the High Court and the giving of security. As the agreement bound the ship,
cargo and freight it took on proprietary characteristics but its precise effect was unclear.
It did not appear to add anything to general principles of waiver. The provision was
repealed as from 1 May 1994 by the Merchant Shipping (Registration etc.) Act 1993,
Sch. 5. Property detained by a receiver of wreck for salvage and released upon
provision of satisfactory security under the Merchant Shipping Act 1995, s.226(3) (re -
enacting Merchant Shipping Act 1894, s.552) cannot be rearrested and any lien appears
terminated (see The Lady Katherine Barham (1861) Lush. 404).
167. [1990] 3 F.C. 301 .
168. Insolvency Act 1986, s.285(3), (4). A court has power to stay actions after
presentation of the bankruptcy petition (s.285(1), (2)) but in practice will not restrain an
action by a secured creditor ( Re Evelyn [1894] 2 Q.B. 302). As to the effect of
bankruptcy proceedings on arrest see Chapter 10.
169. [1980] 1 All E.R. 1067. As to the effect of a winding up on arrest see Chapter
10.
170. Ibid., at p. 1071.
171. So, a bottomry bond given as a collateral security for a bill of exchange will
be discharged on payment of the bill. See e.g. Stainbank v. Shepard (1853) 13 C.B.
418.
172. As to restrictions on assignment and waiver, see supra.
173. See The William Money (1827) 2 Hag. Adm. 136. Cf. The Simlah (1851) 18
L.T. (O.S.) 35; The Goulandris [1927] P. 182 (security under Lloyd’s Open Form). If
the claim is paid but the moneys left in the hands of the payer the lien does not remain in
existence—the claim is paid and the claimant has decided how to deal with that paid
(see The Rainbow (1885) 5 Asp. M.L.C. 479). However, it must be paid not simply
postponed (see The Simlah (1851) 18 L.T. (O.S.) 35).
174. See The Royal Arch (1857) Swab. 269. For the effect of undue delay, see
Chapter 11 supra.
175. See e.g. The Leon Blum [1915] P. 290; The Goulandris [1927] P. 182 (but in
this case the agreement provided for security).
176. The agreement may amount to suspension or to extinguishment (see The
Goulandris (supra)) or may go only to claims in personam against the owner or
charterer (see The Chieftain (1863) B. & L. 104, 212).
177. Merchant Shipping Act 1995, Sch. 11, Art. 20.2. (See also Lloyd’s Open
Form 1995 (16).)
178. Ibid., Art. 20.1.
179. Unless construed as an equitable floating charge all type s of lien are linked to
the property in an identical way to the maritime lien. Compare the effect of the equitable
doctrine of tracing. See generally Chapter 17.
180. CPR 61.5(1).
181. As to the power to set aside such a judgment see The Selby Paradigm [2004]
2 Lloyd’s Rep. 714 (at the instance of insurers of the defendant shipowners, the insurers
having had no opportunity to put arguments not initially considered).
182. As to the recognition or enforcement of a foreign default judgment based on a
maritime lien against third parties (e.g. a purchase of a ship) see Chapter 27.
183. [1999] 2 Lloyd’s Rep. 481.
184. The English rule applies to sales by English and foreign courts. From time to
time courts express concern (rightly) about hints that a fo reign law will not recognise a
clear title. See e.g. The Cerro Colorado [1993] 1 Lloyd’s Rep. 58.
185. Contracting parties to the 1926 Convention can opt not to apply its rules in
favour of nationals of non-contracting States (Art. 14). The 1967 Conventio n (subject to
any restrictions specified in it) applies to ships of contracting and non -contracting States
(Art. 12). Neither Convention creates rights against state vessels in noncommercial
service (1926) Art. 15, (1967) Art. 12. In the 1967 Convention it is specified that
parties may reserve the right to apply the Convention relating to limitation of
shipowner’s liability (Art. 14). The 1926 Convention provides that payment of claims
shall not exceed sums due under limitation rules (Art. 7).
186. States may consent to the Convention through signature subject to and
followed by ratification approval or acceptance signature above or accession (Art. 18).
There are no provisions for substantive reservations. Subject to any restrictions
specified in the Convention it applies to ships registered in contracting States and ships
registered in a non-contracting State if within the jurisdiction of a non -contracting State
(Art. 13(1)). The Convention creates no rights against vessels owned or operated by a
state and used only on government noncommercial services (Art. 13(2)). It does not
affect any national law or international Convention concerning limitation of liability
(Art. 15).
187. The Salvage Convention 1989 provides that nothing in it shall affect the
salvor’s maritime lien—but also prohibits enforcement if alternative adequate security
is tendered or given (Art. 20).
188. There remains uncertainty in respect of the extinguishment in national law
following sale to a bona fide purchaser —for in that context there is no reference to
effect of arrest—yet just as in other contexts arrest surely would amount to enforcement
of the lien (see p. 487).
189. The Arrest Convention 1999 cures the uncertainty of the Arrest Convention
1952 because the lack of link between arrest and the power under national law to order
judicial sale (see Chapter 15). The uncertainty of the Mortgages and Liens Convention
goes to the opposite point of the dependence of the existence of a lien on arrest.
190. Compare the provision of the Salvage Convention 1989 that a salvor may not
enforce the maritime lien if satisfactory security is provided (Art. 20(2)).
191. The Convention does not affect the application of any Convention on
limitation of liability or national legislation giving effect to such a Convention (Art. 15).
In English law it is provided that distribution of the limitation fund is not to take account
of any lien. See Merchant Shipping Act 1995, Sch. 7, Part II, para. 9 and Chapter 24.
192. Article 1. There is no definition of mortgage or charge. The Convention of
1967 omits "other similar charges".
193. Article 2. The English translation makes no distinction between pilotage and
other dues but the French translation refers to "Frais de pilotage" as distinct from (e.g.)
"droits de tonnage".
194. Article 15.
195. Articles 2, 4 and 10.
196. Article 7. But cf. the Convention provisions relating to limitation of liability
whereby a limitation fund must be distributed without regard to liens see fn. 185.
198. Articles 3 and 5.
199. A r t i c l e 9 .
200. Ibid.
201. Article 11.
202. A r t i c l e 3 .
203. The Convention comes into force three months after the fifth ratification (Art.
19). By 1 September 2000 it had been ratified by Denmark, Sweden and Norway and
acceded to by Syria, Morocco and Vanuatu but this does not seem to bring the
Convention into force. Compare the wide definition of "consent" in the 1993
Convention. Finland has denounced the Convention of 1926 but has not ratified the
Convention of 1967. Despite the Convention provisions the four Scandinavian countries
have introduced its provisions into their domestic law.
204. Articles 1, 2 and 3. Article 3(2) provides a general prohibition on registration
without judicial sale or a certificate of deregistration.
205. A r t i c l e 4 .
206. Article 12(2).
207. Articles 4(1) and 7.
208. A r t i c l e 5 .
209. A r t i c l e 8 .
210. A r ti c l e 1 0 .
211. Article 11(1). The exception of the charterparty was included to avoid
penalising a mortgagee who normally will have taken assignment of charter hire as
additional security; but it could create problems in the light of the use of long -term
charterparties instead of sale as a means of ship financing. Given the exemption a
demise charterparty may cause a lien to arise which survives a sale. All mortgages and
hypotheques not assumed by the purchaser with the consent of the holders also cease to
attach to the ship (ibid.).
212. Article 11(2).
213. A r t i c l e 6 .
214. As to forced sale, see Chapter 25.
215. For a comprehensive review and comparison with the 1967 Convention see
Berlingieri [1995] LMCLQ 57.
216. Article 13. Unregistered vessels therefore fall outside it.
217. A r t i c l e 3 .
218. A r ti c l e 1 6 .
219. The Convention provisions are concerned only with registered charges —
"registrable" therefore simply excludes the non -registrable but of itself confers no
benefit.
220. Articles 1 –3.
221. Article 12(1).
222. Articles 4, 5.
223. Articles 7, 12(4).
224. A r t i c l e 8 .
225. A r t i c l e 5 .
226. Article 12(4).
227. Article 10—the proviso, it is said ensuring that the insurance compensation
remains available to the mortgagee.
229. Article 11.
230. Article 12. Unlike the Convention of 1967 there is no exception for
charterparties.
231. A r t i c l e 6 .
Chapter 19
Statutory Liens in Admiralty 1. The Action "in Rem" and Statutory Liens in
Admiralty
19.1 The claims enforceable by action in rem are those listed or referred to in the
Supreme Court Act 1981, section 20. They are discussed in Chapter 2. As said in
Chapter 17, the label "statutory liens" when used in an Admiralty context is used as
equivalent to "statutory rights in rem", and to some the latter is the more accurate
description of the right. The present legislative framework provides for three categories
of claim which, apart from the maritime lien, attract the action in rem and a fourth
category which arguably does so. These are claims based on:
(i) s.20(2)(e)–(r) 1 ;
(ii) s.20(2)(a), (b), (c) and (s);
(iii) future jurisdiction (s.20(1)(d)); and
(iv) (arguably) the sweeping up clause (s.20(1)(c)).
Itwilbesuggestedthatitisonlyinrespectof(i)thatthelabel“statutorylien”preciselyapplies.Thelegislativedevelopmentofandjudicialcommentsonthenature
of the action in rem have helped to confuse its substantive and procedural security
aspects. These should be disentangled. 2. Nature of the "Statutory Lien" 1. Origins
and Early Development
19.2 The statutory lien in Admiralty followed recognition of the concept of
"maritime lien". Statutory liens in Admiralty originate in the Admiralty Court Acts 1840
and 1861, both of which provided that the High Court of Admiralty "shal l have
jurisdiction" over a number of claims. The Act of 1861, section 35, further specifically
provided that the jurisdiction conferred by that Act "may be exercised either by
proceedings in rem or by proceedings in personam". The statutory liens in Admiralty
are based and depend on the availability of the action in rem. Admiralty Court Acts
1840 and 1861 and maritime liens
19.3 The two statutes were judicially construed to mean that unless a maritime lien
existed in relation to the claim prior to the statute or was expressly conferred by the
statute, the rights conferred were simply to enforce a claim by Admiralty proceedings
and in particular by proceedings in rem.2 As a result, the limited effect these and later
statutes had as regards maritime liens was to include within claims for attracting a
maritime lien (a) damage or salvage arising within the body of a county, 3 (b) wages
claims on special contracts, 4 (c) (possibly) claims for life salvage and property damage
under statutory provisions, 5 and (d) (possibly) claims for personal injury and loss of
life.6 Apart from these claims the provisions in the Acts that the Admiralty Court "shall
have jurisdiction... " meant just that. Statutory extensions of the action "in rem"
between 1861 and 1925
19.4 The availability of the action in rem in Admiralty was increased through
enlarging Admiralty jurisdiction in the Maritime Conventions Act 1911 (maritime
personal injury or wrongful death); the Merchant Shipping (Stevedores and Trimmers)
Act 1911 (claims by such persons); and the Administration of Justice Act 1920 (in
relation to foreign shipowner defendants, charterparties, carriage of goods and torts in
respect of goods carried). The Supreme Court of Judicature (Consolidation) Act 1925
further extended the scope of proceedings in rem by removing territorial restrictions
from claims for necessaries and salvage and towage. 2. The Supreme Court Act 1981
—the Present Framework for the Action "in Rem"
19.5 The Administration of Justice Act 1956 greatly extended the territorial
jurisdiction, added to the number of claims for which proceedings in rem will lie and
formed the foundation for the present framework set out in the Supreme Court Act 1981
(as amended). That (discussed in Chapter 2) clearly distinguishes the exercise of the
Admiralty jurisdiction through (a) an action in personam, (b) a maritime lien and (c) an
action in rem apart from a maritime lien. 7
19.6 As to the framework of the 1981 Act:
(a) statutory provisions have settled a dispute once relevant whether Admiralty
jurisdiction includes claims attracting proceedings in rem which are neither statutorily
based nor maritime liens. At most, these claims related to pilotage, towage and
necessaries8 and all are included in the claims now statutorily set out;
(b) the statute creates two categories of specific heads of claims which wh ether or
not they attract a maritime lien attract the action in rem—those specified in s.20(2)(a),
(b), (c) and (s) and those specified in s.20(2)(e) –(r)9;
(c) the claims attracting maritime liens are included in the list of heads of claims
for which an action in rem may be brought. It is clear that a claimant whose claim
attracts a maritime lien may base his claim on the provision relating to maritime lien
(s.21(3)) and also, when the claim is within the provision, on that relating to the ac tion
in rem apart from the maritime lien (s.21(4)) 10;
(d) there are catch-all provisions including jurisdiction (other than the claims
specified) allocated after the coming into force of the Act or (arguably) exercised
immediately prior to the Act. These provisions do not specify any particular claims. 3.
"The Statutory Lien in Admiralty"—Is It to Be Equated with the Action "in Rem"?
19.7 Some take the view that all claims apart from maritime liens enforceable by
an action in rem should be lumped together simply as "actions in rem".11 But this fails
(a)toindicate the substantive proprietary and priority characteristics conferred by the
action on those claims to which it is attached, and (b) to distinguish between the two
statutory categories of claim referred to in 2(b) above. (a) The action "in rem"—
substance and procedure
19.8 In Chapters 17 and 18 emphasis is given to the importance of the decision by
the House of Lords in The Indian Grace (No. 2) 12 in the analysis of the action in rem. It
legally removes the fiction of the defendant in such an action being the ship. As
contended earlier that is one step towards the separation of the interest being enforced
and the method of enforcement.
19.9 In Chapter 18 it was suggested that a maritime lien confers a right of
substance rather than procedure. Much of the supporting reasoning applies to the
bringing of action in rem in respect of an otherwise non -proprietary claim. In The
Heinrich Bjorn, delivering the judgment of the Court of Appeal, Fry L.J. drew a
distinction between a maritime lien and the right to the exercise of Admiralty
jurisdiction. He contrasted arrest as a means of giving effect to a pre -existent lien (the
maritime lien) and arrest as "one of several alternative modes of procedure". In the first
case, he said, the proceeding related back to the first moment the lien attached: in the
second it did not. And further, he added, arrest to enforce a maritime lien can only be of
the ship involved, but the lien does travel with the ship: arrest in other contexts could be
of other assets of the defendant but is available only against the property of the person
liable in personam.13
19.10 However, it is now clear that almost all claims not being maritime liens
attracting an action in rem will be effective against a purchaser 14 and that arrest can
only be of the ship involved 15 or (within the parameters of the Supreme Court Act 1981,
section 2 1(4)), a sister ship. Further, the "relation back" of the maritime lien goes to the
moment of creation of the "lien" rather than any unique enforceability against
purchasers, and the issue of an in rem claim form means that (whether the claim att racts
a maritime lien or not) the claimant becomes a secured creditor. 16 The distinction,
therefore, is not between a "maritime lien" in the sense of a substantive right 17 and a
right to benefit from proceedings (a procedural right) but between rights of s ubstance.
Whether all claims attracting an action in rem should be classified together as having
identical characteristics is a question to be debated; but, with enforcement against third
parties and the holder having the status of secured creditor, the basic right can hardly be
described as simply "one of several alternative modes of procedure". It is proprietary.
19.11 This is not to say that the action in rem as such is not also a method of
procedure. It is the means of asserting an interest —that interest being a maritime lien, a
statutory lien or a proprietary right itself. The error is to equate the statutory lien with
the method of enforcement—an error, particularly liable to occur whe n the lien is
created by the issue of the in rem claim form. In that context the same act creates the
interest as initiates the enforcement process.
19.12 Further, the proprietary interest created by the lien does not mean that the
cause of action being enforced by a writ in rem is any different to that enforced by a
writ in personam simply because of the method of enforcement. 18 The basis of the claim
is identical, the distinctions stemming from the interest (the lien) recognised by English
law as enforceable (or available to be created), its method of enforceability and any
difference in the identity of the parties. 19 (b) The nature of the claims attracting the
action "in rem"
19.13 To the extent to which a claim enforceable by an action in rem asserts a
proprietary interest, the action in rem may be said to be primarily procedural. However,
the majority of claims assertable by an action in rem have no proprietary characteristic
in themselves. It is the availability of the action in rem which transposes a claim against
the person liable in personam in the narrow sense of direct responsibility for the act of
which complaint is made to a claim enforceable against third parties. 20 On the other
hand, claims in respect of ownership and mortgage (and possibly possession) are
"proprietary", quite apart from the availability of the action in rem in the sense that
enforceability of the interest the basis of the claim is not restricted to the person
creating the relationship. The differing nature of these claims and their characteristics
are acknowledged in the priority context, for enforceability against purchasers is treated
separately to enforceability against creditors, and mortgage is given a priority ranking
of its own (see Chapter 23).
19.14 More generally it is arguable that ownership and possession claims not
involving claims otherwise within Admiralty jurisdiction raise questions different in
kind to other claims attracting actions in rem. So a question of title may raise different
policy issues in its enforceability against other claimants than a creditor’s claim.
Finally, claims based on forfeiture or condemnation of a ship or goods carried in a ship,
restoration of a ship or goods after seizure or for droits of Admiralty seem to involve
considerations apart from liability in a purely civil suit. They focus on public aspects of
Admiralty jurisdiction far removed from the majority of claims in respect of which the
jurisdiction exists. (i) Claims in section 20(2)(e) —(r)—the proprietary role of the
action "in rem"
19.15 As to those claims falling within section 20(2)(e) –(r), i.e. (claims not
generally proprietary)21 the Act specifies the characteristics of the right i n setting out the
framework for bringing the action in rem. The substantive interest created by the
availability of the action in rem is, therefore, made clear by the rules governing the
bringing of it. These rules were discussed in Chapter 2. It is clear that the claims within
section 20(2)(e)–(r) have common proprietary characteristics flowing from attracting
the action in rem in respect of the property at which the action is aimed (preferred
creditor status, enforceability against purchasers and, in the case of demise charters,
owners at the time of creation of the claim). These characteristics are sufficiently
distinct from those attaching to claims not attracting the action in rem to justify a
grouping to indicate that substantive proprietary nature. It is therefore appropriate that
they should be labelled "statutory liens in Admiralty". (ii) Claims in section 20(2)(a),
(b), (c) and (s)—the procedural role of the action "in rem"
19.16 In contrast to the provisions relating to section 20(2)(e) –(r) the Act does not
specify the framework for bringing the action in rem in respect of claims included in
section 20(2)(a), (b), (c) and (s). In relation to claims based on ownership, possession,
mortgage, forfeiture, condemnation or droits in Admiralty the Act provides simply that
proceedings in rem against the ship involved will lie. It therefore makes enforceability
depend on, first, the nature of the action in rem of itself and, secondly, the nature of the
claim. Further, apart from mortgage claims, there is little if any guidance in judicial
decisions as to the priority of these claims as against others or as between themselves.
Conversely, as to mortgages, it is certain that they have a higher priori ty than other
claims attracting an action in rem but not qualifying as maritime liens.
19.17 The common characteristics between the group of claims set out in section
20(2)(e)–(r) and those set out in section 20(2)(a), (b), (c) and (s) is the availability of
the action in rem. But in regard to the latter first, the action is available in some cases
against property other than a ship; secondly, the action is available only agains t the
property in question and not against any "sister" property; thirdly, any required link
between liability in personam and the relevant property is left to be gathered from the
nature of the action in rem itself; finally, at least one claim—mortgage—is given a
distinct priority. It seems, therefore, that the availability of the action in rem for claims
in section 20(2)(e)–(r) has undeniable substantive consequences, but that in its
availability in relation to claims within section 20(2)(a), (b) and (c) it fulfils much more
of a procedural role.
19.18 In the case of mortgage claims its primary role seems to be to provide
arrest and the availability of judicial sale to enforce a claim by nature proprietary and
having a high priority.
19.19 A claim for ownership or possession will depend in substance on the legal
foundation for the claim, and, again, its scope of enforceability will depend on the claim
rather than the availability of the action in rem. So in The "Ocean Enterprise"22 the
claimants in rem asserted that a sale purportedly on behalf of the claimants was void for
fraud and lack of authority and hence a further sale was also void. Further, the relevance
of the sale by the court as a remedy is somewhat peripheral to such claims—a claimant
(as in The "Ocean Enterprise")23 will be primarily seeking a declaration of ownership
or acquisition of possession through a specific order, and taking advantage of the arrest
process to ensure that the ship is available when the order is made. 24
19.20 Claims based on forfeiture, condemnation or droits of Admiralty are of a
completely different order to all other claims for which the action in rem is available
and, once again, enforceability will primarily depend on the nature of the claim.
19.21 In these groups, therefore, the twin primary characteristics of the action in
rem (the preferred creditor status and enforceability against purchasers) established in
relation to claims in section 20(1)(e) –(r) are of doubtful application except as
characteristics of the claims themselves. (iii) Claims within section 20(1)(c) —past
jurisdiction
19.22 It is arguable that on the statutory wording this head of jurisdiction applies
only to actions in personam—the 1981 Act, it is said, specifying that the in rem
jurisdiction is exclusively there set out. 25 However, as indicated in Chapter 2 it all
depends on which provision of the Act takes precedence —that conferring in rem
jurisdiction or the sweeping up clause. Given the presenc e of the provision, there seems
just as strong an argument for inclusion of "in rem" jurisdiction in the latter given its
presence and the importance of such jurisdiction to Admiralty claims.
19.23 Assuming the inclusion of "in rem" jurisdiction within the clause the claims
are those which attracted the action in rem prior to 1 November 1875. Their proprietary
characteristics depend, therefore, on first, the nature of the claim and, secondly, the
effect of the action in rem, both of which questions must be the subject of enquiry in
each particular case. In the Despina GK Sheen J. based the ability to issue a writ in rem
in respect of a foreign judgment on this ground. He held specifically that the beneficiary
of a foreign judgment in rem did not have a maritime lien but that:
"A judgment creditor who has obtained a final judgment against a shipowner by
proceeding in rem in a foreign Admiralty Court can bring an action in rem in this Court
against that ship to enforce the decree of the foreign Court if that is necessary to
complete the execution of that judgment, provided that the ship is the property of the
judgment debtor at the time when she is arrested." 26
19.24 In this case the claim itself (action on a judgment) is not proprietary. The
approach of the learned judge meant that the "action in rem" was equated (almost) with
the action in rem as specified in section 2 1(4) of the Supreme Court Act. It is not clear
why the property must remain in the judgment debtor until arrest rather than the issue of
in rem proceedings. Such a requirement adds one more complication in differentiating
between the characteristics of the action in rem depending on the claim to which it
attaches; and it emphasises that each claim in this category must be scrutinised to
discover its own characteristics. 4. Summary (i) The need for precise analysis
19.25 Legislative development of maritime claims has ignored the distinction
between the provision of (i) a positive security interest created through the availabilit y
of an action in rem; and (ii) a method of enforcement of a security interest already held
or that created by the issue of the writ in rem through the action in rem and hence the
availability of arrest and (consequently) sale by the court. Judicial commen t has largely
been restricted to an overall classification of maritime and statutory liens as
"procedural" or "substantive". But this, with respect, simply confuses the interest the
basis of the claim with the method of enforcement.
19.26 In effect, the over-generalised and rather bland labels of substance and
procedure tend to conceal the hard analysis required to link claim and action in rem and
to conclude whether there is any "lien" characteristic. Even if a claim (such as
ownership or mortgage) is proprietary, the availability of judicial sale (through arrest)
may add another proprietary dimension. But the extent to which it does confer a
proprietary characteristic needs examination in the context of each claim and each
characteristic. So, for example, the effect of the availability of an action in rem (if any)
on enforceability and priority of the claim to enforce an equitable mortgage or a claim
for possession between demise and sub -demise charterer remains uncertain.
Examination of the link between the nature of a claim and effect of the availability of the
action in rem should follow the recognition that the defendant in an action in rem no less
than an action in personam is a person. (ii) The need for legislative clarification (a)
Priority
19.27 It is suggested that the legislative aim must be to ensure that the availability
of an action in rem carries common characteristics whatever the claim, and that apart
from any clearly indicated exceptions it is the action in rem (and not the claim) which
rules enforceability and priority in rem. The presently established exceptions are the
maritime lien and the mortgage. In both cases it is internationally recognised that of
themselves they form priority categories and have "in rem" enforceability
characteristics of their own. Uncertainty exists as to the unregistered ship mortgage
recognised in English law but not universally. Because of the lack of international
recognition it is arguable that it should be treated as having no mo re powerful priority
or enforceability than a statutory lien. The issue is discussed in Chapter 23. (b)
Enforceability against third parties
19.28 The uncertainty of the scope of the action in rem in relation to claims for
which it is provided but not defined 27 goes to enforceability against third parties. First,
it would appear that historically it was available only in relation to property, the
owners (or those asserting ownership) of which are liable in personam 28—it would
take statutory provisions to render a ship liable if personal liability lay with, for
example, a charterer. However, as the court controls the imposition of sale it is arguable
that an action in rem could be brought in relation to a possession dis pute between a
charterer by demise and a subcharterer by demise. So long as the aim is the availability
of a ship for an order of restoration of possession such an action would not offend
against basic principles. However, any action resulting in liability being attached to a
ship so as to affect the owner’s interest would be contrary to principle.
19.29 It is suggested that, subject to limitations on the use of sale in such a case,
the enforceability of any action in rem against purchasers should be placed on an
identical footing with that applicable to claims under section 20(2)(e) –(r), i.e. that once
a claim form is issued the "lien" is good against purchasers. Save for a mortgage claim
(for which there are established special rules) the priority in rem of all claims in rem
not being maritime liens is and should be equal ( see Chapter 23).
19.30 While the action in rem governs enforceability and priority in rem it is the
claim which governs enforceability and priority in personam. However, in personam
liability will not affect in rem liability (except insofar as the latter depends on it) in
respect of the "in rem" fund (i.e. the "res" or the proceeds of its sale). 3. Creation of
the Lien
19.31 The statutory lien is created on the issue of the claim form. As from that
time, therefore, the claimant is a secured creditor and can enforce his right against
purchasers and subject to other creditors. The modern authorities supporting these
propositions were concerned with claims now falli ng within the Supreme Court Act,
section 2 1(4). However, there is no reason why in this aspect there should be any
distinction between that category of claim and that making up section 2 1(2) or, subject
to any rule applicable to a particular claim, any c laims enforceable "in rem" within
section 20(1)(c) and (d).
19.32 The claims under section 2 1(4) may be enforced by an action in rem
provided there are specified links between the person liable in personam and the ship
against which proceedings are taken. The claims under section 2 1(2) and probably any
claim enforceable "in rem" under section 20(1)(c) may be enforced by an action in rem
against the relevant property without the need for such conditions. Any difference
between the two categories is, therefore, limited to the conditions required for the
bringing of the action and the assets subject to the lien. There is no reason for any
distinction as to creation. 4. Assets Subject to the Lien 1. Claims under Section
21(4)
19.33 The statutory lien under section 2 1(4) is exercisable against the ship
involved or a "sister ship" within section 21(4)(b). The ambit of the "sister ship" clause
is discussed in Chapter 10. By statutory wording, cargo and freight are excluded as
assets to which the lien may attach. Yet claims in relation to salvage include life and
property salvage under any contract relating to salvage service and in the nature of
salvage generally. The amendments by the Merchant Shipping (Salvage and Pollution)
Act 1994 have extended the scope of the salvage action in rem in respect of ships
without necessarily increasing the scope of the maritime lien. Insofar as cargo is liable
in rem otherwise than through a maritime lien it can only be by virtue of jurisdiction
which the Admiralty Court had immediately prior to the Supreme Court Act 1981. 29
Likewise, the extension of Admiralty jurisdiction in damage claims to personal injury
and loss of life presumably rendered freight liable to the lien. Again, if either claim
does not attract a maritime lien it is to the jurisdiction prior to the Act that a claimant
must look for any lien against freight. 30 And it is arguable that no "in rem" jurisdiction
is preserved by the 1981 Act.
19.34 In both The Silia31 and The Eurostar32 Sheen J. held that bunkers owned by
the shipowner were an asset subject to the in rem liability of the ship—apparently on
the ground that they were property on the ship of the owner of the ship. Unless, however,
they were to be considered part of the ship or the express phraseology limiting the ambit
of section 2 1(4) to ships is ignored it is difficult to see how any liability can attach in
respect of claims brought under that provision. 33 2. Claims under Section 21(2) or
Section 20(1)(C)
19.35 The lien is limited to the property relevant to the claim, thereby
encompassing cargo and freight. By section 20 claims for forfeiture and condemnation
and droits of Admiralty extend to goods but claims in relation to ownership, possession
and mortgage are limited by the statutory wording to ships. So the point made in relation
to bunkers in the context of claims under section 2 1(4) applies. 5. Transferability
19.36 Identical considerations apply as apply to maritime liens. These
considerations are discussed in Chapter 18. 6. Termination
19.37 In addition to the factors relevant to the termination of a maritime lien, as the
validity of the lien depends on the issu e of an in rem claim form its existence depends
on either:
(i) the continued validity of the claim form or, at least, the proceedings consequent
on its issue, or
(ii) the establishment of the claim through a conclusion of the proceedings in the
plaintiff’s favour.
The need for continuing proceedings does not mean that if proceedings properly
commenced are stayed and property arrested is maintained under arrest that the "lien" is
extinguished. It is provided by section 26 of the Civil Jurisdiction and Ju dgments Act
1982 that the same "law and practice" applies as if the property is held for proceedings
in the English court. 34 Further, for the lien to be effective, as for the maritime lien it must
continue to exist in the property until a claim is satisfie d—and therefore may be
continued or revived by the power of rearrest (as to which see Chapter 18). 7. The
Legal Consequences of Attracting the Action "in Rem "—a Summary
19.38 The legal effect of a claim attracting the action in rem is that:
(i) The action in rem confers a right and a remedy in addition to any available
against the defendant "in personam" (i.e. by reason of the defendant’s responsibility for
acts the basis of the claim).
(ii) Inherent in the action in rem
(a) the ship, cargo or freight subject to it is liable to arrest prior to the hearing on
the merits;
(b) jurisdiction on the merits is founded (i) outside the European jurisdiction
regimes on service of an in rem claim form, on the property, or on a defendant or his
solicitor or filed in the registry or by any method permitted by the Civil Procedure
Rules (see 61 PD 3.6), or it is suggested, arrest without such service; or (ii) within one
of the regimes, on the establishment of a jurisdiction base and arguably compliance with
the "in rem" service rules procedurally to satisfy English law.
(iii) If a lien is created it arises on the bringing of the action in rem (i.e. the issue
of the claim form).
(iv) The enforceability of the lien against property other than the ship and against
persons other than the shipowner liable in personam depends on the nature of the claim.
(a) If the claim is within (s.20(2)(e)–(r)35 it would appear that the lien:
(1) (unless within s.20(1)(c)) will not attach to cargo or freight, the rules for
jurisdiction based on s.20(1)(c) depending on the rules applicable to each claim;
(2) will attach to a ship relevant to the claim provided that the person liable in
personam 36 was at the time the cause of action arose the owner, charterer or in
possession or control at the time of the act the basis of the claim and is at the issue of
the claim form either owner or demise charterer;
(3) will attach to the ship relevant to the claim and is enforceable against a
purchaser as it is enforceable against the owner;
(4)will be enforceable against a ship other than that relevant to the claim if, on the
issue of the claim form, that ship is own ed by theperson who was owner, charterer or in
possession or control of the relevant ship at the time the action arose and that person is
liable in personam;
(5) is enforceable against unsecured creditors (whenever the creditor’s claim
arises) but (apart from any personal liability because of representations made), is
subject to (i) mortgages arising before the issue of the claim form, (ii) maritime liens
whenever created, (iii)possessory liens created before the issue of the claim form. 37 It
is clear that the effect of the action in rem on these claims confers on them common
proprietary characteristics: for want of a better phrase they are "statutory liens in
Admiralty".
(b) If the claim is within s.20(2)(a)(b)(c) or (s) (i.e. relates to ownership,
possession, or mortgage of a ship or forfeiture or condemnation of a ship or goods or
droits of Admiralty) or is within s.20(1)(c)(d) (i.e. past or future in rem jurisdiction
having its roots outside the Act)
(1) ship, cargo or freight as relevant to the claim may be arrested; but
(2) the enforceability by virtue of the action in rem against persons not liable in
personam, purchasers and other creditors is uncertain.
(v) Any lien created is extinguished on destruction of the ship or other property.
(vi) A ship or other property arrested as part of an action in rem enforcing the lien
is subject to judicial sale and the proceeds available to the claimants in rem.
(vii) It is uncertain whether, as the enforcement is through the action in rem,
(a) recovery of damages can be in excess of the value of the ship, property or fund;
(b) remedies in personam (e.g. injunction) are available. 38
(viii) Judicial sale as a step in enforcement of any lien extinguishes the lien and
transfers it to the proceeds.
(ix) Any lien may be extinguished by laches, waiver or satisfaction and possibly
the lodging of bail or payment into court to the extent to which the bail or payment
reflects the value of the ship or other property.
(x) The claims attracting the lien may be extinguished by rules relating to effluxion
of time, or the withdrawal or nullity of proceedings, and hence the lien would also be
extinguished.
1. As amended by the Merchant Shipping (Salvage and Pollution) Act 1994, Sch.
2, para. 6 (s.20(2)(j)) (applicable to salvage services started on or after 1 January
1995).
2. See e.g. The Heinrich Bjorn (1866) 11 App. Cas. 270; The Mary Ann (1865)
L.R. 1 A. & E. 8; The Sara (1889) 14 App. Cas. 209; Currie v. M’Knight [1897] A.C.
97; The Halcyon Skies [1977] Q.B. 14.
3. Admiralty Court Act 1840, s.6; 1861, s.7.
4. See The Halcyon Skies [1977] Q.B. 14; The Ever Success [1998] 2 Lloyd’s
Rep. 824 (jurisdiction extended by the Admiralty Court Act 1861, s.10).
5. See the Admiralty Court Act 1861, s.9 and Chapter 2. These provisions “ceased
to have effect” from 1 January 1995 (Merchant Shipping (Salvage and Pollution) Act
1994, Sch. 2, para. 1(2)). As to life salvage see Chapters 2, 18.
6. See Chapter 2. It was held that the jurisdictional provisions relating to masters’
disbursements (Admiralty Court Act 1861, s.10) did not confer a maritime lien ( The
Sara (1889), s.1). As to the continued operation of prior statutory provisions defining
the ambit of claims see infra and Chapter 1.
7. The distinction is blurred by the statutory linking of "other charge" to maritime
lien as a basis for an action in rem. The phrase has been construed to mean such charge
as is in English law statutorily equated with a maritime lien or under foreign law is
similar to an English maritime lien. The Acrux [1965] P. 391; The St Merriel [1963] P.
247 and Chapter 2.
8. Necessaries are not specifically referred to but seem to be covered by s.20(2)
(m) and (n).
9. As to s.20(2)(j) see fn 1. Section 20(2)(e) is extended by s.20(5) ( see Chapter
2).
10. Although only one ship will ultimately be available for enforcement of the
claim (s.21(8)). See generally Chapters 10, 15.
11. It is an easy step from such a description to "statutory rights in rem" (see e.g.
Price, op. cit., at p. 92). But so to label the availability of an action in rem is to
generalise still further in that there may well be rights in rem apart from actions in rem
(e.g. any common law property right). And it unnecessarily introduces an overused and
uncertain concept (see, for example, of confusion through the use of "in rem" in more
than one sense, The Angel Bell [1979] 2 Lloyd’s Rep. 491). As to the use of r ight in rem
in EC Regulation 44/200 1 and the Brussels and Lugano Conventions see Chapter 5.
12. [1998] 1 Lloyd’s Rep. 1.
13. (1885) 10 P.D. 44, at p. 54.
14. The Monica S [1968] P. 741. But it is not clear that, for example, an equitable
mortgagee would be able to enforce his claim against a bona fide purchaser or whether
forfeiture can operate against a bona fide purchaser ( see Chapters 2 and 23).
15. The Beldis [1936] P. 51; Supreme Court Act 1981, s.21(8) (as to claims within
s.20(2)(e)–(r)).
16. Re Aro Co. Ltd [1980] Ch. 196. Because of the historical distinctions drawn
between maritime and statutory liens the same cause of action may relate to a maritime
lien or a statutory lien. So a salvage claim under the 1989 Convention wi ll only attract a
maritime lien if it does so in accordance with principles established outside that
Convention. As to categorisation of the claims see generally Chapter 2.
17. See Chapter 18 for argument that a maritime lien is a substantive right.
18. So an action in rem cannot be brought in England between the same parties in
relation to the same claim in respect of which an enforceable judgment in an action in
personam has been given in a court of another part of the UK or an overseas country
(Civil Jurisdiction and Judgments Act 1982, s.34 as construed in The Indian Grace (No.
2) [1998] 1 Lloyd’s Rep. 1).
19. See e.g. The Varna (No. 2) [1994] 2 Lloyd’s Rep. 41.
20. I.e. other creditors and purchasers and where the demise charterer is liable in
personam, the present owner.
21. But not exclusively non-proprietary, e.g. a claim to enforce a demise
charterparty would be within s.20(2)(h), a bottomry claim is the subject of s.20(2)(r)
and a salvage claim of s.20(2)(j).
22. [1997] 1 Lloyd’s Rep. 449.
23. In that case with rectification of the register a further remedy ( see Chapter 25).
24. Although claims as between co-owner may be for accounts or damages. See
e.g. The Vanessa Ann [1985] 1 Lloyd’s Rep. 549.
25. See The Antonis P. Lemos [1984] 1 Lloyd’s Rep. 464 (C.A.).
26. [1982] 2 Lloyd’s Rep. 555, at p. 559.
27. I.e. claims within ss.21(2), 20(1)(c) and 20(1)(d).
28. See Shell Oil Co. v. The Ship Lastrigoni [1974–75] 131 C.L.R. 1 (H.C. of
Australia).
29. Through an application of s.20(1)(c), as to which see supra.
30. No such question can arise in regard to wages (see The Halcyon Skies [1977]
Q.B. 14) or masters’ wages or disbursements, Admiralty jurisdiction in rem being co-
extensive with maritime liens. See generally Chapter2.
31. [1981] 2 Lloyd’s Rep. 534.
32. [1993] 1 Lloyd’s Rep. 106.
33. The point was not taken in either case.
34. So it would appear that in an English court, English law would continue to
govern enforceability against the security . See further Chapter 25.
35. For an argument that a claim within s.20(2)(d) (damage received by a ship) can
found an action in rem and hence a statutory lien on the same basis, see Chapter 2.
36. I.e. would if sued successfully be liable in personam. See The St Merriel
[1963] P. 247; The St Elefterio [1957] P. 179, at p. 185. And see s.21(7).
37. And possibly whenever created. As to priorities between statutory liens, see
Chapter 23.
38. See Chapters 2 and 10.
Chapter 20
Possessory Liens 1. Nature of a Possessory Lien

20.1 The doyen of the lien in a general domestic context of English law is the most
restricted. It is a common law right conferring by contract, usage or statute a right of
retention of a chattel already in the lien holder’s possession. 1 Such a right of retention is
a common feature of many legal systems. 2
20.2 Whether possession has been acquired prior to the purported exercise of a
lien is a matter of fact—so whether a ship is in the possession of repairers or repairs
are undertaken simply as a matter of contract depends on the circumstances. 3 There is no
ability to acquire possession to create the lien and no right to enforce the right through
action unless the possession is wrongly terminated 4 or is surrendered to allow sale by
the court in an action in rem. There is no right of self help to ensure that possession is
not lost—such as by removing equipment from a ship. 5 It is arguable that a claim for an
excessive amount prevents creation of the lien. 6
20.3 While a possessory lien may be created by contract or statute, there is not
infrequently a critical issue of contractual construction as to the type of "lien" created.
Simply to use the word "lien" invokes uncertainty 7 and may be construed as not only not
creating a "lien" based on possession but as a floating charge fastening on a particular
asset only on a specified event. The issues of construction are discussed in Chapter 22.
2. Assets Subject to the Lien
20.4 As a general policy, the lien extends only to chattels retained in possession.
Unless provided by contract or statute, the lien does not extend to any charge for or
expenses in keeping the chattel. 8 However, the lien may extend to expenditure before
any demand for possession necessary for the preservation of a chattel from deterioration
and thus benefiting the owner. 9
20.5 The common law possessory lien based on usage and the power to create a
possessory lien by contract apply in the maritime as in any other context. In addition
there are liens dependent on particular commercial relationships. First, let us consider
common law principles. 3. Common Law Possessory Liens (Applying to but Not
Created Primarily in Maritime Law)
20.6 The common law divides the right of retention into (a) general and (b)
particular liens. A general lien gives a claimant the right to retain any chattel of the
person against whom the claim is made until the claim is met, there being no necessary
connection between claim and chattel. A particular lien is a right to retain a chattel until
all claims made in respect of it are met. 1. Generally Applicable Principles (i)
Commencement of the lien
20.7 The possessory lien depends understandably enough on possession. 10 A court
cannot declare that the lien may continue even though possession ceases, 11 although a
power of sale in addition to the lien will not transform the right into an equitable charge.
It remains what it is. 12 The lien will normally fasten on to the chattel at the time when
the claim arises. So a lien dependent on work done will generally not arise until that
work is done. However, it has been held that for priority p urposes a lien in favour of a
shiprepairer arises at the moment the ship goes to the yard. 13 A contractual right to a
possessory lien
20.8 A contract providing for a possessory lien creates a contractual right arising
at the moment of contract. So, as a matter of priority of contractual rights, the right to the
lien incorporated in a trading contract entered into before the appointment of a receiver
will take priority over rights consequent on that appointment, even tho ugh possession is
gained after it. 14 However, the lien itself could be created only on the retention of
possession pursuant to the lien. 15 (ii) Enforceability of the lien
20.9 At its least a possessory lien means the inability of the creator of the lien to
get his hands on the asset. 16 Apart from this, insofar as rules of enforceability against
creditors or purchasers can be identified, they have been worked out in relation to the
categories of "general" or "particular" liens or attached to a specific type of lien. While,
therefore, it is arguable that such rules apply generally, their roots cannot be ignored. (a)
Against creditors or liquidator
20.10 It seems that a possessory lien created by a company would not be a
registrable charge within the Companies Act 1985 17 but that it is within the Companies
Act 1989 intended to replace the earlier provisions ( see Chapter 22). If so and it is not
registered it is void as against a liquidator or any creditors. Its enforceability may be
affected by the making of an administration order under the Insolvency Act 1986 ( see
infra).
20.11 The passive ability to retain possession is exercisable against uns ecured
creditors whether the interests are created prior to or after the lien. Its enforceability
against secured creditors presents complex questions of priority ( see Chapters 17, 23).
(b) Against third parties other than creditors
Successors in title
20.12 The effect of a possessory lien against third parties other than creditors is
uncertain but it should be enforceable against successors in title to the party subject to
the lien.18 If it is not good against successors its ability is greatly restricted a nd it is
surprising that there remains any doubt. The question is further considered in Chapter
23.
Present owners
20.13 In some cases, a possessory lien may be enforceable against an owner of a
chattel to which the lien has attached because of the act of some other person such as a
bailee or an agent. 19 However, enforceability against parties whose interests were
established prior to the creation of the lien raises considerable problems for inves tors
and owners. The basis of such enforceability must lie in the overriding need of all
interested in a chattel in maintaining it (as is the reason underlying the priority of a
salvor’s lien, see Chapter 23), or in implied authority to the creator of the lien to
encumber a chattel with the lien. 20 It carries serious consequences for the financier
whose security is clearly affected, and it may be that different enforceability rules
should apply to different liens much as they do in res pect of the liens peculiar to
maritime law. The general question will be considered in Chapter 23 in the context of
priorities, but particular rules relating to possessory liens are referred to in the present
chapter.
Enforcement of the lien
20.14 The lien is enforced by denying possession to the person against whom it is
claimed, that denial being on the basis of the lien. It will be a matter of construction
whether the retention of possession is on the basis of another legal relationship or the
lien. So a bailee may be claiming possession by reason of the bailment or by virtue of
an asserted lien arising from the failure of the owner to meet the terms of the bailment.
Where a possessory lien is created by contract, the event creating the basis for the lien
will either be specified by the contract or simply flow from adaptation of the common
law lien. (c) The effect of insolvency
Company insolvency
20.15 A possessory lien held over company assets may be affected by the making
of an administration order in regard to the winding up of a company. It is expressly
provided that save for a lien on documents giving title to property no lien or right to
retain possession of any books, papers or other records of the company is enforceable
insofar as it would deny possession once a company enters administration, goes into
liquidation or a provisional liquidator is appointed. 21
20.16 Further, it has been held that a possessory lien is a "security" which requires
the consent of an administrator or permission of the court to enforce while a company is
in administration. 22 Enforcement for this purpose is simply the assertion of the lien
against the owner seeking possession, but it is open to the administrator or court
refusing consent or leave to impose terms and maintain th e right or, save for the
surrendering of possession, the provision of alternative security. Concern was
expressed by members of the Court of Appeal in so holding at the practical
consequences of the decision. It was emphasised that the obligation to seek l eave arose
only when steps were taken to enforce the lien and there was a claim by the
administrator. Further it was said that a lien holder would not be taking such steps if
there was a retention (or detention) while proceedings were brought to obtain lea ve.
That, it was thought, would meet the problem of immediate loss of security.
20.17 It would appear, however, that apart from any lien on books or company
records a possessory lien of itself would not be affected by a winding up order whether
the lien is asserted before or after the order. On the surface at any rate it does not fall
within an "attachment" rendered void by the order or a "proceeding" which after the
order is made may be pursued only by the leave of the court. 23
Individual insolvency
20.18 The assertion of a possessory lien is arguably within "action, execution or
other legal process" which may be stayed by the court once bankruptcy proceedings are
pending or an individual adjudged bankrupt. 24 Even if it is within that phrase the holder
of the lien is certainly a "secured creditor" and hence free to "enforce" the security. 25
(iii) Termination of the lien (a) Loss of possession
20.19 Save where the possession has been fraudulently obtained to defeat the lien,
the lien ceases on loss of possession. 26 As a general rule possession regained after
being surrendered otherwise than by reason of fraud will not resurrect the lien. But in an
early case it was held that an insurance broker’s lien on a policy did revive on
possession being regained. 27 (b) Taking of action inconsistent with a possessory lien
20.20 A general lien will be lost through assertion of a particular lien, 28 or the
giving of credit terms or the taking of security for payment at a future date. 29 Any lien
may be waived by contract or conduct. It will be a matter of construction as to whether
waiver has occurred. 30
20.21 In 1983 in A v. B31 it was held that solicitors who arrested a ship of clients
to enforce a claim for costs (and thereby discharged themsel ves) did not waive their
possessory lien on the client’s papers. Some two months after the arrest the solicitors
entered a default judgment against the clients. Leggatt J. held that the arrest was "part of
a process of enforcement and is to be distinguishe d from such contractual arrangements
as a solicitor might in the ordinary course make for the provision of his client of a
security that can properly be regarded and given in substitution for the lien". With
respect, arrest is no more a process of enforcem ent than the possessory lien itself. It is a
method of ensuring that an asset in which there is a security right is available for the
exercise of that right. However, it is dubious whether as a method of security inherently
available in an action on the merits it should be thought inconsistent with a different type
of security on different assets rooted in a distinct principle. 32 (c) Tender of amount due 33
20.22 The lien will be extinguished on tender or payment of the amount due. 2.
General Liens
20.23 A general lien may be created by usage, contract or statute. (a) By usage
Claims to which a general lien may attach
20.24 General liens have been established "by usage" in favour of bankers, factors,
insurance brokers 34 (by City of London custom), stockbrokers and solicitors. 35 There
are examples of such liens being upheld for other trades, the most relevant to maritime
law being packers and wharfingers. 36 It appears that wharfingers would have to rely on
local usage. There is no general lien by usage in favour of warehousekeepers. 37
Enforceability of the lien
20.25 The enforceability of such liens against third parties has not been worked out
satisfactorily. Such liens fall within the general principles of enforceability in respect of
unsecured creditors and (probably) successors in title to the owner. 38 It has been said
that no general lien created by usage by a non -owner is enforceable against the owner 39
but this may not be universally applied. 40 Enforceability against secured creditors in
personam and in rem will be considered in Chapter 23 in the context of priorities. (b)
By contract
20.26 A contract can create a general lien. It can provide for the assets to which
the lien is to attach, for the claims for which it is to exist and for its enforceability
against third parties. Whether a contractual provision creates a general or particular lien
is a matter of construction. A contractual term simpl y creating "a general lien" without
more will import the general uncertainty as to its enforceability against present owners,
and any term ought therefore to include specific provision for enforceability of the lien
against the holder of a prior interest. In Chellaram v. Butlers Warehousing and
Distribution Ltd 41 a general lien was created by a contract between a corporation
"consolidating" goods into containers and an air transport undertaking. It was held that
this lien could be enforced against the owner of the goods in respect of a claim against
the undertaking, provided it was shown that the owner knew that the goods would be
handled by the "consolidating" company on the contractual terms (including the lien)
under which it acted in regard to the transp ort undertaking.42 (c) By statute
20.27 Statute may create a general lien as it may create any other interest. 43
Lacking statutory definition of characteristics it will import such general characteristics
discussed above as are established as making up such a lien. 3. Particular Liens
20.28 A particular lien may be created by usage, contract or statute. (a) By usage
Claims to which a particular lien attaches
20.29 Unlike the general lien, particular liens a t common law have not been
recognised with respect to specified trades and professions. They are based more
broadly on acts done in a context which, it has been held, entitled those who have done
the acts to security. They are recognised:
(i) in favour of those who have no choice in accepting chattels for services (such
as the common carrier);
(ii) for work done on a chattel in pursuance of a contract;
(iii) in favour of an agent for work done for his principal;
(iv) a solicitor’s lien over papers relevant to a case; and
(v) (it would seem) as a lien on goods by a co -owner in respect of expenses to be
met in relation to those goods by other co-owners.
(i) Obligation to accept goods
20.30 This applies to common carriers and inn keepers.44 It has little relevance in
the maritime area even as regards carriers. A common carrier is a person who holds
himself out as a carrier of goods for hire and does not reserve the right to deal only with
those whom he chooses—"he will carry for hire so long as he has room the goods of all
persons indifferently who send goods to be carried". 45 This rarely applies to sea
carriers. Apart from Acts of God or the Queen’s enemies, inherent vice or fault of the
consignor, a common carrier is responsible f or the loss of or damage to the goods.
Because of his inability to refuse to act, 46 the carrier is given a lien on the goods carried
for the payment of the hire. It has been held that in general a private carrier has no such
lien,47 but, conversely, it is well established that a shipowner has a possessory lien for
freight and contributions to general average ( see infra).
(ii) Work done on a chattel
20.31 The work must be done in pursuance of a contract. There is no lien for work
done without instruction,48 and at common law there is no lien for storage or salvage. Of
particular relevance in the maritime area is the possessory lien of a person who does
work on a ship—the shiprepairer or shipbuilder.
The Shiprepairer/Shipbuilder
20.32 This is simply an application of the common law possessory lien conferred
for work on a chattel, and there is no distinction for this purpose, for example, between
repair of a ship or a car. Following general principles the shiprepairer has a lien in
respect of the cost of materials supplied and work done, together with any incidental
costs or expenses. But, unless provided by contract, the lien does not extend to damages
for breach of contract nor to any charge for keeping the ship. 49
(iii)Agent’s lien
20.33 An agent has a particular lien on goods of his principal in respect of all
claims against his principal arising out of his employment, save where it would be
inconsistent with the contract of employment. 50 Except as regards negotiable instruments
and money, the lien is enforceable against third parties only to the extent that the
principal has such a lien.
(iv) Solicitor’s lien
20.34 A solicitor has a general possessory lien for costs in relation to client’s
property (including papers relevant to litigation or arbitration). (See Chapter 23.)
(v) Co-owner’s lien
20.35 In 1824 in Holderness v. Shackels51 it was recognised that a co-owner of
cargo has a possessory lien on the cargo for disbursements of the ship to be met by other
co-owners—and that this was an application of the common law lien. Enforceability of
the lien
20.36 The general area of uncertainty about the extent of enforceability against
third parties applies to the particular as to the general lien. Particular liens are certainly
enforceable against unsecured creditors and probably successors in title to the person
subject to the lien. 52 Enforceability against secured creditors in personam and in rem
will be considered in Chapter 23 in the general context of priorities.
20.37 The rules relating to enforceability against owners where the possession
creating the lien is surrendered to the claimant by a non -owner seem clearer than for
general liens. A common carrier can assert his lien against an owner of goods. 53 A
person asserting a lien for work done can assert it if the giving of possession to him was
with the express authority of the owner or that authority could be implied from th e
owner’s dealings. 54 Given that authority, any agreement between hirer (or bailee) and
owner that the former cannot create a lien is ineffective so far as a lien holder without
notice of the prohibition is concerned. 55 (b) By contract
20.38 The creation of a particular lien by contract raises the same issues as the
creation of a general lien by contract. Any contractual creation of a "lien", simply by the
use of the term, it may be argued, adapts the rules discussed under "usage". It would
follow that for enforceability against an owner it is enough if surrender of possession to
the lien holder by a hirer can be seen as fitting with the nature of the transaction between
owner and hirer. Actual knowledge by the owner of the terms of the arrangement under
which possession is given up is not necessary. (c) By statute
20.39 Statute may create a particular lien. So, for example, under the Sale of
Goods Act 1979 an unpaid vendor of goods has a right of retention of those goods 56 and
is given a right of resale. Under the Solicitors Act 1974 a charging order may be made
for a solicitor’s costs on any property preserved or recovered through his efforts ( see
Chapter 23). 4. Maritime Possessory Liens Maritime and Other Possessory Liens
20.40 It should be stressed again that all the liens established at common law are
applicable, where appropriate, in the maritime area. So most general liens and the
particular lien for work done are relevant —particularly that of the shiprepairer,
shipbuilder and co-owner (see supra). Their principles do not depend on any particular
maritime application but there is a danger that that application is considered apart from
the basic common law framework of which it is part. 57 Any study of liens in maritime
law must be in the context of the general national law as well as the sometimes unique
characteristics of maritime law.
20.41 Under general common law principles a possessory lien may be created by
contract and is commonly created in charterparties in favo ur of the shipowner for
demurrage and for all monies due under the charter. Whether it is so created and
whether or not any other security interest is created is a matter of construction and is
discussed in Chapter 22. Claims to Which Maritime Possessory Liens Attach by
Usage
20.42 Maritime possessory liens based on common law principles either of
relationship or work done are:
(i) shipowner’s claim for freight —lien on cargo;
(ii) shipowners’ claim for general average contributions —lien on cargo;
(iii)salvor’s claim—lien on ship and cargo;
These are all particular liens and, unlike the common law variety, are focused on
specific commercial relationships. Enforceability, Enforcement and Termination
20.43 Enforceability insofar as it can be generalised is based on that of the
common law particular possessory lien. Apart from specific provisions the liens would
appear enforceable against successors in title and all unsecured creditors. Priority in
relation to in personam and in rem secured creditors will be examined in Chapter 23.
The general principles of enforcement and termination apply —enforcement through
denial of possession and termination through loss of possession, action inconsistent with
the lien and tender of the amount due (see supra). Insofar as enforceability against an
owner who did not create the lien goes, it seems clear that the possessory liens based on
salvage and general average are enforceable, even if the act creating them was done
without the express authority of the owners. 58 Enforcement of the lien
20.44 The lien is enforced by retaining possession of the cargo, ship or policy and
denying that possession to the owner on the owner’s demand —in the case of cargo
normally refusing to discharge it until freight is paid. Following general principles the
denial of possession must be based on the lien and not on any other legal relationship —
as, for example, a bailment of the goods. 59 The lien on cargo is enforceable only when
the freight is payable—and that depends on the contract. 60 So if under a charterparty
freight in respect of any part of the cargo is not payable until discharge of all, there can
be no lien unless after the "discharge" the cargo remains in the possession of the owner
—as where it is discharged into a barge. 61 The Individual Liens (i) The shipowner ’s
lien on cargo for freight
20.45 The lien attaches for freight payable contemporaneously with delivery of
cargo. It attaches to all goods consigned in the same ship on the same voyage to the
same consignee. It is a well-established lien but curiously often treated quite apart from
other liens in maritime matters. However, the cargo lien is part of the "lien" framework
in maritime law and in particular it raises priority problems with any other lien which
may attach to the cargo. It is also frequently the subject of a contract, and where this is
so it will be a matter of construction as to the extent to which the contract defines the
ambit of the lien—it may create an interest in substitution for the common law lien or
simply provide the framework for its operation. Termination
20.46 Following general principles, the shipowner’s lien is lost on surrender of
possession.62 It will be lost if goods are surrendered to a salvor. 63 (ii) Shipowner ’s lien
for average contributions (a) General average
20.47 The shipowner has a lien on cargo for general average contributions. Further —
subject to contract—a shipowner has a duty to exercise the lien in favour of th ose
entitled to claim contribution. 64 If the cargo is released against security the security
requested must be reasonable. 65 (b) Particular average
20.48 The lien may be exercised in relation to expenditure caused by the saving of
articles owned by a number of owners or one owner only. The reasoning underlying the
general average lien applies to cases where action is taken in respect of less than the
whole.66 The lien extends in favour of an agent. 67 (iii) The salvor ’s lien
20.49 While there is no lien for salvage in general at common law, common law
will recognise a possessory lien of a salvor in Admiralty. 68 There is little authority,
presumably because of the maritime lien conferred on salvors. Once Admiralty and
common law jurisdictions ceased to be in opposition to each other the inherently more
powerful lien took over. It is uncertain to what extent, if at all, the Lloyd’s Open Form
has, by providing for security inconsistent with a possessory lien, superseded that lien
in respect of salvage.69 Agent’s lien
20.50 A ship’s agent who has expended money and done work in discharging cargo
to save property at risk but without any express authority from the owner has a lien on
the cargo for his expenses on an analogy with salvage and general average.70 Claims to
Which Maritime Possessory Liens Attach by Statute
20.51
(1) Broker’s claims for premiums, charges and balance of account under the
Marine Insurance Act 1906—lien on policies.
(2) Harbour authorities under statutes governing such authorities —lien on (or right
of detention of) ship. (i) The broker’s lien
20.52 The Marine Insurance Act 1906, section 53(2) provides:
"Unless otherwise agreed, the broker has, as agai nst the assured, a lien upon the
policy for the amount of the premium and his charges in respect of effecting the policy;
and, where he has dealt with the person who employs him as a principal, he has also a
lien on the policy in respect of any balance on any insurance account which may be due
to him from such person, unless when the debt was incurred he had reason to believe
that such person was only an agent."
By the provision, therefore, a broker may have a "general" lien in respect of his
insurance account on a policy against an assured where he deals with a principal, 71 and,
in any event, a particular lien in respect of expenses connected with the policy. The lien
is a possessory lien on the policy, but the broker "who has a lien is normally entitled
when he collects under the policy to apply the proceeds collected in discharge of the
debt that was protected by the lien". 72
20.53 The broker’s lien may cause problems in ship financing for it interposes a
right between a ship financier’s endeavour to secure security through insurance policies
in respect of a ship and the funds representing that security. The broker’s undertaking
intended to protect a financier through imposing obligations on the broker to hold the
benefit of the policies for the financier will normally make any such obligation subject
to the lien on the particular policies. If the undertaking amounts to a contract 73 this will
replace the lien imposed by statute and confine the lien on a policy to premiums unpaid
on that policy.74 Enforceability
20.54 The broker’s lien originates at common law, and on general principles is,
therefore, enforceable against all, provided possession is retained. It has been held that
the broker’s general lien is not enforceable in relation to p olicies affected by an agent
for debts owed by that agent—"he cannot pledge the property of (a) principal to another
with whom he is dealing for his own private debt". 75 However, if the broker reasonably
believes that he is dealing with a principal the lien will be upheld. 76 (ii) Harbour and
other public authorities Statutory rights of detention
20.55 Such rights are conferred on port and harbour authorities 77 under statute to
enforce payment of dues, 78 safety provisions,79 oil pollution measures80 and payment of
removal of wreck 81 and by a number of statutory instruments for non -compliance with
regulations.82 The power to detain is often accompanied by the ability to sell as a final
measure of enforcement and to this extent the right resembles an active lien rather than
the possessory passive lien. 83 Need to detain
20.56 The authority must detain if reliance is to be placed on the statutory power.
In The Charger84 the harbour authority sought to recover dock dues but did not detain
the ship. It was held that in a priority conflict such a claim could not rank higher than a
claim for necessaries—that being the head of claim under which the claimant had to
bring the case if statutory powers had not been used .85 The power of sale
20.57 In The Ousel 86 it was held that a harbour authority could exercise its
statutory right to sell even if the ship had been arrested, and that the sale would confer a
title free from encumbrances. Any lien claim would be transferred to the proceeds. In
1968 in The Queen of the South 87 Brandon J. examined the nature of the statutory right
of detention and concluded that it was a statutory possessory lien, despite th e ability to
seize and despite the added power to sell. He likened this power to the mortgagee’s
power of sale, but also held that the authority could seize a ship under arrest. The sale
was ordered in the best interests of all the claimants.
20.58 In 1985 in The Freightline One 88 Sheen J. held that no order of the court
was required to preserve a statutory right of detention in favour of the Port of London
Authority as against other claims. An order granting leave to intervene did preserve the
right to be paid, and the consent to an order of sale pendente lite had been on the basis
that the authority would not suffer financially. There would, however, have to be clear
words for the right to detain and sale to be exercisable after judicial sale.
20.59 From these two authorities it would appear that although an authority must
assert its claim through possession, it may do so through seizure and, once seized, it may
sell under its statutory powers or may ask the court to sell. In either case the pur chaser
will obtain a title free from other claims, and those other claims will be transferred to
the proceeds, and it appears that the authority will have priority over liens and other
claims against the proceeds. 89 In The Freightline One Sheen J., applying The Queen of
the South, directed that charges due to the Port of London Authority be paid out of a
fund raised by sale of a ship pendente lite. The payment was to be made as part of the
arrest and sale expenses and in priority to pilotage and mortgagee c laimants. In 1993 in
The Blitz90 Sheen J. held that on sale by a harbour authority the purchaser obtained a
title free from encumbrances including a registered mortgage. The risk of non -payment
should fall on the unwise lender rather than the authority or an innocent purchaser. 91
There was no obligation on either party to the sale to investigate the mortgage register.
The effect of company insolvency
20.60 The implementation of the statutory right may be affected by the entry of a
company into administration as provided by the Insolvency Act 1986 ( see 17.31). To
achieve the purpose of the administration (to make the company a going concern) one
effect is to make the enforcement of any "security" o ver the company’s property subject
to the consent of the administrator or leave (now permission) of the court ( see 20.16). In
1990 in Bristol Airport Plc v. Powdrill the Court of Appeal 92 held a statutory right of
detention of an aircraft under the Civil Aviation Act 1982 was "a lien or other security"
requiring leave to enforce. A possessory lien was within the statutory provision and the
exercise of the right to retain was "enforcement" of the right. The court held the statutory
right of detention to be not critically different, the detention of the aircraft enforcing
(and not merely creating) the right. Responding to the objection that it was impractical
to make the holder of a possessory lien apply for leave it was pointed out that the
administrator could consent and the administrator or the court impose terms. Further, a
lien holder retaining the chattel while seeking leave would not be in contempt of court.
1. The possession must be rightfully acquired and, apart from surrender for a
particular limited purpose (e.g. deposit), be continuous. Because of the requirement of
rightful acquisition possession transferred by a person who has no right to do so cannot
found a lien. But a person obliged to receive goods (such as a common carrier) is not
affected by the defect in transfer unless he knows of it (see e.g. Johnson v. Hill (1822) 3
Stark. 172).
2. Rights of retention are recognised as international maritime concepts in the
Conventions for the Unification of Certain Rules Relating to Maritime Liens and
Mortgages 1967 (Art. 6) and 1993 (Art. 7). Whether or not a right of retention is
conferred by a contract will be a matter for the law governing the contract (s ee e.g. Re
Leyland Daf [1993] B.C.C. 426) or the property right ( see Chapter 26).
3. See The Gregos [1985] 2 Lloyd’s Rep. 347.
4. I.e. there is no right of sale (see e.g. Mulliner v. Florence (1878) 3 Q.B.D.
484). But such a right may be provided by contract or statute. See e.g. the Sale of Goods
Act 1979, ss.39 and 48; the Torts (Interference with Goods) Act 1977, ss.12 and 13 (as
amended by SI 1991/724).
5. The Gregos (fn. 3).
6. Ibid. But it is arguable that its effect is limited to the lien for the amount
demanded—not any lien if the amount is amended. Until it is amended, however, the lien
claimant would be wrongfully retaining the goods.
7. But its context and wording may indicate possess ory. See e.g. in relation to a
broker’s lien under the Marine Insurance Act 1906; Eide UK Ltd v. Lowndes Lambert
Group Ltd [1998] 1 Lloyd’s Rep. 389 (and infra).
8. Somes v. British Empire Shipping Co. (1860) 8 H.L. Cas. 338; The Katingaki
[1976] 2 Lloyd’s Rep. 372. It was said in the latter case that there is no possessory lien
for damages for breach of contract of repair but this must be read as referring to a lien
unconnected with or incidental to the repair.
9. See The Winson [1982] A.C. 939, at p. 963 (H.L.).
10. Possession requires control, and, for example, simply leaving men on board a
ship will not necessarily give that control. See The Scio (1867) L.R. 1 A. & E. 353. See
also The Gregos [1985] 2 Lloyd’s Rep. 347. But arrest or the exercise of a statutory
power of sale may not affect the lien. So a court would be bound to hold the proceeds of
a ship sold by judicial sale subject to any rights that a possessory lien holder had in it.
(See The Tergeste [1903] P. 26; The Ally [1952] 2 Lloyd’s Rep. 427.) For an extension
of the concept of the possessory lien to a contracting party not having possession, see
The Lancaster [1980] 2 Lloyd’s Rep. 497 and Chapter 22.
11. See The Ally [1952] 2 Lloyd’s Rep. 427.
12. Trident International Ltd v. Barlow [1999] 2 B.C.L.C. 506 (C.A.).
13. See The Tergeste [1903] P. 26.
14. George Barker (Transport) Ltd v. Eynon [1974] 1 All E.R. 900. The issue
concerned the binding effect of obligations of an assignor on an assignee.
15. See e.g. the judgment of Stamp L.J. in George Barker (Transport) Ltd v. Eynon
(fn. 14) (at p. 909) distinguishing the issue from that of "priority" and the approach in
The Lancaster [1980] 2 Lloyd’s Rep. 497, at p. 503 (concerning an equitable lien).
16. But a court may order a person seeking to recover personal property to pay
money into court and if that is done that the property shall be given to him (CPR
25.1(m)).
17. See Trident International Ltd v. Barlow [1999] 2 B.C.L.C. 506 (C.A.).
18. See e.g. Jowitt v. Union Cold Storage Co. [1913] 3 K.B. 1 (warehouseman);
The Ally (supra) (shiprepairer). But see Crossley Vaines Personal Property (5th edn),
p. 139 (referring to warehousemen).
19. See Chellaram & Sons (London) Ltd v. Butlers Warehousing & Distribution
Ltd [1978] 2 Lloyd’s Rep. 412.
20. This is sometimes advanced as the reason for the priority of later maritime
liens over earlier mortgages (see infra). A bailee may create a lien against an owner if
the giving of the possession upon whic h the lien is based is reasonably incidental to the
use for which the chattel is bailed (see e.g. Tappenden v. Artus [1964] 2 Q.B. 185).
21. Insolvency Act 1986, s.246 (as amended by the Enterprise Act 2002, Sch. 17,
para. 22). As to an administration see Chapter 17.
22. As provided now by the Insolvency Act 1986, Sch. 81, para. 41(2) (construing
the like provision of the Act prior to amendment by the Enterprise Act 2002). Bristol
Airport Plc v. Powdrill [1990] 2 All E.R. 493—a statutory right of detention (as to
which see infra). But the assertion of a possessory lien is not the commencing or taking
of "proceedings" nor the levying of distress which are also acts requiring consent or
leave (now para. 41(6)). "Proceedings" are legal proceedings—distress indicates
seizure and detention, not merely detention ( ibid.). See also Euro Commercial Leasing
Ltd v. Cartwright and Lewis [1996] 2 B.C.L.C. 618.
23. Insolvency Act 1986, ss.126, 128, 130(2). The powers of the court to stay
proceedings apply to a voluntary winding up (s.112).
24. Insolvency Act 1986, s.285(1).
25. Ibid., s.285(3)(4).
26. Where there is judicial sale the lien holder’s rights are transferred to the
proceeds and subjected to priority rules. See infra and The Tergeste [1903] P. 26.
27. Levy v. Barnard (1919) 8 Taunt. 149. And see Euro Commercial Leasing Ltd
v. Cartwright and Lewis [1996] 1 B.C.L.C. 618—fresh lien acquired when funds paid
from client account to office account and then an equal amount retransferred to comply
with Insolvency Act 1986, s.11 (see infra).
28. See e.g. Morley v. Hay (1829) 7 L.J.K.B. (O.S.) 104. As to general and
particular liens, see infra.
29. See also Burston Finance v. Speirway [1974] 1 W.L.R. 1648. See also fn. 68
infra.
30. See e.g. (re broker’s lien) Fisher v. Smith (1878) 4 App. Cas. 1. (solicitors
lien). Compare Clifford Harris v. Solland International Ltd [2005] EWHC 141.
31. [1984] 1 All E.R. 265, at p. 272.
32. In The Winson [1982] A.C. 939, at p. 962 it was said that the question whether
the security provisions of Lloyd’s Open Form were inconsistent with a salvor’s
possessory lien "raises difficult and hitherto undecided questions of law". The salvor is
specifically providing for contractual security and arguably thereby exclusively doing
so. See now LOF 2000 Clause 4—there is certainly an agreement not to enforce the lien
if adequate security is provided and removal not contemplated ( see 4.9).
33. It has been held that the lien will continue despite the debt for which it has
been created becoming statute barred ( Spears v. Hartley (1800) 3 Esp. 81)—but this
must depend on whether the time bar goes to right or remedy —and whether the lien is
considered a remedy (see Chapter 1).
34. See infra as to the importance of this lien in maritime law.
35. A solicitor’s lien is not enforceable against a third party who would be entitle d
to production against the client (see Re Aveling Barford [1988] 3 All E.R. 1019).
Normally a solicitor must hand over papers on which he has a lien to a person other
than the debtor if they are required for an action provided suitable undertakings are
given; he does not thereby lose his lien (see Hughes v. Hughes [1958] P. 221).
However, it is a matter of balancing the hardship to be suffered and a court may refuse
to order that the papers be handed over. See A v. B [1984] 1 All E.R. 265. The lien
cannot prevent production of documents by solicitors of a company following an order
obtained by a receiver of the company under the Insolvency Act 1986, s.236, the
receiver being treated as a third party ( Re Aveling Barford Ltd, supra). As to waiver of
the lien, see fn. 32 and text. As to the solicitor’s lien under the Solicitors Act 1974, see
Chapters 17, 23.
36. Others being calico printers and dyers.
37. Chellaram & Sons (London) Ltd v. Butlers Warehousing & Distribution Ltd
[1978] 2 Lloyd’s Rep. 412 (C.A.).
38. But it is said in at least one instance there must be notice —a concept alien to
the common law (see Jowitt v. Union Cold Storage Co. [1913] 3 K.B. 1).
39. See US Steel Products Co. v. G. W. Rly Co. [1916] 1 A.C. 189, 195–196.
40. An insurance broker may be able to assert his general lien on a policy created
by a non-owner against an owner. However, a broker who knows or should reasonably
know that the instructing person is not the assured has no general lien on the policy for
the balance of the account with the giver of the instructions ( Cahill v. Dawson (1857) 3
C.B. (N.S.) 106); and a broker who makes this discovery during the course of dealings
has no such lien in respect of debts accruing after it ( Near East Relief v. King,
Chasseur & Co. [1930] 2 K.B. 40 (see infra).
41. [1978] 2 Lloyd’s Rep. 412.
42. The court followed Cassils and Sassoon v. Holdenwood Bleaching Co. Ltd
(1914) 84 L.J.K.B. 834, a case concerning the bleaching of calico on the instructions of
printers not expressly authorised by the owners to act as they did. See further (where
there was express agreement as to terms) Jarl Tra AB v. Convoys Ltd [2003] 2 Lloyd’s
Rep. 459.
43. As e.g. the broker’s lien under the Marine Insurance Act 1906, s.53(2 ). See
infra.
44. The innkeeper’s lien does not now extend to motor vehicles or live animals
(the Hotel Proprietors Act 1956, s.2).
45. Nugent v. Smith (1875) 1 C.P.D. 19, at p. 27; decision reversed (1876) 1
C.P.D. 423.
46. Ibid. (1876) 1 C.P.D. 423, at p. 433.
47. Electric Supply Stores v. Gaywood [1909] 100 L.T. 855.
48. But there may be restitution for a benefit conferred under the misapprehension
that it was being done on a chattel owned by the person doing the work. Greenwood v.
Bennett [1973] Q.B. 195.
49. The Katingaki [1976] 2 Lloyd’s Rep. 372.
50. See (e.g.) Foxcraft v. Wood (1828) 4 Russ. 487. Later authorities deal
primarily with the question of general lien but seem to assume the existence of a
particular lien. See e.g. Brandao v. Barnett (1846) 3 C.B. 519; Bock v. Gorrissen
(1861) 30 L.J. Ch. 39; Re Bowes (1886) 33 Ch. D. 586.
51. (1824) 8 B. & C. 612.
52. See The Ally [1952] 2 Lloyd’s Rep. 427.
53. Skinner v. Upshaw (1702) 2 Ld. Ray. 752.
54. See e.g. Tappenden v. Artus [1964] 2 Q.B. 185.
55. See Bowmaker Ltd v. Wycombe Motors Ltd [1946] K.B. 505.
56. See ss.39 and 48. The lien originated at common law —see e.g. Swan v. Barber
(1879) 5 Ex. D. 130.
57. So, for example, there appear to be differences in the commencement of the
lien for work done between shiprepairers and others ( see supra fn. 13) and differences
between enforceability of a broker’s lien against the assured and other general liens
against owners where a non-owner has dealt with the lien claimant ( see text infra).
58. See Hingston v. Wendt (1876) 1 Q.B.D. 367.
59. The Winson [1982] A.C. 939. The retention of possession of a bill of lading by
a seller may be construed as the exercise of a p ossessory lien over the document
pending payment or the retention of the right of disposal of the goods. See e.g. Bridge,
op. cit. at p. 65.
60. The payment of freight and delivery of cargo being concurrent obligations at
common law.
61. See The Fort Kipp [1985] 2 Lloyd’s Rep. 168.
62. Until 5 November 1993 there were statutory provisions for the continuation of
the lien in specified circumstances after the landing of the goods and placed in the
custody of a wharfinger or warehouseman (Mercha nt Shipping Act 1894, ss.494–496).
The lien required notice and if the goods were not retained the wharfinger or
warehouseman was responsible to the shipowner. It was uncertain whether such a lien
could be created only if the cargo owner failed to take del ivery and the goods could be
landed (see s.493; Dennis and Sons v. Cork Steamship Co. Ltd [1913] 1 K.B. 393).
The warehouseman or wharfinger had a lien on the goods for rent and expenses (s.499).
The goods could be sold to meet payments due (ss.497 –498). The lien provisions were
repealed by the Statute Law (Repeals) Act 1993 (Sch. 1, Part XV, Group 6) —not the
preferable way to repeal part of comprehensive maritime provisions.
63. The Winson [1982] A.C. 939.
64. See e.g. Huth & Co. v. Lamport (1886) 16 Q.B.D. 735.
65. See Strang Steel & Co. v. Scott (1889) 14 App. Cas. 601—where the lien is
expressed to be that of each cargo owner whose cargo has been jettisoned but
exercisable only by the master who has possession (see p. 606).
66. See Hingston v. Wendt (1876) 1 Q.B.D. 367.
67. Ibid.
68. Hartford v. Jones (1698) 1 Ld. Ray. 393 recognised in e.g. The Fulham [1899]
P. 251 (C.A.); Hingston v. Wendt (1876) 1 Q.B.D. 367, at p. 373.
69. See fn. 32 supra.
70. Hingston v. Wendt (1876) 1 Q.B.D. 367. As to agent’s lien in general, see text
supra.
71. This provision does not apply to composite insurance (i.e.) where one of a
number takes out insurance for the benefit of all —the "employer" cannot be described
as a principal and an agent cannot create a lien beyond his own interest. See Eide v.
Lowndes, fn. 7.
72. The possession of the policy under a lien makes the brokers agents of the
assured to collect claims. See Xenos v. Wickham (1863) 14 C.B. (N.S.) 435; Hine Bros
v. The Steamship Syndicate Ltd (1895) 72 L.T. 79.
73. See, for a holding that a particular undertaking did not amount to a contract,
Fairfield Shipbuilders & Engineering Co. Ltd v. Gardner, Mountain & Co. Ltd (1911)
104 L.T. 288.
74. See Fairfield Shipbuilders & Engineering Co. Ltd v. Gardner, Mountain &
Co. Ltd (1911) 104 L.T. 288. A financier may be able to control the amount of the lien
through his own contract with the broker. And a broker allowing credit to the assured in
respect of unpaid premiums must run the risk that he will destroy a possessory lien
through action inconsistent with the lien (see text supra).
75. See Maunns v. Henderson (1801) 1 East 335, at p. 337.
76. Cahill v. Dawson (1857) 3 C.B. (N.S.) 106; Westwood v. Bell (1815) 4 Camp.
349. Discovery that a principal is an agent means that any general lien extends only to
the moment of discovery. Near East Relief v. King, Chasseur & Co. [1930] 2 K.B. 40.
77. As to criminal liability and control over leaving port of general application to
liability to detention under the Merchant Shipping Act 1995 see s.284. As to its
application to liability to detention under statutory instruments see e.g. Merchant
Shipping (Ro Ro Passenger Ships) (Stability) Regulations 2004 (SI 2004/2884),
Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk) Regulations
1996 (SI 1996/3010 as amended by SI 1998/1153, 2004/930), Merchant Shipping (Gas
Carriers) Regulations (SI 1994/2464 as amended by SI 2004/929).
78. See e.g. the Harbours, Docks and Piers Clauses Act 1847, ss.44 and 47; the
Merchant Shipping Act 1995, ss.208 and 209 (light dues) and special Acts relating to
different ports.
79. See e.g. Merchant Shipping Act 1995, s.95(1); Sch. 3, para. 3(3) (dangerously
unsafe ship).
80. Merchant Shipping Act 1995, s.146 (non -compliance with load line rules).
81. See the Merchant Shipping Act 1995, ss.252, 253.
82. See e.g. Merchant Shipping (High Speed Craft) Regulations 19 96 (SI
1996/3188); Merchant Shipping (Survey and Certification) Regulations 1995 (SI
1995/1210); Merchant Shipping (Vessels in Commercial use for Sport or Pleasure)
Regulations 1998 (SI 1998/277 1); Merchant Shipping (Load Line) Regulation 1998 (SI
1998/224 1) and regulations noted in fn. 77.
83. Compare the right to remove a vessel under the Harbours, Docks and Piers
Clauses Act 1847, s.56. After removal the control and possession reverts to the owner
(see The Clupea [1982] LMLN 62 (Court of Session)).
84. [1966] 1 Lloyd’s Rep. 670.
85. See also Chapter 23.
86. [1957] 1 Lloyd’s Rep. 151.
87. [1968] P. 449.
88. [1986] 1 Lloyd’s Rep. 266.
89. See Chapter 23.
90. [1992] 2 Lloyd’s Rep. 441.
91. Following the approach of Eve J. in Manchester Ship Canal Co. v. Horlock
[1914] 1 Ch. 453. Sheen J. pointed out that otherwise an owner could defeat a harbour
authority’s claim by mortgaging the ship.
92. [1990] 2 All E.R. 493.
Chapter 21
Equitable Liens 1. The Substance of the Lien

21.1 An equitable "lien" is no more than a right to go against an asset for a claim. It
creates an equitable interest in the asset and, therefore, security for the claim. It may
initially be construed as a floating charge focused on a number of assets fastening on a
particular asset (i.e. crystallising) on a specified event. It is similar to the common law
lien in that it may be created by contract or recognised as stemming from a leg al
relationship. It is distinct from the common law lien in that:
(i) it may be created by conduct;
(ii) it is not dependent on possession;
(iii) following from (ii) it may be enforced through action and eventually through
sale of assets on execution of a judgment;
(iv) its scope of enforceability is dependent on its equitable character, i.e. (a) it is
enforceable between the parties and against a ll third parties acquiring interests
subsequently except a person giving value for an interest in the asset recognised at
common law without notice of the lien, 1 (b) it can be enforced through tracing the asset
in which the lien exists into funds or other assets which have been substituted for it.
In construing an "equitable lien" created by contract on occasion as a floating
charge the courts have both moved it further away from the traditional common law lien
focusing on a particular asset and made the co ncept even more imprecise. 2 Equitable
Lien and Equitable Charge
21.2 A charge is simply an interest in an asset held as security for a claim —usually
a monetary claim. As an expressly created interest, it is to be contrasted with a
mortgage insofar as a mortgage implies transfer of the mortgagor’s interest with a right
of redemption. A charge simply creates an interest in the asset commensurate with the
claim in relation to which the charge exists. Apart from land, in English law it is a n
equitable concept. In terms of enforceability it does not differ from an equitable
mortgage.
21.3 "Equitable lien" is synonymous with "equitable charge" in respect of an
expressly created security interest, but "lien" is perhaps more frequently used than
"charge" to describe security interests imposed by law as, for example, on the basis of
conduct. As the description "equitable charge" may be used, even in this context, t here
is little difference in substance between the two concepts. 3 The floating charge
21.4 The floating charge is an equitable charge which is on all or part of a
company’s assets. It does not "crystallise" on any particular asset until a specified event
occurs and the company is therefore free to continue to deal in and with the assets until
that event. Whether a charge is fixed or floating is not simply one of construction but on
the rights and obligations conferred. 4 A power to detain and sell does not transform a
possessory lien into a floating charge. 5 As an equitable charge which is directly
relevant to the priority of "liens" as against other interests the construction by the court
of contractual "liens" in charterparties as floating charges bring it directly into the "lien"
area.
21.5 The contractual floating charge created as such will usually include clauses
attempting to prevent the creation by the company of later fixed charges having priority
over it—a "negative pledge" clause. Further, although crystallisation necessarily
follows from enforcement, a clause may be included providing for automatic
crystallisation 6 either on an occasion specified in the charge or on notice to the
company. The registrability of such charges and th eir particulars under the Companies
Act 1985 and their priority is discussed in Chapter 23. Reservation of Title Clause
21.6 In a contract of sale a seller may attempt both to transfer the title to allow the
buyer to deal with that which is sold and to res erve the beneficial title should the buyer
default. It is not possible to have it both ways and any right in the buyer to the beneficial
title may result in the seller’s right being classified as an equitable charge —i.e. a
security interest instead of the beneficial title (see Chapter 23). 2. The Equitable Lien
in Admiralty
21.7 An equitable lien or equitable charge may be created in relation to ship, cargo
or freight in the same way as it may be in relation to chattels or choses in action
generally. A claim based on an equitable charge or lien on a ship is within Admiralty
jurisdiction as being a claim "in respect of a mortgage or a charge or a ship or share
therein". It may be enforced by an action in personam or an action in rem against the
ship.7 There is no provision for a claim in Admiralty jurisdiction based on an equitable
lien on cargo or freight (unless it can be argued that such jurisdiction follows from
jurisdiction in relation to a ship). 3. Creation of the Lien 1. By Contract
21.8 The ability freely to create a lien by contract means that at will parties can
create security interests enforceable against third parties. 8 Whether a contractual "lien"
clause creates an equitable lien is a matter of construction of the rights and obligation
conferred and the issue as it affects charterparties and bills of lading is the subject of
Chapter 22. If construed as an equitable lien its enforceability as a lien may be affected
by registration requirements of either the Bills of S ale Acts 1878 and 1882, or more
likely in maritime matters, the Companies Act 1985 as amended (when the relevant
provisions come into force) by the Companies Act 1989. Bills of Sale Acts 1878 and
1882
21.9 An instrument creating or evidencing an equitable lien created by contract by
an individual (i.e. other than a company) is within the framework of the Bills of Sale
Acts 1878 and 1882. 9 Security transactions fall within the Bills of Sale Act 1882 but
many maritime documents are excluded from the operations of the Acts. 10 Companies
Act 198511
21.10 An equitable lien created by a company is a charge within the Companies
Act 1985, section 396, and if within the terms of the section will require registration 12
for enforceability against a liquidator or other creditors. Such charges include a charge
on a ship or share in a ship, a charge on calls made but not paid, a charge on book debts
and any charge created or evidenced by an instrument which, if executed by a n
individual, would require registration as a bill of sale. 13 The provisions are to be
replaced by a more comprehensive framework on the coming into force of the
appropriate provisions of the Companies Act 1989. 14 Shipowner’s lien on subfreight
21.11 A lien on subfreights (often found in a charterparty) 15 is, it has been held, an
equitable assignment by a charterer of the future right to receive freight. This constitutes
an equitable floating charge on a book debt. Hence it is registrable under the Companie s
Act 1985, and if not registered will be void against a liquidator or creditor. 16 However,
its express removal by the Companies Act 1989 from the category of book debt will on
the coming into force of those provisions render the lien non -registrable.17 2. Arising
from the Relationship of the Parties18 Vendor’s lien for unpaid purchase money
21.12 This is primarily relevant to the sale of land and arises on the contract,
counterbalancing the purchaser’s equitable interest. But, as with the purchaser’s
interest, it may be applicable to the sale of chattels (including a ship) if equity would
decree specific performance of the sale of the chattel. 19 Its scope may be limited in that,
unless specifically provided otherwise, a transaction within the Sale of G oods Act 1979
may create only the rights (including the liens) 20 specified in that Act. 21 If, however, the
Act does not provide an exclusive framework the equitable lien would have a role to
play alongside or consecutive to the possessory lien conferred on the vendor by the Act.
3. Arising from a Course of Conduct
21.13 No equitable lien is created simply by expenditure on another’s land, chattel,
or intangible,22 but if such expenditure is made in reliance on a representation a lien
based on estoppel may arise. In a string of modern cases working out the role of
estoppel in regard to the occupation and improvement of land, courts have claimed
through the principle of "proprietary estoppel" a freedom to impose the remedy which is
seen to fit the particular circumstances. So it could be transfer of title, 23 occupation for
a specified period, 24 or a lien for any amount spent. 25 The Court of Appeal, while
conceding that proprietary estoppel exists in regard to land and could extend to forms of
property other than land (such as goods), has held that it should not be extended
further.26 Even accepting such a limitation, an equitable lien could be created in relation
to a ship or cargo. While therefore, the principle appea rs most frequently in the context
of land it may be applicable commercially 27 and, therefore, to maritime transactions. 4.
Enforceability of the Lien 1. Against Third Parties
21.14 Once created, an equitable lien protects the claim to which it attaches by
enabling the claimant to assert an equitable interest in a particular asset. It does not give
any right to pre-trial attachment but it confers enforceability against all interests created
subsequently if acquired with notice of it and against any equitable interest acquired
subsequently whether with or without notice. To that extent it gives priority against
purchasers and other creditors. But it is not enforceable against those who hold interests
created prior in time to the "lien". In particular, an owner cannot be made subject to a
lien created by an agent, bailee or charterer except on grounds of express or implied
authority.
21.15 The requirement of registration of interests has in some fields affected the
general equitable rule that purchasers without notice take free of an equitable interest.
Registration provides the "notice" and where it is available failure to register an
interest may render the interest void as against later purchasers. In English law
registration is relevant to liens other than in land only under the Bills of Sale Acts 1878
and 1882 or the Companies Act 1985 28 and as regards other registrable interests vying
for priority with a lien. 29 2. Tracing into Other Assets
21.16 Through the beneficial interest created by it the equitable lien provides the
equitable proprietary interest for tracing in equity. 30 Tracing is available in relation to
assets substituted for that in which the lien existed by any party against whom the li en is
enforceable. It is a remedy which overcomes the problem inherent in the concept of
"lien" of continued existence of a thing to which the security interest is attached; 31 but it
does not increase the scope of enforceability (i.e. the number of persons against which it
can be enforced). The assets into which the lien may be traced must be seen as
representing the original asset but equity will allow tracing into a bank account or other
fund to which money paid for the asset has been credited. However, i nsurance moneys
do not represent an asset in respect of which they are paid and a claimant cannot trace
an interest held in that asset through to the moneys. 32 5. Transferability
21.17 Ex hypothesi the transfer of an equitable lien would depend on the transfer
of the claim to which it is attached. Given such a transfer, as an equitable interest an
equitable lien is in principle transferable generally. However, in developing proprietary
interests dependent on estoppel, the courts have on occasion created non -transferable
interests; and where the basis of a lien is reliance on a representation it may be that such
lien would be limited to the person relying. Such a restriction has been imposed in
respect of social relationship issues. It may have less appeal in a commercial context. 6.
Termination
21.18 The equitable lien would fall with the claim to which it is attached, and to
that extent is subject to statutory limitation of action provisions. It is also subject to the
equitable principle of laches—delay will destroy the lien. And, naturally, it is subject to
the general principles of waiver and loss by consent.
1. The courts are reluctant to impart any suggestion of "constructive" notice (such
as applies (e.g.) in land law) into commercial law. See e.g. Port Line v. Ben Line
Steamers Ltd [1958] 2 Q.B. 146. As to "notice" of charge registered under the
Companies Act 1985 as amended by the Companies Act 1989 see Chapter 23.
2. For an early rejection of a contention that equity could extend the notion of the
possessory lien see Gladstone v. Birley (1817) 2 Mer. 401. For construction of
contractually based "liens" see Chapter 22.
3. Both a charging order made under the Charging O rders Act 1979 in favour of a
judgment creditor and a writ of fieri facias (in execution of a judgment) take effect as an
equitable charge. A floating charge over company assets is an equitable charge. See
infra.
4. Agnew v. Commissioner of Inland Revenue [2001] UKPC 28.
5. Trident International Ltd v. Barlow [1999] 2 B.C.L.C. 506 (C.A.).
6. Such a clause is valid, the event of crystallisation being a contractual matter. Re
Brightlife Ltd [1986] 3 All E.R. 673.
7. Supreme Court Act 1981, s.20(2)(c), s.20(7)(c), s.21(2). Cf. Chapters 2, 10.
8. A lien or other charge created by a public company on its own shares is void
except for a charge (i) for any amount payable in respect of them or (ii) arising in the
ordinary course of business of a money-lending company, or (iii) in existence prior to a
statutory registration period (the Companies Act 1985, s.150). As to the need for
registration of charges, see Chapter 23.
9. As to the framework, see the Bills of Sale Act 1878, s.4 ( adopted by the Bills of
Sale Act 1882, s.3) and Chapters 17 and 23.
10. Including assignments and transfers of ships, bills of lading,
warehousekeeper’s certificates and any documents used in the ordinary course of
business or proof of possession or control of goods or documents of title thereto. See
Chapter 23.
11. Part XII (“Registration of Charges”) will be replaced by new provisions when
ss.92–107 of the Companies Act 1989 are brought into force.
12. I.e. delivery of particulars of the charge for registration. There is provision in
the amendments to be enacted by the Companies Act 1989 for late delivery of the
particulars (added s.400).
13. See the Companies Act 1985, s.396. A "floating charge" is als o within the
provision. As to further scope of the provision, see Chapter 23.
14. See generally Chapter 23. Non-registration will also render the charge void
against an administrator appointed to restore a potentially or actually insolvent company
to solvency (as to which see Chapter 17).
15. As to the contractual scope and nature of the "lien" see Chapter 22 and as to
priorities generally see Chapter 23.
16. See The Ugland Trailer [1985] 2 Lloyd’s Rep. 372; The Annangel Glory
[1988] 1 Lloyd’s Rep. 45. See further Chapter 23.
18. An equitable lien is created in favour of a partner over partnership assets, a
trustee over trust property for expenditure, and beneficiaries over land purchased with
trust moneys.
19. See e.g. Langen v. Bell [1972] 1 All E.R. 296 (shares).
20. See s.41.
21. See e.g. Re Wait [1927] 1 Ch. 606; The Aliakmon [1986] 2 All E.R. 145, at p.
151 (Lord Brandon).
22. As a consequence there is no lien for salvage outside the maritime concept.
23. Pascoe v. Turner [1979] 1 W.L.R. 131.
24. See e.g. Inwards v. Baker (life interest) [1965] 2 Q.B. 29; Matharu v.
Matharu (1994) The Times, 13 May.
25. See e.g. Chalmers v. Pardoe [1963] 3 All E.R. 552; Wayling v. Jones [1993]
EGCS 153.
26. Western Fish Products v. Pentworth D.C. [1981] 2 All E.R. 204, at p. 218.
27. See Moorgate Mercantile Co. Ltd v. Twitchings [1976] Q.B. 225 (reversed
[1977] A.C. 870) and, it is arguable, the Sale of Goods Act 1979, s.21.
28. See supra and Chapter 23.
29. Such as a requirement of registration of a mortgage (as to which, see Chapter
23).
30. Tracing at common law is limited to identity of property i.e . there is no ability
to trace into a mixed fund or property purchased with such funds. The equitable lien
provides the equitable relationship necessary for the recovery even though there is no
specific thing or fund representing that sought to be recovere d. For general principles,
see Re Diplock [1948] Ch. 465 (C.A.) (affirmed [1951] A.C. 251); Foskett v.
McKeown [2001] A.C.102. Tracing is based on equity’s capacity to impose an
equitable charge, the charge itself being notional with the availability of third party
rights depending on the circumstances. As to the continued need for a fiduciary
relationship see Shalson v. Onofrio Russo [2003] EWHC 1637. See e.g. El Ajou v.
Dollar Land Holdings (No. 2) [1995] 2 All E.R. 213). The court will assist through
ancillary orders in discovering the whereabouts of the assets (see A v. C [1980] 2
1. With the exception of the fund created through judicial sale in an action in rem.
As with every other lien if the asset to which it is attached is destroyed or incorporated
into another the lien is extinguished (see Borden (UK) v. Scottish Timber Products
[1981] Ch. 25) but tracing also requires the existence of an asset —an overdrawn bank
account will not suffice (Bishopgate Finance v. Homan [1994] 3 W.L.R. 1270 (C.A.)).
32. See The Lancaster [1980] 2 Lloyd’s Rep. 497 (a ship). Premiums however
may be traced to policy funds. (See Foskett v. McKeown, n. 30.)
Chapter 22
Creating a Lien by Contract
22.1 While some maritime liens and statutory liens are founded on contract they
are consequences imposed by the law on the contract. The parties have no freedom to
create either type of lien by a contract other than that which by law exists in the lien. 1
On the other hand under English law possessory and equitable liens may be created by
contract in respect of any type of transaction. Subject to estoppel or statutory prov ision2a
lien may not be created by contract in respect of any asset in which a contracting party
has no interest to support the lien.
22.2 The basic concept of "lien" is at common law the assertion of an interest in an
asset under the lien holder’s control as security for a claim. But, as has been seen, the
meaning is now far wider and encompasses interests of varying nature and effect. The
maritime lien is an early example of movement away from "control" or possession,
followed by the statutory lien in Ad miralty. Approaching from a different startpoint a
"lien" may include in equity a security interest in an intangible, including a floating
charge on a company’s assets.
22.3 A major problem with many contracts, including standard form bills of lading
and charterparties, is that provision is simply made for a "lien". There is therefore a
preliminary and fundamental matter of construction. The uncertainty through the use of
the undefined "lien" is underlined by the use of "lien" in one context in a standard f orm
charterparty to refer to a relationship similar to a possessory lien, i.e. not a lien but
something like it. 3 1. The Lien Clause—General Considerations Common Clauses
22.4 Lien clauses appear in many standard form and other charterparties and bills
of lading. Their effect may vary according to whether the lien is solely a creation of
contract or is the application of a lien created by operation of law. Clauses commonly
provide for a lien on cargo for freight, dead freight and demurrage and other expense s4
or any amounts due under this charter. 5 In respect of dead freight, demurrage expenses in
general and amounts due under the charter this will create whatever interest is specified
by and through the contract. Provided that it is to be construed as a pos sessory lien, the
lien for freight will, it would seem, take the place of the lien for freight due which
would exist because of the legal relationship. It may be, however, that the scope of the
"lien" or the event creating it will indicate that it is eithe r not that lien in all its aspects
or is another type of security interest entirely. So the extension of the lien to cargo
delivered into the possession of another 6 cannot be a possessory lien and can take effect
only insofar as whatever interest is create d is enforceable against the person to whom
the cargo is delivered. The only possible interest is the equitable lien. Further, the lien
on cargo for freight will involve consideration of the difference, if any, between "hire"
and "freight". A lien on freight involves the same issue and, in addition, consideration of
the type of lien in an intangible (see infra).
22.5 Whether the lien is exercised or, if so, is properly exercised will be a matter
of construction of the contract—so a lien exercisable on completion of discharge might
defeat itself unless after discharge the cargo remains in the possession of the owner. 7
Refusal to continue a voyage may or may not of itself be exercise of a lien on cargo,
depending on the legal basis of the act and its effect on other contractual obligations. It
is a matter of construction how the exercise of a lien affects other contractual rights. So
the exercise of a lien on cargo for non-payment of freight or demurrage does not prevent
demurrage accruing. 8
22.6 The right to implement the lien may be qualified by the provision for
alternative security. 9 In a charterparty the provisions of the lien may be accompanied by
a declaration of continued or cessation of liability of the charterers (in the latter
instance a "cesser" clause—see infra). Multi-Lien Clauses
22.7 A clause may create not only liens in respect of various obligations but more
than one type of lien. The New York Produce Exchange Charterparty
22.8 Clause 23 of the New York Produce Exchange (NYPE) time charterparty
1993 provides:
"The Owners shall have a lien upon all cargoes, and all sub -freights and/or sub
hire for any amounts due under this Charter Party, including general average
contributions, and the Charterers to have a lien on the Vessel for all monies paid in
advance and not earned, and any overpaid hire or excess deposit to be returned at once.
The Charterers will not directly or indirectly suffer, nor permit to be continued,
any lien or encumbrance, which might have priority over the title and interest of the
owners in the vessel. The Charterers undertake that during the period of this Charter
Party they will not procure any supplies or necessaries or services including any port
expenses and bunkers on the credit of the Owners or in the Owner’s time."
This clause replaces Clause 18 of the earlier edition of the charterparty. It differs
in (a) providing expressly for a lien on sub -hire; (b) adding the undertaking not to
procure supplies or necessaries; and (c) in the obligation not to suffer a lien to be
created, replacing a reference to agents with the reference to "directly or indirectly".
22.9 The addition of sub-hire avoids the problem of whether "freight" includes
"hire" (see infra). The undertaking not to procure supplies on the credit of the owners
operates contractually to impose a specific obligation. So far as the possible creation of
liens is concerned it at most adds only an obligation not to create any lien (and not only
one which might have priority over the owner’s lien). Whether any implied prohibition
is effective turns on the same factors as are relevant to the express prohibition ( see
infra). Apart from these two matters the uncertainties relevant to liens endemic in the
earlier version of the standard remain.
22.10 The clause appears to provide for four types of lien, namely:
(i) owners’ lien on cargo;
(ii) owners’ lien on subfreights a nd/or sub-hire;
(iii) charterers’ lien on ship;
(iv)the lien which the charterer is obliged not to "suffer directly or indirectly nor
permit to be continued." 10
22.11 "Lien" is not used consistently in these clauses. 11 The owner’s lien on cargo
is probably the traditional possessory lien, but as it appears in a time charter and the
charterer is not granted possession of the ship the charterer’s lien on the ship cannot be
a possessory lien. 12 Similarly insofar as the right to receive freight is a chose in action,
a lien on freight cannot be a possessory lien —and arguably is not accurately described
as a lien. Finally, the "lien" which a charterer must not suffer to remain attached to the
ship arguably refers to any type of lien. It is difficult to defend such a loose use of the
lien concept. On occasion commercial sense necessitates legal risk but it is hard to
appreciate the commercial sense of lack of clarity of right or obligation. The Baltime
Charterparty
22.12 Clause 18 of the Baltime Uniform Time Charter reads:
"18. Lien
The Owners to have a lien upon all cargoes and sub -freights belonging to the Time-
Charterers and any Bill of Lading freight for all claims under this Charter, and th e
Charterers to have a lien on the Vessel for all moneys paid in advance and not
earned."13
The clause (a) limits the owners’ lien on cargoes and subfreights to such cargoes or
subfreights as belong to the time charterers, and (b) specifically refers to bi ll of lading
freight and (c) provides for a charterer’s lien on the ship. In The Nanfri14 Lord Russell
said bill of lading freight added nothing to subfreights —"the lien operates as an
equitable charge on what is due from the shippers to the charterers". 15 As the clause
stands it covers sub-hire only if "freight" includes hire. The Gencon Charterparty
22.13 The Gencon Charterparty as revised in 1994 provides in Clause 8:
"The Owners shall have a lien on the cargo and on all sub freights payable in
respect of the cargo for freight, dead freight, demurrage claims for damages and for all
other amounts due under this Charter Party including costs of recovering the same."
While the clause specifies the grounds for the lien attaching to a greater extent than
the NYPE in Baltime clauses, as with the Baltime it does not refer to hire. The Lien
Clause in Context
22.14 Whatever the degree of clarity construction arguments are perhaps
unavoidable. In 1979 in The Nanfri it was emphasised in the House of Lords that the
lien clause in a charterparty must be read in conjunction with other clauses and, in
particular, with the purpose of the charterparty. So, in a time charterparty, the clause
"cannot be read as interfering with the time charterer’s primary right to use the ship and
to direct the master as to its use". It cannot be used as a basis for arguing that the master
cannot sign prepaid bills of lading on the ground that this would deprive the owners of
their lien on subfreights. It gives the owners "a lien on suc h freights or subfreights as in
the event come to be payable and which in fact are payable". 16
22.15 Given that the lien clause has to be construed as part of the whole it is
instructive to examine the liens referred to in the charterparties cited and set these in a
general context. 2. The Liens Created 1. Owner’s Lien on Cargo (a) Nature of lien
22.16 It seems clear that in a time or voyage charterparty or bill of lading this is a
contractual creation of a possessory lien. In the case of a demise charter i t is difficult to
escape the conclusion that as the charterer is in possession, it would be an equitable
lien. It would not be a lien akin to a possessory lien (as held in the case of a time
charterer’s lien on the chartered ship) as the owner would have no power to prevent
delivery and it is only as an equitable lien that such a clause makes sense in the context
of a demised charterparty. (b) The cargo
22.17 In a charterparty such as NYPE or Gencon doe s the contract purport to
create a lien over cargo not owned by the charterer? In The Aegnoussiotis 17 Donaldson
J. held that the then applicable NYPE clause imposed on the charterer an obligation to
procure a contractual lien over cargo not owned by them a nd, failing this, that cargo
owners have a cause of action against the owners if the owners assert the lien. In The
Agios Georgis18 Mocatta J. held to the contrary on the simple but persuasive reasoning
that a contractual lien cannot be imposed on a third party. In The Cebu (No. 1) 19—
concerned with the lien on freight—Lloyd J. preferred the view that "all cargoes" meant
what it said in support of his view that all "subfreights" included those not due to the
head charterer.
22.18 It seems clear that apart from estoppel, a lien clause cannot create a lien
over assets in which the contracting party has no interest. So the charterparty clause
cannot create a lien over cargo not owned by the charterers and the owners of which are
not parties to any arrangement conferring a lien in favour of the shipowners. 20 The
question is simply whether the clause must be read down to fit the impossibility or read
as obligating the charterers to create such an arrangement. Lloyd J.’s view must be
approached with some caution as in the context of freight the "lien" will operate
successfully because of a contractual basis —the charterers agreed to assign freight due
directly to them or to which they were entitled as assignees. The question regarding
freight would be similar to that of cargo as it was posed in The Aegnoussiotis and The
Agios Georgis if there was no lien clause in the sub-sub-charter.
22.19 It is suggested, with respect, that Mocatta J.’s view is to be preferred. The
approach of Donaldson J. would impose on third parties at least the burden of a lawsuit.
To suggest that A, by contract with B, can create an interest over C’s goods although C
may challenge that interest seems a curious exception not only to the doctrine of privity
underlying the rule relating to carriage of goods but also to fundamental property
principles. It may also be considered unjust. This is supported by Mustill J.’s approach
in The Miramar. Mustill J. thought it clear that to be useful such a clause must be
intended to create rights against third parties, it being only in a minority of cases that the
cargo would belong to the charterer throughout the transit. As "a clause in the charter
cannot do this directly . . . it must, therefore, have been intended that the clause would
operate by way of incorporation into the bill of lading". 21 The most general form of
incorporating words would produce this result.
22.20 The creation of a lien over a shipper’s goods through a charterparty to which
he is not a party could be defended only on the basis that the shipper takes the risk of
such a lien for the policy reason that otherwise the owner will not know which goods
are susceptible to the lien. In the end it is a matter of the balancing of commer cial
factors—and it seems difficult to defend a proposition that a shipper must take the risk
of submitting his cargo to a lien to which he does not consent and of which he has no
knowledge. It is to favour a carrier too greatly to all ow him to pass on the contractual
risk taken with the charterer to a shipper with whom he has no contract. 2. Owner’s
Lien on Subfreights or Sub-Hire (a) Nature of the lien
22.21 "The lien operates as an equitable charge on what is due from the shippers to
the charterers and in order to be effective requires an ability to intercept the subfreight
(by notice of claim) before it is paid by shipper to charterer." 22 In effect it is an
equitable assignment of the right to receive the freight and its enforceability against the
shippers will therefore depend on notice to them. 23
22.22 Arguments seeking to limit the meaning of the clause to circumstances where
the owner is acting as agent for the charterer or to matters within the lienor’s control (or
when freight is due) have been roundly rejected. 24 The purpose of the clause, it is said,
is to confer on the owners security for amounts falling due under the charter, a right to
be exercised by owners in their own right.
22.23 The right conferred by the contract is to assign future subfreight by way of
security when and if there is default by the assignor of the contractual obligation
secured. It is not simply an agreement to create a charge o n the coming into being of
specified conditions. It is
"an agreement by the charterers to assign (i.e. to transfer) to the owner by way of
floating security the right to payment of sub freight falling due under contracts to be
made by the charterers in respect of the vessel the subject of the head charter." 25
22.24 It has to be said that, as argued early in this century, the description of such a
right as a "lien" was as much misleading as accurate. 26 In fact the label identifies the
right not at all. While it is appreciated that the meaning of the clause has only been
reached after much judicial deliberation it remains surprising that a right of such
complexity continues to be expressed with such concealing simplici ty. The content of
the right
22.25 It is established that the "lien" extends only to unpaid freight. It is terminated
when the freight is paid and there is no right to follow the funds into the charterer’s
hands or those of third parties. (b) Does "freight" include charterparty hire?
22.26 In The Cebu (No. 1) 27 Lloyd J. held that, while in some contexts it made
sense to distinguish freight from hire, in the context of the lien clause "freight" included
"hire", but in The Cebu (No. 2) 28 Steyn J. held that at the date of entry into the charter
before him (1979) there was a well -established commercial restriction of "freight" to
that payable under a bill of lading and voyage charterparty. "Freight" in a contract had to
be construed with the accepted usage in mi nd at the date of entering into the contract and
it therefore did not include that which is payable under a time charterparty. Even if the
meaning had been ambiguous account should be taken of its effect on third parties (i.e.
the party on which lay the obligation to pay). In contrast to voyage charters moneys due
under time charters were not easily identifiable as the periodic payments reflected a
balance of credits (such as ballast or bunkers) and debits (e.g. off hire). Further the sub -
charterers may face a dilemma in knowing that if hire was not paid promptly the ship
may be withdrawn yet being unsure to which party it should be paid —"only a clear lien
clause should be enforceable against the third party".
22.27 In The Cebu (No. 1) Lloyd J. had expressed the view that there was little
commercial sense in making the security depend on the type of charter under which a
trip was made. Steyn J. clearly took the view that the construction in accordance with
commercial practice also made c ommercial sense—particularly from the view of the
sub-charterer. What is clear is that not only should any lien clause be clear but that it is
to be expected that commercial terms will be construed as normally used. So the
wording of commercial bargains must reflect any change in that use. In this respect the
amendment of the NYPE clause is to be welcomed. (c) Are "sub-subfreights" and "sub-
subcharter hire" included?
22.28 This turns on the entitlement (or not) of the owner (or head charterer) to
payments due to the charterer with which there is a direct contractual relationship.
While where the security is "freight" the relevance of the issue will depend on the ambit
of that term, the matter becomes relevant either if the decision in The Cebu (No. 1) is to
be preferred or, as in the amended NYPE form, the clause includes hire.
22.29 In The Cebu (No. 1), having held that freight included hire, Lloyd J. held that
the clause included sub-sub-charter hire due to sub-charterers on the basis that the
clause was an equitable assignment of all "freight" due to the charterers either directly
or through a sub-charter including a like clause. In so doing, Lloyd J. approved the view
that in its reference to "cargo" the clause included cargo not owned by the cha rterer.
While the issues are similar as regards the ambit of the security the operation of the two
clauses seems directly contrary —the "lien" on freight or hire works because of the
contractual claim, the lien on cargo cannot work directly because of a lac k of such a
claim. 3. Charterer’s Lien on Ship Nature of the lien
22.30 In the context of a time or voyage charter the charterer is not in possession
and, therefore, the lien cannot be a possessory lien. In 1980 in The Lancaster29 it was
argued that in respect of a time charter the lien was an equitable lien (or charge) in the
true sense that it gave the charterers the right to enforce it against rival claimants to the
ship and, in that case, to insurance moneys representing the ship. Robe rt Goff J. held that
the "lien", although it was not a possessory lien, had similar effect. It conferred "on time
charterers the right to postpone delivery of the ship to the owners" and nothing more. 30
In the case of a demise charter it follows that the l ien is a "true" possessory lien. 4. Lien
not to Be Suffered or Permitted to Continue
22.31 The express prohibition in the NYPE clause is against any "lien or
encumbrance incurred" by the charterer which might have priority over the interest of
the owners. The clause is clearly intended to catch any interest which would take
priority over that of the owner. In 1980 in The Vestland31 it was held that the clause was
aimed at a lien or encumbrance which the charterers or their agents have caused to be
incurred; and that an arrest of a ship due to the charterers’ act was a "lien" within the
meaning of the phrase. The arrest gave the arrester a "statutory lien" which carried the
right of a secured creditor. 32 While, with respect, it is not the arrest w hich creates the
lien but the issue of the writ in rem (now in rem claim form) which precedes the arrest,
the reasoning is equally applicable. 3. Charterer’s Liability Dependent on Exercise
of Owner’s Lien—a "Cesser Clause"
22.32 By terms of the charterparty a charterer may be liable only to the extent to
which the owner has been unable to exercise the lien conferred by the charterparty. 33 In
such a case, an owner cannot claim against the charterers if he (the owner) fails to
exercise his lien, but if the owner can show that the right of lien was "either legally or
practically34 an ineffective right the failure to attempt to exercise it will not debar his
claim".35 4. The Need for Registration
22.33 A "charge" created by a company of a type specified by the Companies Act
198536 must be registered to be valid against a liquidator or other creditors. Where the
charge is created by contract 37 and falls within the ambit of the provision it will
arguably be registrable whatever its nature.38 5. The Governing Law39
22.34 It is clear that subject to any overriding forum interest the law of the place
where the assets are when the lien is exercised must control the exercise of the lien and
arguably its existence as a proprietary interest. The validity and construction of the lien
clause as a contractual provision, on the other hand, may be seen as issues for the law
governing the contract.
1. So the express provision of a salvor’s maritime lien in LOF 2000 Clause 4.7
can only operate (if at all) to counter any argument that the lien was waived by the
agreement. Further the practice of a provision for a maritime lien for bunker suppliers
cannot create such a lien and is but an illustration of the uncertainty created by misuse of
the term "lien". (As to the practice see The Saetta [1994] 1 All E.R. 851 at p. 868.)
2. As e.g. Sale of Goods Act 1979, ss.24, 25 —s.25 providing for transfer of an
interest to buyer in possession after sale "without notice of any lien or other right of the
original seller".
3. Uncertainty is not restricted to contract. In The Saetta (fn. 1) Clarke J.
commented that the meaning of "lien" in s.25 of the Sale of Goods Act 1979 was not
clear. As to that Act and equitable interests see Chapter 21.
4. See e.g. Conbill Clause 4, Shell Bill of Lading Clause 11, Gencon Clause 8 ( see
infra), Multiform 1982 Clause 24, Asbatankvoy Clause 21, Nuvoy 86 Clause 42,
Hevycon Clause 18.
5. See e.g. NYPE Clause 18 (now also including hire as well as freight), Baltime
Clause 18 (infra). For discussion of those matters which are the charterer’s
responsibility see The Cebu (No. 2) [1990] 2 Lloyd’s Rep. 316 and infra.
6. See e.g. Asbatankvoy Clause 21. Se e also for the construction of "lien" and
"encumbrance" in Saleform, The Barenbels [1984] 2 Lloyd’s Rep. 388.
7. See e.g. The Fort Kipp [1985] 2 All E.R. 168.
8. See Lyle Shipping v. Cardiff Corpn [1900] 2 Q.B. 638; The Boral Gas [1988] 1
Lloyd’s Rep. 342.
9. See e.g. Nuvoy 84, Clause 42.
10. See also e.g. Barecon A, Clause 15.
11. See The Lancaster [1980] 2 Lloyd’s Rep. 497.
12. As also in a voyage charterparty.
13. Also Barecon A, Clause 15.
14. [1979] A.C. 757.
15. But see the dispute as to whether "freight" included "hire" ( infra).
16. [1979] A.C. 757, at p. 777 (Lord Wilberforce).
17. [1977] 1 Lloyd’s Rep. 268.
18. [1978] 2 Lloyd’s Rep. 192.
19. [1983] 1 Lloyd’s Rep. 302.
20. A bill of lading clause purporting to create a lien on all goods received from a
shipper may raise similar issues. See e.g. Nedlloyd Bill of Lading, Clause 14.
21. [1983] 2 Lloyd’s Rep. 319, at p. 324 —holding also there was no personal
liability of the bill of lading holder through incorp oration of the charterparty—this being
the issue affirmed on appeal [1984] 2 Lloyd’s Rep. 129 (H.L.). See also The
Chrysovolandou Dyo [1981] 1 Lloyd’s Rep. 159. It may be arguable that even where
there is no incorporation, a lien clause in the charterparty would impose on a charterer
an obligation to enforce any lien clause in a bill of lading.
22. The Nanfri [1979] A.C. 757, at p. 781 (Lord Russell). See also The Ugland
Trailer [1985] 2 Lloyd’s Rep. 372. It is too late to exercise the lien after payment to the
charterer (ibid.).
23. The Cebu (No. 1) [1983] 1 Lloyd’s Rep. 302; The Ugland Trailer [1985] 2
Lloyd’s Rep. 372; The Annangel Glory [1988] 1 Lloyd’s Rep. 45; The Cebu (No. 2)
[1990] 2 Lloyd’s Rep. 316. An equitable assignment for security is not to be
distinguished from an equitable charge (see The Annangel Glory). Notice to the shipper
is a prerequisite of entitlement to the subfreights as between shipper and assignee (i.e.
shipowner) but as between the shipowner and charterer it is such a prerequisite only of
a statutory assignment (see the Law of Property Act 1925, s.136(1)). Even without such
notice it may be an equitable asssignment and notice going to priority between assignees
(as to which see The Attika Hope [1988] 1 Lloyd’s Rep. 439 and Chapter 23).
24. See The Ugland Trailer [1985] 2 Lloyd’s Rep. 372 commenting on a dictum in
The Cebu (No. 1) [1983] 1 Lloyd’s Rep. 302 arguably hinting to the contrary.
25. See The Annangel Glory [1988] 1 Lloyd’s Rep. 45.
26. See Taggert Beaton and Co. v. James Fisher and Sons [1903] 1 K.B. 391.
27. [1983] 1 Lloyd’s Rep. 302.
28. [1990] 2 Lloyd’s Rep. 316.
29. [1980] 2 Lloyd’s Rep. 497. In The Panglobal Friendship [1978] 1 Lloyd’s
Rep. 368 Lord Denning had suggested that the lien may be an equitable charge —but as
the case was settled there was no authoritative pronouncement.
30. [1980] 2 Lloyd’s Rep. 497, at pp. 501. 502. The exercise of the lien means that
the ship is effectively redelivered for the purposes of the hire clause. Robert Goff J.
went on to hold that if it was an equitable lien: (i) it gave no right to trace into insurance
proceeds as these did not "represent" the ship; (ii) if there was a right to trace there
were no grounds for tracing; (iii) if there was a lien and a right to trace the charterers’
lien came into existence only on the event creating it and was, therefore, subject to prior
assignment of the moneys. As to the priorities, see Chapter 23.
31.[1980] 2 Lloyd’s Rep. 171.
32.As to statutory lien, see Chapter 19.
33. See e.g. Nuvoy 84, Clause 42 —charterers continuing responsibility but
"Owners shall take all reasonable steps to obtain satisfaction of their claim by
exercising the lien".
34.E.g. the absence of storage facilities coupled with the loss of berth facilities
(see The Tropwave [1981] 2 Lloyd’s Rep. 159) or where cargo is consigned to a
foreign government which would not allow the lien to be exercised. The Sinoe [1972] 1
35. The Tropwave [1981] 2 Lloyd’s Rep. 159, following The Sinoe [1972] 1
36.See s.396 and Chapter 23.
37.And not by operation of law.
38.But a possessory lien is not within the provision. See supra and Chapter 23.
Chapter 23
Priorities 1. The General Problems of Priority

23.1 Priority of claims implies that there is competition between interests which
(i) are not only enforceable against the person creating them but are based on an interest
in the asset itself, 1 and (ii) when regarded individually are valid and enforceable
through the asset, i.e. they are "proprietary". 2 Priority becomes important when the total
amount of all valid proprietary claims exceeds the total value of assets available to
meet them.
23.2 The question of priorities in maritime law is usually taken to mean priority
between holders of maritime security interests in relation to a fund in court representing
the res against which an action in rem has been brought. However, priority is of wider
scope, and encompasses not only maritime security priority but also:
(i) other (non-security) proprietary interests of purchasers, charterers and others
between themselves and between those and security interests; and
(ii) other security interests not maritime in origin which apply to assets in which
maritime security interests exist.
23.3 It is, therefore, misleading to discuss priorities in maritime law as if priority
is a matter involving only the weighing of maritime security interests. As a first step, the
priority scene should be set, and in setting it it is impor tant to bear in mind the
fundamental distinction between "actions in personam" and "actions in rem". Priorities
outside the maritime area are between proprietary claims enforced through actions in
personam. "ctions in rem" are restricted to maritime claims but as regards such claims
actions in personam and actions in rem may be brought in relation to the same asset.
There must, therefore, be enquiry into both the in personam and in rem priority
frameworks and their relationship to each other. 2. Principles of Priority in English
Law 1. The Basic Principles of “in Personam ” Priority
23.4 The basic in personam priority principles in English law generally between
proprietary interests are:
(i) first in time prevails; and
(ii) no person can transfer more than he has ( nemo dat quod non habet).
However, considerable inroads are made into the operation of the principles by the
rule limiting the enforceability of equitable interests and other modif ications. Legal and
equitable interests
23.5 The priority framework in respect of claims in personam is based on the
fundamental distinction of enforceability between legal and equitable interests. It will
be recalled that
(i) a "legal interest" (i.e. rooted in the common law) is enforceable (subject to
registration requirements) against all subsequently created interests; and
(ii) an "equitable interest" (i.e. rooted in equity) is enforceable (subject to
registration requirements) against any subsequently created interest except a legal
interest acquired without notice of the earlier equitable interest.
23.6 Equitable interests fall into three broad categories:
(a) those interests (such as the trust) created anew through exercise of equitable
jurisdiction over the years;
(b) contracts to create common law interests (e.g. contract of sale) capable of
specific performance or title or interests that would have qualifi ed as a common law
interest but for lack of a required formality (e.g. a deed or perhaps registration), a prime
example being the equitable mortgage;
(c) informally created interests based on common law concepts but which have
developed a life of their o wn (e.g. equitable lien or equitable charge). Other
modifications
23.7 Other important modifications on the priority principle of first in time are:
(a) the introduction of registration of interests as a criterion of priority; 3
(b) allowing conduct (such as fraud or a representation) to affect the priority rules;
(c) the introduction of specific statutory rules. 4 Maritime claims “in personam”
23.8 All maritime claims may be enforced by an action in personam either solely
or where enforceable by action in rem together with an action in rem. Whether a claim
enforced in personam attracts any preference over unsecured creditors depends on the
rules applicable to claims in general. If the interest on which the claim is based is
enforceable against a third party and, therefore, proprietary, it will confer a right in that
asset not only against that third party but also against a liquidator or trustee in
bankruptcy.5 Maritime claims based on ownership, mortgage, charge, lien, whether legal
or equitable, or demise charterparty, provide the basis for such enforceability. Priority
as between these interests and any other brought within the proprietary area through
judicial construction 6 is governed by the general principles of in personam priority. 2.
The Admiralty Rules of Priority “in Rem”
23.9 An action in rem is focused on a res which may be ship, cargo, freight, or a
fund representing the asset against which the action is taken. 7 A number of general
principles operate:
(i) statutory rights of detention of public authorities 8 and claims stemming from
such rights are treated as having a priority over claims by individuals;
(ii) subject to (i)
(a) Admiralty Marshal’s costs and expenses, 9 and
(b) the arrester’s costs in the creation of the fund (in that order) are prior charges
on any fund representing the res;10
(iii) the courts retain an overall discretion exercised on equitable grounds 11 in
assessing priorities12 though precedent has established a strong prima facie framework.
In exercising that discretion, courts will take into account the conduct of the claimant,
such as the acceptance of a personal liability or inequitable conduct. 13
(iv) subject to (i)–(iii), priority between claims made through an action in rem
depends first on classification into one of the “ priority” categories and secondly on
rules of (or perhaps simply decisions as to) priority within each category. “In rem”
priority categories
23.10 The priority categories of claims in rem are maritime liens, possessory
liens, mortgages and statutory liens. The mortgage claim (itself a statutory lien for
enforceability purposes) is thereby given special priority status.
23.11 A central feature of enforceability in rem is that the very bringing of the
action in rem confers preference on the claimant and confers a proprietary interest in the
sense that the claim is enforceable against third parties. Further, the ability to arrest the
thing attached and to request that it is to be judicially sold means ex hypothesi that the
remedy affects every other claimant. Should the court order sale, all interests will be
transferred to the proceeds. 14 The detailed pattern of in rem priority is discussed later
in this chapter. “In personam” priority principles in th e “in rem” framework
23.12 On occasion in personam priority principles have been adopted as in rem
priority principles. Further, as regards in rem priority the force of the legal and
equitable dichotomy remains uncertain. The issues will be considered in t he context of
each claim. 3. Priority between “in Rem” and “in Personam” Claims
23.13 The relationship of the in rem and in personam priority pattern is not
entirely clear. The lack of clarity is particularly marked, first, when the in personam
principle of enforceability against third parties comes up against the in rem principle of
clear title conferred by judicial sale and, secondly, in the scope of enforceability of the
action in rem. The issues will be discussed after examining the in personam and in rem
priorities in English law. 3. The Priority Structure of English Law
23.14 Priority affects every proprietary interest but is usually discussed in the
context of creditors or security interests. However, the priority of those interests is
relevant not only as against like interests but against ownership and user proprietary
interests such as demise charterparties. Priority will, therefore, be discussed in relation
to (i) title or ownership; (ii) use for a specified period of time; and (iii) security
interests. 1. Title (or Ownership) “In personam ” priority—the basic rules
23.15 The structure is a straight adaptation of the general principles of in
personam priority, i.e. first in time modified by exceptions based on the legal/equitable
dichotomy and other rules. (i) Equitable interests
(a) Creation of beneficial title through a trust
23.16 A beneficial title may be created through imposition of a trust in which the
management of an asset or fund is separated from the b enefit. So a ship may be
registered in the name of one person but the beneficial owner may be another. 15 While
the trust is not a common commercial maritime transaction it may be that an asset or
fund the subject of such a transaction is held under a trust. A dealing by the trustee may
create a priority question between beneficial owner and creditor.
RESERVATION OF TITLE
23.17 In English law it is possible to reserve a beneficial title in goods sold.
However, any right in the buyer to terminate it on any use of the goods in manufacturing
others will lead to a conclusion that the right retained is not beneficial title or even that
no interest has been reserved. 16 Further where an interest has been reser ved it may be
construed not as title but as an equitable charge or other interest subject to the rules
(including the need to register) applicable to such an interest. 17
(b) Contract of sale—transfer of equitable title
23.18 It is questionable whether, in a transaction for the sale of goods, an
"equitable" (i.e. beneficial) title can pass as, it is argued, the Sale of Goods Act 1979,
by providing a statutory framework of rules for the transfer of title, excludes the
operation of equity.18 If it be possible for a purchaser to have an equitable title prior to
title under the Act, it cannot be created unless there is a clear entitlement to specific
performance of the contract without any obstacle because of conditions or rights in the
vendor. 19 (ii) Other modifications of “first in time”
(a) Registration provisions
23.19 The provision of registration necessarily raises the question of its effect on
title. Registration may have a variety of roles. So (a) it may create a new "regist ered
interest" superior to the legal interest; (b) replace the legal interest with the registered
interest; (c) create a new priority scheme; (d) provide a method of giving notice; (e)
provide simply a process of recording interests created. Each registrat ion framework
must be analysed to assess its effect.
23.20 Generally, in English law, registration has little relevance to the transfer of
title in goods or choses in action. However, the Bills of Sale Act 1878 and the Merchant
Shipping Act 1995 (replacing provisions of the Merchant Shipping Acts 1894 and
1988) do provide registration frameworks. 20
(i) THE BILLS OF SALE ACT 1878 21
23.21 The only generally applicable requirements imposed by the Bills of Sale Act
1878 are on documents recording a sale on which title passes but possession does not.
The aim of the legislation was to enforce publicity of transactions not reflected by the
facts as they appeared to be. As many of the documents commonly used in maritime
transactions are excluded from the scope of the Act, the Act is of limited importance in
the maritime area.
23.22 Documents falling outside the Act include (i) transfer of ships; (ii) transfer
of goods in the ordinary course of business; (iii) bills of sale of goods in foreign
territories or at sea; (iv) bills of lading, warehousekeepers’ certificates and any other
documents used in the ordinary course of business or documents of title thereto. 22
23.23 A bill of sale within the Act must be registered within seven days of its
execution, attested by a solicitor and specify the consideration given for it. If the bill
does not comply with the requirements of registration, form and attestation, it is void
against creditors and the trustee in bankruptcy in respect of such chattels the subject of
the bill of sale as remain in the possession of the grantor at the time of execution of
process or filing of the bankruptcy petition. In the case of bills of sale relat ing to the
same chattel priority depends on the order of registration. 23
(ii) MERCHANT SHIPPING ACT 1995
23.24 The Merchant Shipping Act 1894, section 3, provided for the registration of
British ships exceeding a specified net register tonnage, the Merchan t Shipping Act
1983 for the registration of small ships, and the Merchant Shipping Act 1988 for
registration of fishing vessels. These provisions were consolidated in the Merchant
Shipping (Registration etc.) Act 1993 and now form Part II of the Merchant S hipping
Act 1995. Regulations made under the 1993 Act continue in force. 24 Under that Act
there is created a register of British ships divided into four parts —Part I, all qualifying
ships save those encompassed by Part II (fishing vessels) or Part IV (ships registered in
a country other than the United Kingdom and demise chartered to British charterers) or
registered in Part III (small ships). 25 The qualifications for registration, set out in the
regulations in respect of each part of the register, are based on a connection between the
owner or a majority of owners (individual or corporate) or (in the case of Part IV) the
demise charterer and the United Kingdom or an EEA State through citizenship exercise
of rights of freedom of movement or right of establishment or incorporation or a
European Economic Interest Grouping. 26
23.25 The registration scheme is based essentially on entitlement to the benefits of
recognition as a "British ship" and for the ship to be recognised as "belonging" to the
United Kingdom. A ship may be detained until a declaration is made as to the country to
which the ship belongs.
23.26 The registration provisions. There are public law and private law
provisions. In the public law context registration is a prerequisite for all ships to be
British ships save small ships other than fishing vessels. These may qualify as British
ships even if unregistered provided they are not registered elsewhere and they have the
required British connection through their owners. The private law provisions set out
rules for the holding and transfer of interests in ships. They do not apply to ships
registered as demise chartered to British charterers, any matter within the ambit of the
provisions being determined by reference to the law of the country of original
registration. 27 Provisions relating to transfer by bill of sale and those relating to
registered mortgages do not apply to small ships registered on the small ships part of the
register or fishing vessels with "simple" rather than "full" registration. 28
23.27 The private law provisions are focused not on "British ships" but on
registered ships and "registered owners". Subject to any entry on the register the
registered owner has power "absolutely to dispose" of the ship provided the disposal is
made in accordance with the Act, 29 and there are provisions specifically referring to the
transfer or mortgage of a registered ship. 30
23.28 The general power of transfer has not, it seems, been construed as
overriding non-registrable interests created by operation of law —in particular maritime
liens or statutory liens in Admiralty. Further the power
"does not imply that interests arising under c ontract or other equitable interests
cannot subsist in relation to a ship or a share in a ship and such interests may be
enforced by or against owners and mortgagees of ships in respect of their interest in the
ship or share in the same manner as in respec t of any other personal property." 31
Under the Act a transfer of "a registered ship" or share, save for registered small
ships and fishing vessels with "simple" registration, is by bill of sale which may then be
registered, and a mortgage by statutory form which may then be registered. 32 The
provision regarding equitable interests applies to any ship.
23.29 The principles underlying registrations are unchanged from the repealed
legislation. However, there may be "provisional registration" for ships intended to be
registered on Part I or II which are outside the British Isles and for fishing vessels
simple or full registration (i.e. as registration for other ships). It would seem that
provisional registration is to have the same effect as registration. 33
23.30 No ship may be registered in more than one Part. 34 The register is based on
the concept of property in a ship being divided into 64 shares and subject to specified
exceptions up to 64 persons may be registered as owners. There is no joint registered
ownership of shares in a ship but up to five persons may be registered as joint owners
of a ship.35 No trust may be entered in the register but equitable interests may be created
and enforced as in any other personal property. 36 So a ship may be beneficially owned
so that the registered owner or owners holds it on trust for the beneficial owner. 37 It is
not clear whether in this context an agreement to sell a ship could result in the creation
of a beneficial interest in the purchaser. 38
23.31 A registered ship or share in it is transferred by a bill of sale 39 and the new
owner is entitled to be registered on application and compliance with requirements for
registration.40 However, it is established that the title is transferred on the execution of
the bill of sale.41 The bill of sale, which apart from small ships and exempted fishing
vessels is the mandatory method of transfer, is not a bill of sale within the Bills of Sale
Acts 1878 and 1882. There are detailed provisions for the registration of mortgages
(see infra).
23.32 Rectification of the register. The registrar may terminate the registration in
specified circumstances, including the ship no longer being eligible to be registered.
There is, however, no express provision for the court to order rectification whether
deletion or addition. Such power has, however, been exercised as being within the
courts’ inherent jurisdiction. 42
23.33 Private law consequences from public law benefits . Although the 1995 Act
(reflecting the 1993 Act) separat es the public and private law provisions, as a
consolidating Act there has been no attempt to clarify the private law role of
registration. As the system is based on entitlement to the benefits of "British ships" the
failure to register has no other conseq uence than the exclusion from those benefits and
any of the statutory private law powers relating to British ships. So the owner of an
unregistered ship does not have the statutory power of disposition, of granting registered
mortgages and the priority given by registration. However, non -registration does not
mean either the invalidity of title or the inability to create any interests in the ship.
23.34 That the private law provisions are seen as flowing from the qualification
for public law benefits is underlined by the non -application of the private law
provisions to certain categories of registered ships. As a whole they do not apply to
ships registered on the basis of being demise chartered to British charterers, and the
provisions relating to transfer by bill of sale or the creation of registered mortgages do
not apply to the "simple registration" of fishing vessels or small ships registered on the
small ships part of the register. 43
23.35 Priorities. It is clear that as between registered interests priority goes to the
first registered interest 44 but despite the age of the registration provisions 45 there
certainty ends. A prime problem is that there is no provision as to the effect of
registration or its availability on the creation of legal or equitable unregistered interests
or as to the rules of priority as between unregistered interests. Although there seems to
have been little litigation the case of The Shizelle46 in 1992 illustrates the problems that
remain—and, it has to be said, could be resolved without too much difficulty.
Unfortunately, while upholding the non -statutory interest framework in respect of
unregistered interests in a non -registered but registrable ship the decisio n in The
Shizelle may have further complicated the matter through a distinction between such a
ship and a registered ship.
23.36 Registrability, registration, legal and equitable interests . It seems that
following from the statutory power of disposal unreg istered interests in a registered
ship are seen as equitable and subject to any registered interest ( see infra). Such a
conclusion is solely an inference from the provisions as a whole, for the statutory power
to dispose subject only to interests on the register does not necessarily mean that legal
unregistered interests cannot exist —only that unregistered interests are overridden.
Further, the provision as to equitable interests could be read as maintaining the rule that
it is lack of notice rather than registration which limits their enforceability. In The
Ocean Enterprise 47 the High Court (Mr Geoffrey Brice Q.C.) ordered substitution of
one owner for another where there had been a fraudulent sale. The power to correct the
register was declared to exist "at least in cases where there has been no transfer of title
to a bona fide purchaser without notice".
23.37 Given the inferred view of the result of registration it is irrelevant to the
priority between an unreg istered interest and a registered interest whether the
unregistered interest is seen as legal or equitable. However, as between unregistered
interests the classification may be critical.
23.38 In The Shizelle it was held by Mr Adrian Hamilton Q.C. that there was
nothing in the provisions of the 1894 Act (identical in substance to the 1993 Act) which
could "possibly be construed as altering the common law position" in relation to a
mortgage of an unregistered but registrable small ship. So the mortgage would be legal
or equitable depending on the law apart from the Act. Further, concluded the learned
judge, under the Act the power to dispose of an interest according to the Act meant that
in respect of a registered ship there could be no legal unregistered charge. But, with
respect, this does not follow—for just as the legal title to the ship is transferred by bill
of sale so the mortgage is created by completion of the statutory form. The issue remains
as to whether construing the registration provisions as a whole the interest then created
is legal or equitable.
23.39 Even if there can be no legal unregistered interest in a registered ship this
leaves the question of whether unregistered ships are to be treated di fferently in respect
of proprietary interests depending on the statutory role of registration in qualifying as a
"British ship". The analysis in The Shizelle was focused specifically on a ship in regard
to which there was no obligation to register to quali fy as a British ship and a contrast
drawn with the registered ship. There is little indication in the judgment of whether for
the purpose of creating proprietary interests a distinction was seen to exist between
unregistered ships according to whether regi stration is a prerequisite to qualify as a
British ship. It may be said that the very concentration on the one type of unregistered
ship is some hint that the distinction was thought relevant. However, it is difficult to see
any relevance of an element going to nationality to the creation of proprietary interests,
particularly as in respect of neither category is registration obligatory in order to create
such interests. The title is transferred by bill of sale.
23.40 Statutory powers of owners of small shi ps and fishing vessels. It is
arguable that the registration of small ships as such and the simple registration of fishing
vessels have no effect on the creation of proprietary interests in such ships. However, in
contrast to demise chartered ships the private law provisions are not excluded as a
whole but solely those provisions relating to transfer by bill of sale and registered
mortgages. It is arguable therefore that the power of a registered owner "absolutely t o
dispose" of the ship together with the express maintaining of equitable interests apply. If
that is so, if the power is to mean anything it must carry priority consequences —i.e. the
power to override an unregistered title. It must be borne in mind, howev er, that while
the title of such ships may be registered there is no provision for registered mortgages.
Further the exclusion of the bill of sale provisions creates yet more uncertainty as to the
role of registration in the transfer of title.
23.41 The need for clarification. Registration seems clearly in the public interest
both from a private and public law standpoint. There is no reason why this should not
be reflected in its role, matching policy with simplicity and creating a comprehensive
framework of registrable, registered and unregistered interests. Until that kind of
coherence and simplicity is enacted there is no basis for distinguishing the interests
available in any unregistered ship according to registability, or at all. I t is to be hoped
that consolidating the past is not seen as a basis for freezing the future.
(b) Statutory provisions relating to priority of title. Sale of Goods Act 1979 and
Factors Act 1889
23.42 Both ship and cargo are “ goods” within the S ale of Goods Act 1979 and the
Factors Act 1889. Interests are, therefore, subject to the priority principles enshrined in
those statutes modifying the basic rule that first in time prevails. These provisions are
based either on the conduct of the owner or on the appearance of title given to a
potential purchaser. So, an owner by his conduct in holding out another as having
authority to sell, may be precluded from denying the transfer of the title; 48 a mercantile
agent in possession of goods with the consent of the owner has power to transfer the
owner’s title; 49 a seller or buyer in possession after sale may, under certain
circumstances, transfer the title or an interest not at that time in him; and a seller with a
voidable title may transfer a good title to a buyer acting in good faith and without notice
of the defect in title. 50 “In rem ” priority
23.43 An ownership claim (whether as registered, legal or beneficial owner) can
be enforced through an action in rem. The basis of the claim is a title defined in
accordance with the in personam priority rules (i.e. registered, legal or equitable).
However, the title thus established will be subject in an in rem claim to the in rem
priority framework. For this purpose an ownership claim seems to be no higher than a
statutory lien. Whether it will rank equally with other such liens on an in rem priority
basis is unclear. 2. Use for a Specified Period of Time (i) Charterparty “In
personam” priority
23.44 Subject to the effect of registration of ships and enforceabilit y against prior
mortgages, first in time is the governing principle. Insofar as a charterparty creates a
proprietary interest (as, it is submitted, does a demise charterparty) it is enforceable
against third parties who interfere with it and all subsequent charterparties, mortgagees
and purchasers. 51 Further, any charterparty may be enforced by an injunction against a
subsequent and inconsistent charterparty. 52
23.45 A charterparty is enforceable against a mortgage created prior to it where
the mortgagor is in possession unless the mortgagee can establish that the granting of it
initially affected his security. A mortgagee is taken to authorise the operation of the
mortgaged ship—an authorisation which without qualification would include the
granting of charterparties.53 “In rem” priority
23.46 Priority in rem of a charterer’s claim in relation to the ship or fund will
depend primarily on the classification of the claim as a maritime or statutory lien and on
the priority rules applicable thereto. However, it would seem that a mortgage which,
according to the in personam rules, would be subject to a charterparty should not be
given priority over a charterparty simply through automatic operation of the in rem
framework. In such a case the link between the two in terests should be sufficient to
qualify the normal in rem priority rules.54 The effect of registration
23.47 There are no provisions for registration of charterparties save that ships
demise chartered to British charterers may be regis tered until the end of the charter.
Where a ship is so registered the private law matters for which the 1995 Act provides
are to be determined by reference to the law of the country of original registration. 55
23.48 Charterparties of registered ships other than those registered because of the
charterparty are unregistered interests. In accordance with the principles discussed in
the context of ownership insofar as they are proprietary interests they will therefore be
equitable rather than legal. A charterparty of an unregistered ship will be enforceable
according to the principles discussed in the context of ownership. (ii) Lease or
bailment of goods “In personam” priority
23.49 First in time prevails subject to conduc t and any statutory modification. A
"lessee" or bailee has the right to sue third parties who interfere with the interest 56 and
presumably can enforce the interest against subsequent purchasers. “ In rem” priority
23.50 Any claim in rem must be assessed according to the statutory provisions of
the Supreme Court Act 1981. Priority in relation to the assets depends on the priority
category of the claim (i.e. maritime or statutory lien) and not on the nature of the claim
itself. The effect of registration
23.51 Bailment as such is affected by registration only insofar as the transaction
may fall within the provisions of the Bills of Sale Acts or the Companies Acts ( see
infra). 3. Security Interests
23.52 The number and characteristics of security interests are discussed in Chapter
17 in examining the nature and development of liens. Security interests in English law
are mortgage, charge, pledge and lien. As indicated there is considerable uncertainty
over definitions and distinction between the interests, due in no small part to the
overuse of the labels of "charge" and "lien" .
23.53 There may be a legal or equitable mortgage or a legal or equitable lien. The
charge is essentially an equitable concept and the pledge a legal concept. Of the
"active" security interests (i.e. those apart from the possessory lien) only the pledge
requires transfer of possession. Indeed, all the other interests assume that normally
possession will be retained by the grantor of t he interest. Conversely, it is only in regard
to the mortgage that transfer of ownership is contemplated, but a mortgage may be
entered into without such transfer. In particular, save as may be necessary for making the
ship available as a security, a statu tory ship mortgage does not involve transfer of
ownership. 57
23.54 At the extremes the mortgage and the pledge are fairly well recognisable.
Both are transactions expressly entered into and both have well -defined characteristics.
However, as said in Chapter 17 the charge and the lien are ill defined. The labels
describe consequences of transactions rather than prerequisites of creation. Unless
specified by statute no formality is required but simply a definitive indication that an
interest in an asset is granted as security for a benefit. On occasion "charge" and "lien"
are used to describe any security interest however informally created, apart from the
mortgage and pledge. On other occasions they describe a particular interest aro und
which rules have grown (as, for example, the floating charge or the maritime lien). A.
General principles “In personam” priority
23.55 Where a particular interest (e.g. a mortgage) has developed, in personam
priority rules have formed around it. Otherwise the priority rules of all security interests
are based on the general framework of first in time qualified by conduct, the dichotomy
between legal and equitable interests and statutory modifications (particularly
concerning registration).58 A "floating charge" (if not made conditional) created by a
company is created on the contract 59 but has priority only when it crystallises, i.e.
becomes a fixed charge on a particular aspect. Only on that event is the company
prevented from dealing with the assets ( see infra).
Registration provisions
23.56 Security interests in general are subject to two registration frameworks —
those provided by (i) the Bills of Sale Acts 1878; and (ii) the Companies Act 1985, Part
XII. Ship mortgages are also subject to the registration provisions of the Merchant
Shipping Act 1995, which will be discussed in the context of mortgages.
THE BILLS OF SALE ACTS 1878 AND 1882
23.57 The Bills of Sale Act 1878 is relevant to the transfer of title of a chattel, and
the Bills of Sale Act 1882, building on the earlier Act, to the creation of a security
interest in a chattel. Both Acts have as their primary purpose to publicise interests
created when the grantor retains possession, his interest thereby app earing to be less
encumbered than itis.
23.58 As is said in the discussion of the Act of 1878 in the context of ownership,
the Acts have limited application in the maritime area. Bills of sale in the sense of
documents granting a security interest not within the Acts, include 60 (i) transfers or
assignments of ships; (ii) charges registrable under the Companies Act; (iii) a pledge;
(iv) a common law lien; (v) transfers of goods in the or dinary course of business of any
trade or calling; (vi) bills of sale of goods in foreign parts or at sea; (vii) bills of
lading, warehousekeepers’ certificates and any other document used in the ordinary
course of business as proof of the possession of go ods; (viii) (in certain circumstances)
instruments creating security in imported goods. 61 As the Acts are focused on
documents, a security interest created orally does not fall within them.
23.59 Where it applies, the Act requires registration of the docum ent creating the
interest. If not registered the bill (and hence the interest) is void as between the parties
and as against third parties in respect of the chattels comprised in it. If not made in the
form prescribed by the Act it is absolutely void. 62 Further, a bill is void as against third
parties if the chattels are not accurately described and in respect of any chattels of
which the grantor was not the owner at the time of execution. 63
THE COMPANIES ACT 1985
23.60 The provisions of the Companies Act 1 948 for registration of charges
created by a company are reflected in the Part XII of the Companies Act 1985. These
are to be repealed and replaced by provisions of the Companies Act 1989, but these are
still not in force and will apply only from the date of coming into force. The 1985 Act
therefore remains relevant. There is little difference in substance between the 1948 and
1985 Act, and earlier authorities continue to be relevant.
23.61 A charge (whether fixed or floating) of any ca tegory specified in the Act
created by an English company in any of its assets will be void as against the liquidator
and creditors64 unless particulars are delivered to or received by the registrar within 21
days of creation of the charge. 65 The invalidity does not affect the obligation to repay
the money secured. When a charge becomes void the money becomes repayable. 66
Charges (including mortgages) requiring registration include:
(a) a charge for the purpose of securing debentures;
(b) a charge on uncalled share capital;
(c) a charge created or evidenced by a document which, if made by an individual,
would require registration as a bill of sale;
(d) a charge on land;
(e) a charge on book debts;
(f) a floating charge on the undertaking or property of the company;
(g) a charge on calls made but not paid;
(h) a charge on a ship or aircraft or any share in a ship;
(j) a charge on goodwill, patents, trade mark and copyright and licences thereunder
and trademarks.
23.62 In 1985 it was held in The Ugland Trailer 67 that a shipowner’s lien on
subfreights was a "book debt" requiring to be registered as such. In 1988 in The
Annangel Glory68 it was held that such a lien was a floating charge and was registrab le
under that head, and, further, there was no prerequisite for such a charge that the
property (i.e. the debt) must exist. The charge was created by the agreement to be
implemented when the debt arose —it was a present charge on future property. It
therefore had to be registered within 21 days of the contract.
23.63 The obligation to register is limited to charges "created b"’ a company.
While, therefore, any" charg"’ within the categories specified 69 is within the Act charges
imposed by law are not. So a vendor’s lien for unpaid purchase money, 70 a possessory
lien71 or (it has been held) a charging order obtained by a judgment creditor 72 are not
registrable. It would seem to follow that neither a maritime lien nor a statutory l ien in
Admiralty is registrable but an equitable lien or even a possessory lien created by
contract may well be. By creating a charge a company may be held to abandon a charge
imposed by law.
23.64 A "charge" must be distinguished from reservation of title —where title is
reserved there is no interest in the potential purchaser out of which a charge may be
created. It will, however, be a matter of construction and circumstances as to whether
title has not passed or has passed with the purchaser creating a ch arge in the vendor’s
favour.73
23.65 The provisions apply to companies registered in England and (by section
409) extend to companies incorporated outside Great Britain which have established a
place of business in England and have assets in England on which charges are created.
In NV Slavenburg’s Bank v. Intercontinental National Resources Ltd 74 Lloyd J. held
that the provision applied to overseas companies whether or not re gistered in England
and that a liquidator appointed in a foreign liquidation similar to an English winding up
could rely on it. As the provision applies to floating charges it was not restricted to a
charge on assets existing when it was made. It was irrel evant that the company had
ceased to have an English place of business prior to the liquidation.
23.66 Considerable concern was voiced over the application to overseas
companies not registered in England for it may be difficult to discover if a company has
or had a place of business in England or when it has assets here. So the obligation to
lodge particulars will be imposed if a ship owned by a company is within English
territorial waters when a floating charge is created or, indeed, when a ship comes into
those waters after the charge is created.
THE COMPANIES ACT 1989
23.67 English and overseas companies.75 The whole of Part XII of the Companies
Act 1985 will be replaced by a more comprehensive structure when the appropriate
provisions of the 1989 Act (sections 92 –107) are brought into force providing
replacement sections in the 1985 Act. Subject to limitations concerning registration of
subsequent charges, agreement and third party rights, on insolvency proceedings starting
subsequent to the charge, a charge requiring registration 76 will be void against (i) an
administrator or liquidator of the company and (ii) any person who for value acquires
an interest in the property subsequent to the charge unless particulars of the char ge are
delivered for registration within 21 days after the date of creation of the charge. 77
Where a charge becomes void the whole of the sum secured is payable. 78 A "charge" is
widely defined as "any form of security interest (fixed or floating) over prop erty other
than an interest arising by operation of law". 79 Property includes future property and it
is immaterial where it is situated. 80
23.68 The provisions apply to companies registered in Great Britain and are
applied to unregistered companies. 81 There are new provisions relating to companies
registered overseas, 82 these being applicable only to a company which has delivered
documents of registration and has not subsequently given notice that it has ceased to
have an established place of business in G reat Britain. 83 Registrable charges are those
registrable in respect of companies registered in Great Britain and apply only to
property situated in Great Britain. 84 The obligation to register and consequences of not
so doing are of the same nature as for companies registered in Great Britain.
23.69 Charges requiring registration 85 are:
(a) a charge on land other than a charge for rent;
(b) "a charge on goods or interest in goods other than a charge under which the
chargee is entitled to possession either of the goods or of a document of title to them"; 86
(c) a charge on intangible movable property of any of goodwill, intellectual
property, book debts and uncalled share capital of the company or calls not made;
(d) a charge for securing an issue of debentures;
(e) a floating charge on the whole or part of the company’s property.
This list is qualified by exclusion of specified charges on assets which would or
arguably would fall within one or more of the categories. 87 A shipowner’s lien for
subfreight is “ not to be treated" as a charge on "book debts" or as a "floating charge."
88
23.70 The void consequence of an unregistered charge is now qualified. To render
a charge void against a subsequent charge at least some of the particulars of the later
charge inconsistent with the earlier charge must be delivered for registration. 89 The
acquisition of a later interest may be made subject to the unregistered charge an d the
charge is not affected when insolvency proceedings or acquisition of interest takes
place after the company has disposed of the whole of its interest in the property. 90 The
chargee may dispose of property freed from any interest arising from a charge becoming
void. However, in that case, the proceeds are held by the chargee on trust to discharge
prior incumbrances, costs, the sum secured by the charge and incumbrances rank ing pari
passu with the charge, and subsequent incumbrances in that order —with payment of the
residue to a person authorised to receive proceeds of sale of the property. 91
23.71 Notice of crystallisation of floating charge. Regulations made under the
Act may require notice to be given of the occurrence of any event affecting the security
under a floating charge and the taking of such action in exercise of powers conferred by
a fixed or floating charge. 92 It may be provided that failure to give such notice l eads to
liability to a fine and that any crystallisation shall be ineffective until the notice is
delivered. "In rem" priority
23.72 The priority depends, first, on the classification of the claim —as to whether
it is a maritime lien, a possessory lien, a mortgage or a statutory lien other than a
mortgage; and, secondly, on the principles (such as overall judicial discretion modifying
the in rem priority category ladder). Priority will be discussed in relation to each claim.
B. Priority and each security interest
23.73 The interests are mortgage, charge, pledge and lien. 1. Mortgage
(i) Mortgage of ships
(A) REGISTRABILITY OF MORTGAGE
23.74 A mortgage of a registered ship may be registered under Part II of t he
Merchant Shipping Act 1995 and the Merchant Shipping (Registration of Ships)
Regulations 1993. Any mortgage of a ship by a company also requires registration as a
charge under the Companies Act 1985, Part XII for the mortgage to be enforceable
against a liquidator or other creditors (see supra). The Bills of Sale Acts 1878 and
1882 do not apply to ship mortgages.
23.75 A registered ship. Save for a small ship registered as such and a fishing
vessel registered by simple registration 93 a British ship which is registered may be
mortgaged by registered mortgage under the Merchant Shipping Act 1995. Any
registered ship may be mortgaged by unregistered mortgage. 94 Although it remains
arguable that a legal mortgage may be created otherwise than by registrati on, it seems
that an unregistered mortgage of a registered ship will be treated as an equitable
mortgage.95
23.76 An unregistered ship. It was held in The Shizelle 96 that a mortgage of a
small ship which was a British ship although unr egistered would be legal or equitable
depending on the law apart from the statutory provisions. 97 The argument that the
Merchant Shipping Acts constituted a code for the creation of mortgages of British ships
was rejected and in that context it was held th at the statutory power to create equitable
interests could not be read to mean that a mortgage of an unregistered ship which would
otherwise be legal was converted into an equitable interest. As discussed earlier there
is the suggestion in the judgment of a distinction between ships which could only qualify
as British ships through registration and ships which may be British ships although not
registered.
23.77 However, the only ground for distinguishing between unregist ered ships in
relation to the mortgage provisions is that the Act constitutes a code of available private
law interests for unregistered ships which to be "British" must be registered, but not for
ships which are British though unregistered. Such a conclus ion can only be an
implication from the provision that a registered ship may be mortgaged in statutory form
and the maintaining of equitable interests. As has been argued in the context of
ownership any emphasis on British ships in respect of the private l aw provisions is to
ignore the focus of the Acts on entitlement to registration and thereby the obtaining of
benefits rather than any obligation to register. Registration not being mandatory, there is
nothing in the Acts to justify drawing a different conc lusion as regards the mortgage
framework as between unregistered British ships. In other words if The Shizelle is
correct, it is correct in respect of all unregistered ships.
23.78 Just as the maintaining of equitable interests in registered ships does not
mean that equivalent interests in unregistered ships are equitable, so the power to create
a registered mortgage of a registered ship does not mean that, until registered, the
interest is equitable. Indeed, the existence of the statutory power does not ne cessarily
mean that an unregistered mortgage of a registered ship is equitable any more than it
overrides the maritime lien. It is all a matter of assessing the effect of registrability of
the ship or mortgage and the statutory provisions as a whole on int erests which could
otherwise be created. While, as has been said, it appears that the statutory mortgage
will be construed as in effect in substitution for the legal mortgage it does not follow
that the mortgage of an unregistered ship is equitable. So to construe it means the
imposition prior to registration of a framework following from registration of a ship
even though such registration is not mandatory for the creation of title in and hence
mortgage of the ship.
23.79 A power of an owner of a ship which would qualify as a British ship though
unregistered to create legal interests may have a bearing on whether to construe the Acts
as a code for the interests of private law. Such a power plays down the private law
importance of registration and may fail to encourage exercising the right to become a
"British ship". Further, if the Acts had no effect on unregistered ships there would seem
little point in the provision relating to equitable interests encompassing all ships.
Despite this, to hold that there can be no legal interest in an unregistered ship would
require the provision that a mortgage may be created in a registered ship in statutory
form to be read with the provision relating to equitable interests as prohibiting any but
equitable mortgages in unregistered ships. Given that the owner of an unregistered ship
may dispose of it, such a creative (or destructive) construction is difficult to maintain.
The decision in The Shizelle seems therefore correct but applies generally to
unregistered ships.
23.80 It follows that there being no obligation to register a ship qualifying as a
British ship, mortgages in an unregistered ship are unaffected by the Merchant Shipping
Acts. Priorities therefore depend on general principles—subject to conduct, whether the
mortgage is legal or equitable, notice of a prior equitable mortgage by a subsequent
legal mortgagee and as between equitable mortgagees the order of creation. The
recognition of legal interests in unregistered ships but not registered ships means a
change in the enforceability of rights as between holders of unregistered interests having
nothing to do with the cause of the change (the registration).
23.81 There seems no reason why, if necessary subject to liens, registration should
not be made the focal point of private law provisions of transfer and mortgage. Just as
the registered charges provisions of the Companies Act 1989 are applied to
unregistered companies there is nothing to prevent a system of registered interests in a
ship which has not been registered as a British ship. At the least the public and private
aspects of registration should be related to each other and the role of registration in each
context clarified. It is regrettable that quite unnecessarily complexities are being
repeated through more and more consolidations.
(B) EFFECT ON “IN PERSONAM” PRIORITY
23.82 In registered ships. By the 1995 Act the priority as between registered
mortgages is to be determined by the order of registration —"and not by reference to any
other matter". 98 However, where the mortgages are by a company the registration
requirements of the Companies Act 1985 will also apply (as to which see supra).
23.83 A registered mortgage, is has been held, will take priority over an
unregistered mortgage whether the latter is entered into before or after the registered
mortgage, notice being irrelevant. 99 Subject to any resurrection of notice as a priority
principle or the effect of lack of good faith, 100 a registered mortgage will be subject to
(i) any prior registered interest, (ii) any charterparty created subsequent to it not
affecting the security (see supra) and (iii) demise charterparties and the purchaser from
a harbour authority exercising its statutory right to sell for unpaid dues. 101
23.84 It has been said that where the harbour authority may sell ships of any
nationality neither the authority nor the purchaser can be expected to investigate the
register and, more, if a mortgage were to take priority an owner could mortgage it and
deprive the harbour authority of its remedy. The priority is between rights of different
statutory sources and to the extent that the purchaser does not take subject to a registered
mortgage, the rights of the harbour authorities qualify the provisions of the 1995 Act
conferring the power of the registered owner to dispose of a ship. 102
23.85 Priority between unregistered mortgages and between such a mortgage and
any other interest will follow the priority rules applicable to equitable interests. 103 The
basic rule is, therefore, first in time qualified by (i) to the extent that any unregistered
interest may be a legal interest ( see supra) the limitation applicable to equitable
interests of being subject to a later legal interest acquired without notice of the equitable
interest; and (ii) the postponement of priority because of conduct or other equitable
reason.104
23.86 In unregistered ships. The only private law provision of the Merchant
Shipping Acts relating to interests in unregistered ships is the recognition that equitable
interests may still be created. If it be right that there is nothing in the Merchant Shipping
Acts to prevent or control the creation of legal interests ( see supra), the creation and
priority of mortgages are subject to general common law and equitable rules.
(C)FOREIGN MORTAGAGES
23.87 Under English conflicts rules the validity of a foreign mortgage will be
referred to the law of the state of registration of the ship. Its priority will be referred to
the law of the forum. As a result, foreign mortgages should be slotted into the priority
ladder on the same basis as English mortgages. 105
23.88 Except where there is direct reference to the law of another country the
statutory provisions relating to registered mortgages are concerned only with mortgages
registered in the United Kingdom. In assessing priority between the United Kingdom and
a foreign registered mortgage, therefore, the statute has no direct application. There is
little doubt, however, that the statutory rules would (and should) be applied by analogy.
23.89 In 1992 in The Betty Ott106 the New Zealand Court of Appeal reached the
startling and narrow conclusion on provisions similar to those of English law that
foreign registration was irrelevant to priority under New Zealand law. As apart from the
registration the interest was an equitable charge it was subject to an earlier unreg istered
charge. The conclusion followed from a simple and blunt application of the law of the
forum but, as pointed out in a strong critique of the decision, 107 its consequences for
ship financing are extreme. Such an approach means either that registratio n operates to
preserve and govern priority only in respect of the state of registration so, if permitted,
a mortgagee must register wherever possible. The Betty Ott in effect applied provisions
of forum law clearly geared to ships connected with the forum so as to have a contrary
effect on ships not so connected. The approach looks at the language of a statute without
considering its scope, its purpose or its maritime context. Its effect in New Zealand has
been corrected by legislation 108 and its principle should not be followed.
23.90 The Merchant Shipping Act 1995 provides that in respect of ships registered
to British charterers "any matter or question" corresponding to the private law
provisions of the Act is to be determined by reference to the l aw of the country of
original registration. The provision underlines the effect of the statutory provisions as
concerned with interests under United Kingdom laws. 109 The reference to the equivalent
governing law of the state of "substantive" registration i n this context has no effect on
the application of the conflicts rules as to priority between interests under different laws
simply because the matters referred are not relevant to that issue ( see supra).
(D) “IN REM” PRIORITY
23.91 In in rem terms a mortgage of a ship is a statutory lien but is given a special
priority status. The priority will be discussed in the context of liens.
(ii)Mortgage of cargo 110
“IN PERSONAM” PRIORITY
23.92 Mortgage of cargo would be a chattel mortgage, its priority depending on
whether it was legal or equitable. 111 Such a transaction does not appear in the Supreme
Court Act 1981 as being within Admiralty jurisdiction. 112 One method of creation of a
security interest over cargo is the deposit of a bill of lading. Whether such a transaction
amounts to a mortgage, lien or pledge is a matter of construction. 113
“IN REM” PRIORITY
23.93 As the transaction is not within Admiralty jurisdiction it cannot be enforced
by an action in rem.
(iii)Mortgage of freight or charterparty hire or insurance moneys
“IN PERSONAM” PRIORITY
23.94 Creation. The right to receive freight, charterparty hire or insurance moneys
is a chose in action capable of legal or equitable mortgage by assignment. 114 A legal
mortgage must comply with statutory requirements of writing under the hand of the
assignor. It requires assignment of the whole of the freight due and notice to the perso n
from whom the money is due. 115 There can be only one legal mortgage as the entire title to
the freight is assigned.
23.95 An equitable mortgage requires no form but does require consideration. It
may take the form of a charge or a contract to create a le gal mortgage. Notice to the
debtor is not a prerequisite 116 but is relevant to priority.
23.96 Enforceability. A legal mortgage is enforceable against all subsequent
interests. An equitable mortgage may be defeated by a legal mortgage or other legal
interest, the holder of which acquires the legal interest without notice of the equitable
mortgage. Priority between equitable mortgagees of the same freight is according to the
date of notice given to the person who is to pay it. 117 Failing such notice, it is according to
the date of the assignment. Whether the assignment is legal or equitable the debtor may
plead against the assignee all the defences that were available to him as against the
assignor at the date of notice of the assignment to him.
ADMIRALTY JURISDICTION
23.97 It is arguable that "mortgage" of freight (including charterparty hire) through
an equitable assignment of the right to receive it is not only within Admiralty
jurisdiction but may be enforced by an action in personam or an action in rem.118 Where
the issue is between assignee and debtor it is simply a claim for freight and it could
hardly be argued that in adjudicating on that the court could not if necessary pronounce
on the validity of the assignment. As no insurance claim fa lls within Admiralty
jurisdiction it is difficult to see how a mortgage of insurance moneys could do so.
“IN REM” PRIORITY
23.98 Insofar as a "mortgage" of freight or charterparty hire may be enforced in
rem it is a statutory lien and will be considered in the context of liens.
(iv) Bottomry and/or respondentia
23.99 In these security transactions, the lender took the risk of a successful voyage
and personal liability could be incurred only in respect of obligations ancillary to the
loan and security. Priority questions, regarding security for the loan, could, therefore,
arise only in respect of claims in rem and in this respect both bottomry and respondentia
attract a maritime lien or, assuming personal liability can arise, a statuto ry lien.119 2.
Charges
Equitable charge—nature
23.100 The rules are as for mortgage —in modern usage "charge" tends to
encompass all types of security interest, and particularly in respect of goods no
distinction seems to be drawn between mortgage and charg e.120
CHARGING ORDERS
23.101 A charging order made under the Charging Orders Act 1979 has the effect
of an equitable charge. 121 Such an order may be made to aid in the enforcement of a
judgment debt requiring the payment of a sum of money in land, securities specified in
the Act, or funds in court.
A “freezing” injunction
23.102 A freezing injunction (formerly known as a Mareva injunction) creates no
charge and, therefore, in relation to su ch an injunction no question of priority can
arise.122 (See Chapter 16.)
“In personam ” priority—the structure
23.103 The priority of equitable charges not classified as other interests depends
on the normal priority rules based on interests at common law and in equity, as amended
by any applicable registration framework, or modified by conduct. When registration is
required the consequences of non-registration depend on the Bills of Sale Acts or the
Companies Act 1985, Part XII (see supra).
Floating charge
23.104 A floating charge is an equitable charge on assets and, while floating,
allows trading in those assets. At the moment of enforceability it crystallises as a fixed
charge on the assets held at that moment on the floating charge. Floating charges are
usually created by limited companies 123 and in England will crystallise on the winding
up of the company, the company ceasing to carry on business on the appointment of an
administrative receiver or on an occurrence specified in the debenture ("automatic
crystallisation"). Subject to any prohibition on creating later charges the priority of the
charge would attach at that moment —for only then is the company prevented from
dealing in the asset. 124 Where there is a prohibition on the creation of later charge s (a
"negative pledge"), priority will depend on whether the later charge is legal or
equitable. If it is legal it will depend on notice of the prohibition and if equitable on
general priority principles—any circumstances indicating that the company had po wer
to deal in the assets. 125 When the appropriate provisions of the Companies Act 1989
come into force any such prohibition may have to be registered.
"In rem " priority
23.105 In the Supreme Court Act 1981 a "charge" is linked to the mortgage in
section 20(2) and to the maritime lien in section 2 1(2) ( see Chapter 2). Of these, the
charge linked to the maritime lien has been in essence equated with that lien. It is,
therefore, arguable only in respect of that linked to mortgag e that a charge as such is an
in rem concept. At most, such a charge is a statutory lien though it may receive the
preferential in rem priority of the mortgage. The matter will be considered in the context
of liens. 3. Pledge
“In personam ” priority
23.106 In the context of maritime law a pledge of goods themselves is not of great
significance but it should be noted that a pledge is relevant only to corporeal movables.
It requires and depends on the transfer of possession and does not need registration
under either the Bills of Sale Acts or the Companies Acts 1985, 1989 ( see supra). A
pledge may be created through instruction to a warehousekeeper to hold goods lodged
with him for the order of the pledgee. 126 Of more immediate relevance is that a bill of
lading may be pledged by endorsement and delivery. 127 The pledgee may then take
delivery of the goods.128
PRIORITY AS AGAINST OTHER INTERESTS
23.107 As a basic rule, the pledgee’s interest depends for its validity on the title of
the pledgor. However, as with the acquisition of ownership, a pledgee acquiring an
interest bona fide from one whose title is subject to rescission for fraud will not be
subject to attack based on fraud. Further, a pledgee may receive an interest good agai nst
a vendor from a purchaser in possession or good against a purchaser from a vendor in
possession, or from a mercantile agent good against the principal. 129
23.108 Priority issues between pledgees will be rare but normally the rule is that
first in time prevails subject to any conduct by a pledgee misrepresenting the pledgor’s
power to deal with the goods.
"In rem " priority
23.109 A pledge may not be enforced in rem. 4. Liens
1. "In personam " priority
(A) “STATUTORY” LIENS
23.110 The enforceability and priority of a lien created by statute depends entirely
on the statute. Unless the context indicates to the contrary, it is probable that the lien
will simply be an adaptation of the common law possessory lien. 130 Its priority will
depend either on its own rules or on those of the appropriate lien which the statute is
applying.
23.111 Solicitor’s statutory lien.131 A charging order may be made by a court
under the Solicitors Act 1974 for a solicitor’s costs on any property preserved or
recovered through his efforts. 132 It is enforceable against any transfer operating to defeat
it, save any conveyance to a bona fide purchaser for value without notice. 133 The making
of the charging order is discretionary and will normally be declared subject to any prior
subsisting equity. 134 Naturally, it takes priority to the client’s interest in the property
made subject to the charge. 135
(B) THE POSSESSORY LIEN
23.112 (a) As against interests other than a possessory lien. The lien is
"enforceable" (i.e. the right of retention may be asserted) against any interest
subsequently acquired. It may be enforced against lega l interests created earlier
generally only if the holder of that interest may be said to have permitted a transaction
on which the lien depends. So a mortgagee of a ship may be taken to agree to a
possessory lien either arising out of a charterparty 136 or imposed by a law in a situation
arising out of the operation of the charterparty (as on the repair of the ship). 137
23.113 On general principles it should be enforceable against an equitable interest
created earlier if the holder has no notice of the earli er interest. 138 If created by a
company (i.e. through a contract) a possessory lien may be within the Companies Act
1985 requiring delivery of particulars for full enforceability. 139 It would seem to be
within the definition of the "security interest" with in the replacement registration
provisions of the Companies Act 1989 ( see supra). It would not seem affected by the
registration scheme of the Merchant Shipping Act 1995.
23.114 Rights of unpaid seller of goods. The unpaid seller’s rights under the Sale
of Goods Act 1979 include, but are not restricted to, a possessory lien. 140 The right of
stoppage in transit confers a right to resume possession of goods while in transit when
the buyer becomes insolvent, and exercise of that right creates a priority issu e just as
much, if not more, than a possessory lien. It is defeated if there is a sale of the goods by
transfer of a document of title to a person taking it in good faith and for valuable
consideration and it is subject to any security interest created by such a transfer. Apart
from these exceptions, however, the right of stoppage is not affected by any sale or
disposition that the buyer makes unless the seller consents. 141 It is, however, subject to
the shipowner ’s lien for freight. 142
23.115 Statutory rights of detention and sale .143 The statutory rights of port
authorities to detain ships are statutory possessory liens but with a power of sale
attached. An authority selling by virtue of the power of sale will confer a title free from
encumbrances including any registered mortgage. 144
23.116 (b) As between possessory liens. Such a conflict would be unusual as, ex
hypothesi, the lien depends on possession. It is only if a possession is surrendered by
fraud or if it were held that a redelivery wa s for a specific purpose 145 that any such
priority question would arise. First in time would prevail.
(C) THE EQUITABLE LIEN
23.117 As with the equitable charge and equitable interests generally, the equitable
lien is subject to the general prio rity framework of first in time subject to conduct,
statute (including registration provisions) and the possibility of defeat by a later legal
interest acquired without notice of the lien. Priorities between equitable liens are
governed by the general priority framework of first in time subject to the modifications
of conduct and statute.
(D) THE “FREEZING” INJUNCTION
23.118 Despite the view of Lord Denning that the issue of a Mareva injunction was
akin to attachment of assets, 146 it was established that it remains a remedy in personam
directed at the owner of the assets, 147 and that applies to its successor the "freezing
injunction" . It creates no proprietary interest in the assets and, therefore, does not
confer any right ofpriority in personam or in rem over any other unsecured creditor or
against a purchaser.148
2. "In rem " priority
23.119 Subject to Admiralty Marshal’s and arrester’s costs 149 and statutory rights
of detention of harbour authorities 150 the in rem priority categories are (i) maritime
liens; (ii) possessory liens; and (iii) statutory liens in Admiralty. In in rem terms
mortgages are statutory liens but are considered as of themselves forming a priority
category.151 Priority issues go to (a) priority of claims in each priority category as
against claims in other categories; (b) priority of claims within each category; (c) the
relationship between the in rem and in personam priority schemes. (a) Priority between
the categories of liens
23.120 A fairly definitive priority ladder has been built but uncertainties persist,
particularly in respect of the relevance of the order of creation of interests and the effect
of conduct.
23.121 (i) Maritime liens. It is established that maritime liens have priority over
mortgages and statutory liens, 152 no matter in which order the claims arise. However, it
appears that though a maritime lien has priority over a possessory lien created
subsequently to it,153 it will be subject to a possessory lien created prior to it. 154 On the
grounds of waiver if nothing else, the precedence of a maritime lien would be subject to
any interest created with the authority of the maritime lien holder. 155
23.122 (ii) Possessory liens. The lien is applied in Admiralty in its common law
application and also has its maritime application in, for example, the lien for general
average or freight. The lien has been fully incorporated into "priorities" in rem with
little difference from the priority accorded in personam. As a result, the person
asserting a possessory lien cannot object to the arrest of a ship or other arrest by the
Admiralty Marshal, 156 but subject only to claims for the Marshal’s expenses and
arrester’s costs the priorit y will be recognised 157 as regards interests created
subsequent to its creation. So a maritime lien, mortgage and a statutory lien created
subsequently to the possessory lien will be subject to it.
23.123 A possessory lien is subject to a maritime lien created prior to it, and there
seems to be no reason why its in rem priority based on possession should differ from its
in personam priority. If so, apart from any argument based on authority to create, it wi ll
be subject to any statutory lien (mortgage or other) created prior to it.
23.124 (iii) Statutory liens in Admiralty.158 For the purpose of priority rules
mortgages are put into a special category and priority between mortgages and other
statutory liens in Admiralty treated as a matter of priority between categories. It is
suggested that charges should be equated with mortgages.
Mortgage and charges
23.125 (i) Registered mortgage. It is not clear that registration of a mortgage has
any effect on the priority as against an interest other than the registrable interest of a
purchaser or mortgagee. It would indeed be odd if the act of registration of itself gave
priority over interests which could not be protected by registration or at l east an interest
the purpose of which could not be accomplished by a registered interest. 159 On the other
hand the failure to register could justifiably mean loss of priority ( see infra).
23.126 As a matter of general principle a mortgage claim is subject to a maritime
lien whether it arises before or after the mortgage, but takes priority over any statutory
lien arising subsequent to the mortgage being created. 160 Priority between a statutory
lien other than a mortgage and a subsequent mortgage is unclear with the issue perhaps
becoming a realistic possibility only on the ruling that a statutory lien is created on the
issue of the writ in rem (now in rem claim form) rather than on arrest. 161 Within the in
rem framework a mortgage is a statutory lien and should be accorded priority as such,
except insofar as it can be demonstrated that its nature creates grounds for an exception.
While long-term financing interests are recognised in conferring priority over interests
created subsequently it does not follow that the lender should be able to assert his
security so as to destroy security interests already created.
23.127 (ii) Unregistered mortgage. The Supreme Court Act 1981 provides for the
enforcement by action in rem of a legal or equitable mortgage and makes no distinction
as to enforceability between registered and unregistered mortgages. 162 So all types may
be enforced by an action in rem.
23.128 If an unregistered mortgage is an equitable mortgage and the in personam
limitations apply a purchaser would not be bound by it unless he knew of it.
Presumably, the ability to enforce the equitable mortgage in rem would be remedial and
limited accordingly. However, as in the in rem framework, a purchaser is subject to
claims which outside the in rem area have no proprietary force (as, for example, a
claim for cargo damage) it would be curious if a claim which did have such proprietary
force was treated as less powerful in that it is binding only on notice.
23.129 In 1922 in The Byzantion163 Hill J. intimated that the lack of registration of a
mortgage may have priority consequences in any conflict with other statutory liens.
However, it could be argued that if a legal unregistered mortgage is recognised it is
because of the limited role given to registration. 164 Further, notice is largely irrelevant
to the security aspects of statutory liens and even if the unregistered mortgage is
equitable it may be that as against liens the priority of the mortgage as such be
recognised. On the other hand, it is "registered" mortgages which are recognised
internationally and the failure to register should perhaps be penalised —at least so as to
make the claimant (whether a legal or equitable mortgagee) share pari passu with other
claimants having statutory liens.
23.130 (iii) Equitable charge and equitable lien. An equitable charge is included
within the in rem framework by virtue of the Supreme Court Act 1981, section 21 (2)(c)
and 21(7)(c). The priority conferred on an equitable mortgage should also be conferred
on an equitable charge insofar as these are treated as like concepts. An equitable lien
expressly created by contract is in substance the same as an equitable charge and its
priority should be treated accordingly. The equitable lien imposed by law rather than
agreement should, it is suggested, also carry the same priority ratings, as from a policy
point of view English law sees an imposed lien as justified without express provision .
It is indeed arguable that the equitable charge or equitable lien should have a claim to
higher priority than an equitable mortgage where there is a registration scheme of which
the mortgagee may take advantage.
Statutory liens other than mortgage or cha rge claims
23.13 1 For in rem priority purposes, apart from mortgages and charges, all claims
enforced through actions in rem should be treated as equal in force. Whether or not the
claim is proprietary in in personam terms, it is suggested that the priority in rem
focuses on the availability and use of the action in rem.
23.132 The priority of claims attracting statutory liens as against maritime liens,
possessory liens and mortgages is set out in the consideration of those interests. A
statutory lien is subject to maritime liens whenever created and to registered mortgages
and possessory liens created prior to the creation of the statutory lien. The priority
between a statutory lien and (i) a subsequent registered mort gage, and (ii) an
unregistered mortgage (legal or equitable) whenever created is not clear. Availability of
registration provides justification for the priority given to a later registered mortgage
over an earlier unregistered (but registrable) mortgage, b ut it is at least arguable that the
act of registration should not confer priority over an earlier non -registrable lien. In
other words unless non-registration is to operate against the holder of a registrable
interest the "in rem" rules of priority (statutory liens being of equal priority) should
prevail. The alternative is to accept that enforcement through the action in rem does not
lead to in rem priorities, and that, apart from any factor depending on registrability it is
the common law/equity in personam rules that apply. (b) Priority within each category
of lien
A. MARITIME LIENS 165
23.133 General principles. In 2000 in The Ruta166 David Steele J. approved the
approach to priority summarised by Thomas:
"[T]he Admiralty and Appellate Courts hav e adopted a broad discretionary
approach with rival claims ranked by reference to considerations of equity, public
policy and commercial expediency, with the ultimate aim of doing that which is just in
the circumstances of each case." 167
Nevertheless the approach has yielded some general principles not all of which
will necessarily be relevant in every case but which at the least implement the very
broad considerations said to the basis of the discretion. 168 These are:
(a) the person who preserves the res for the benefit of all claimants has a prior
claim to other claimants 169—so that the claim based on an event latest in time which
"has the result of preserving the interest of the holder of another existing lien" 170 will be
given priority;171
(b) reasons of public policy in:
(i) interests of masters and seamen (the wages lien); 172
(ii) encouragement of salvage (the salvage lien); 173
(iii) safe navigation and recompense for loss suffered through failure to carry it out
(the damage lien);174
(c) a distinction between liens resulting from:
(i) arrangements consciously entered into; and
(ii) events occurring outside such arrangements. Where the basis of the lien is an
arrangement entered into the claimant may be said to have joined the adventure, to have
acquired a "voluntary lien", or become the holder of a lien based on contract ( ex
contractu). Where the claimant has in no sense joined in any project, the action is based
on an "involuntary lien" or a lien ex delicto, and for these reasons (being in essence
variants on a theme) should have priority. The only "involuntary lien" is the damage
lien;175
(d) alternative remedies available to the lien holders; 176
(e) an adaptation of the principle applicable to priorities between categories —the
conduct of the lien holder. 177
THE PARTICULAR LIENS
23.134 (i) The damage lien. (a) As against other maritime liens . The public
policy basis of the damage lien of the need to ensure safe navigation gives it high
priority. Until the decision in The Ruta it appeared to be outweighed only by a lien
arising subsequently to it and preserving the res. On that approach a damage lien,
therefore, has priority over all prior liens but is subject to a subsequent salvage lien, 178a
bottomry lien insofar as it preserves the res179 and (possibly) a wages lien. 180
23.135 In The Ruta181 the wages claimants were given preference over damage
claimants where the owner was bankrupt. It was said that neither could rely on
preserving the res, the public policy considerations were evenly matched and there was
no negligence in the crew claimants.182 The "voluntary" nature of the wages lien was
somewhat illusory as against a damage lien —once engaged the seaman had to provide
services. The decisive factors were the lack of alternative remedy, 183 the likely relative
values of the claims and, lacking priority, the disincentive to crews to disembark from
ships to try and secure payment of the claim by other creditors. In support of the priority
was cited the priority given by the Mortgages and Liens Conventions and in other
jurisdictions. In essence the decision puts the policy consideration of wage claimants
higher than damage claimants where neither has an alternative remedy and no other
factor points to one or the other. Given the common approach elsewhere and
international Convention that is to be welcomed.
(b) As between damage liens. Damage liens rank equally and the claims are dealt
with pari passu.184
23.136 (ii) The salvage lien. (a) As against other maritime liens . " . . . the
salvage service concerned has preserved the property to which the earlier liens have
attached". 185 It follows that a salvage lien has priority over all prior liens. As to
subsequent liens, it appears to be subject only to a later damag e lien186 and any other
lien which preserves the res.187
23.137 (b) As between salvage liens. The "inverse order of attachment" rule holds
full sway—the later takes priority over the earlier. The rule is based firmly in this
context on the principle of preservation of the res.188
23.138 (ii) Wages lien. (a) As against other maritime liens . As regards other
liens, seamen’s and masters’ wages are not distinguished. The policy of protection of the
seaman provides a foundation for giving a wages claim a high priority supported on
appropriate occasions by subordinating a master’s claim for wages or disbursements to
the seaman’s claim if the master undertakes a personal liability for payment of wages.
On the other hand, wages liens are not treated as necessarily having the highest priority,
the policy supporting salvage liens and where wages claimants have an alternative
remedy, a damage lien189 outweighing that of the wages lien.
23.139 A wages claim is subject to a salvage lien occurring subsequent to the
earning of the wages and, unless the earning of the wages can be seen as preserving the
res, even when the claim is based on wages earned after the dmage lien is created. 190 Its
priority in respect of a damage lien (apparently whether prior or subsequent) will
depend on weighing the relevant general principles. 191
23.140 A wages claim has been held to have priority over a bottomry bond entered
into both before and after the earning of wages on the same voyage. 192 If today it were to
become a question other than academic as against a bottomry bond, a wages lien would
be displaced only by considerations of personal liability on the bond 193 or preservation
of the res.
23.141 (b) Between wages liens. Until 1984 a seamen’s wages lien seems to have
priority over a masters’ wages lien while the wages of seamen and wages of masters as
between themselves rank pari passu.194 However, in The Royal Wells,195 Sheen J.
thought the rule outmoded and unjust. Master and crew are all employees of the
shipowner and their claims are to be ranked pari passu. It may be that wages earned at
different times may have a different priority if separated by a claim for salvage. 196
23.142 (iv) Disbursements lien. (a) As against other maritime liens. A master’s
disbursement lien appears to be treated as a master’s lien for wages. 197
23.143 (b) Between disbursements liens. Whether the claimant is the same or there
are different claimants, disbursements liens rank "on precisely the same footing as his
claim for wages" 198—the claims rank pari passu.
23.144 (v) Bottomry.199 (a) As against other maritime liens . It appears that
bottomry bonds were subject to
(a) a wages claim arising from the same voyage 200 if the wages are earned prior to
the bond201 and probably if earned after the bond 202
(b) a damage lien save insofar as a later bond increased the value of the res.203
However, in opposition to a salvage lien , a bottomry bond has been treated much
as an equal and priority has operated on the principle of inverse order of attachment. 204
If bottomry bonds were to be re-established as security interests of importance priority
should depend on the analysis of their function in relation to other liens. Priority in
relation to salvage should surely depend on the respective roles in the preservation of
the res.
23.145 (b) Between bottomry bonds. The last in time ranks first. 205
B. STATUTORY LIENS
23.146 For purposes of priority between statutory liens, the liens must be
classified into three categories: (i) mortgages and charges (given a priority category of
themselves); (ii) ownership (raising distinct questions of policy going to the nature of
the action in rem); and (iii) the remainder.
23.147 1. Mortgage or charge. (i) Mortgage of ships. In English law there are
registered and unregistered ship mortgages. As ship mortgages are treated in an in rem
action as a distinct priority category, there is no reason why the in rem priority rules
within that category should be different to those applicable to a claim in personam.
There may, however, be reasons why as against other statutory liens the important factor
is the mortgage rather than its legal or equitable character.
23.148 The priority of registered mortgages depends by statute on the date of
registration, it being irrelevant whether they are enforced by action in rem or action in
personam. The recognition of the legal unregistered mortgage in The Shizelle206 flows
from the restricted role of the statutory registration scheme. In that case the holders of a
mortgage in an unregistered (but registrable) ship sought to enforce it by action in rem
against a later bona fide purchaser without notice. An application to strike out the action
failed, it being held that the common law principles applied and that priority was
dependent on whether the mortgage was legal or equitable.
23.149 No point was taken as to any difference between "in personam" or "in
rem" priority. On the facts of the case the issue of the writ in rem could create no " lien"
enforceable against the purchaser, and the "in rem" process was therefore seen solely as
enforcing a proprietary interest defined according to "in personam" principles, as
modified by statutory registration provisions. It may be, however, that subject to
statutory registration provisions where a proprietary interest is created by the in rem
process it is the "in rem" or statutory lien categorisation that should prevail. Further in
may be that registration provisions will have to be construed with "in rem" principles in
mind (see infra).
23.150 (ii) Mortgage of cargo. An action in rem will not lie to enforce a mortgage
of cargo.207
23.151 (iii) Mortgage of freight or charterparty hire . Only if an action in rem
will lie against cargo or freight will any question of "lien" priority arise. The Supreme
Court Act 1981 provides specifically for an action in rem against property other than a
ship only in regard to maritime liens and forfeiture. Any ability otherwise to bring an
action in rem would have to be, therefore, rooted in the sweeping up clause and thereby
through the Administration of Justice Act 1956 to the general Admiralty jurisdiction
prior to 1 November 1875. 208
23.152 THE RIGHT OF AN ASSIGNEE OF FREIGHT. In 1933 in The Zigurds209
Langton J. held that a claim enforceable in rem could be so enforced by an assignee of
that claim. Although the decision was reversed by both the Court of Appeal and House
of Lords210 it was on the application of priority principles rather than on whether an
action in rem would lie.
23.153 On the assumption that an in rem claim will lie, the priority principles
adopted in The Zigurds between two assignees of the same claim are those applicable
in an action in personam—i.e. as between two equitable assignees priority goes to the
first to give notice to the debtor,211 and if neither have given notice it is the first in time.
On this approach as with mortgage, on the issue of priority between assignees the rules
generally applicable in rem would give way to the in personam approach. The
principle must, however, be subject to any priority as between the claims themselves.
23.154 (iv) Equitable charge and equitable lien . An equitable charge and
equitable lien should be treated for priority purposes at least as equivalent to an
equitable mortgage. Such interests may have a claim to higher priority where
registration is available to the mortgagee. However, having regard to the balance
between long-term financing and other security interests the priority of the charge or lien
should not be equated with the registered mortgage.
23.155 2. Ownership claims.212 Through the availability of an action in rem
claims of ownership or co-ownership may be said technically to be statutory liens. But,
as has been argued, the action in rem differs in its function in relation to an ownership
or mortgage claim from that in relation to claims which without the action in rem would
not be proprietary. To date, unlike mortgages, ownership claims have not been seen as
falling into a unique in rem priority category. Unless such a category is created on
policy grounds the priority of an in rem claim based on ownership must, it is suggested,
be ranked with other claims of the same category, i.e. statutory liens. If, apart from
statutory registration provisions, an ownership claim were to be ranked higher than
other statutory liens it could fundamentally affect the in rem concept, a primary element
of which is security against an owner. It is suggested that, subject to priority conferred
by statute on registered ownership, in the in rem priority framework an ownership claim
is enforceable and takes priority as a statutory lien. It does not appear that registration
under the Merchant Shipping Act 1995 or its predecessors will affect maritime liens or
statutory liens in Admiralty.
23.156 Beneficial ownership. Although there is no specific reference in the
Supreme Court Act 1981, section 20, to beneficial ownership the concept is recognised
in the statutory provisions for registration 213 and, indeed, in regard to defendants, in the
Supreme Court Act, section 21(1) and (4). It would seem inconceivable that an
equitable mortgagee or chargee could enforce a claim through an action in rem but an
equitable owner could not.
23.157 Given the ability to enforce the claim through an action in rem, equitable
ownership would have a lower priority than other statutory liens only through
importation of the in personam principle of notice. However, it is urged that certainly
as regards other claims not based on a proprietary interest, in personam enforcement
through an action in rem as a statutory lien should carry the priority of that lien. The
legal and equitable distinction thought too fundamental to be obliterated by the in rem
framework may (with some difficulty) be retained as between claims in respect of
which the in rem process is primarily a method of enforceability rather than conferring
of a lien.
23.158 3. Statutory liens in Admiralty other than those based on ownership,
mortgage or charge. (i) As between different liens. Statutory liens seem to be ranked
equal—the claims sharing pari passu. There is no clear judicial statement to this effect
but such authorities as are reported all treat differing claims as having identical
ranking.214
23.159 (ii) As between liens of the same class . All the authority is focused on
claims for necessaries, stating clearly that such claims rank pari passu.215 In the light of
the general application of the principle of pari passu as between different statutory
liens there is no reason why the principle should not apply generally as between liens of
the same class. 4. Priority Relationship Between Actions “in Rem” and “in
Personam” Proprietary Interests
23.160 Although English law has long supported the cumulative effect and often
concurrent availability of actions in personam and actions in rem it has not addressed
itself to the relationship of interests enforceable by those actions. The concept of the
action in rem means that:
(i) the provisional remedy of arrest is available;
(ii) specified claimants are given preferred creditor status in relation to a
particular asset or its substitute;
(iii) there has developed an "in rem" priority scheme with its own relative values,
encompassing proprietary interests created by the action in rem and those enforceable
as such by an action in personam but enforced by an action in rem;
(iv) a sale of the asset by the court wipes off all such claims which could have
been made in relation to the asset prior to the sale and transfers them to the proceeds. 216
23.161 However, the same asset may be subject to proprietary interests in
personam with "in personam" priorities, such claims in regard to that asset being
affected in "in personam" terms by a sale by the court only when the asset is sold in
execution of the claim. Such a sale does not have the effect of conferring the clear title
of the judicial sale as part of an action in rem.217 No doubt historical jurisdictional
conflicts between common law, equity and Admiralty have led in this context as in
others to a legacy of separate but connected frameworks. It is surely time for a statutory
attempt at incorporation.
23.162 Apart from statutory priority rules applying to both actions in personam218
and actions in rem the first requirement in integration of the in personam and in rem
priority ladders is the identification of the function of the action in rem in respect of the
particular claim. Where claims involve any claim which but for the action in rem would
not be proprietary (as, for example, a carriage claim) there seems no alternative to
applying in rem priorities and enforcement through judicial sal e. Where the case
concerns solely proprietary interests enforceable as such by action in personam (as, for
example, ownership and mortgage), as is shown by The Shizelle,219 it is arguable that it is
the in personam priorities which control. If that is so the function of the action in rem is
simply to provide for the provision of arrest and judicial sale.
23.163 As is also illustrated by The Shizelle it is unclear how the statutory scheme
of registration of and mortgages in ships fit with rights created by and through the action
in rem and in particular maritime liens and statutory liens in Admiralty. As indicated
earlier there is a need for the role of registration to be made clear. 1. Ownership
23.164 The action in rem and its characteristics of the preferred claim,
enforceability against purchasers and the judicial sale is ex hypothesi an exception to
the general in personam priority framework. In particular, according to in personam
rules with few exceptions, 220 subject to proprietary interests created in a ship before he
acquired it or created by him, a shipowner has an interest enforceable against all the
world. Through actions in rem a shipowner is liable to attack through a far greater
number of antecedent interests and some interests created subsequently, even though he
was not responsible for their creation. As part of the enforceability of these interests his
ship may be sold and his interest reduced to a claim of low priority on the resulting
fund.
21.165 Given the in rem framework it is difficult to argue as a matter of general
principle that ownership rules applicable in personam have any place within the in rem
framework, save as they may be adapted in that framework. An ownership claim through
an action in personam should be subject to all in rem claims.
21.166 On the other hand the function of the action in rem in an ownership claim is
arguably simply to enforce an interest recognised in personam as proprietary and
therefore subject to "in personam" rules. The in personam proprietary characteristics
may well control (see supra). 2. Mortgage, Charge and Lien
23.167 Claims based on mortgage or charge are integrated into the in rem
framework. An equitable lien would seem enforceable by an action in rem under the
general label of an equitable charge. As with ownership a mortgage or charge enforced
through an action in personam should be subject to all in rem claims, but when sought to
be enforced by an action in rem is arguably governed by the in personam proprietary
characteristics. 3. Interests Created by Statute
23.168 The effect of an interest created by statute depends on an initial
construction of the statute as to whether it amounts to a novel concept or simply an
adaptation of a concept already recognised (such as a possessory lien). Insofar as the
statute creates a "novel" interest its relationship to the in rem framework requires
examination in the context of its provisions. 221 Statutory rights of port authorities to
detention and sale of ships
23.169 It is established that the statutory rights of port authorities to detain and sell
a ship "is not within the ambit of priorities" which operate in the case of judicial sale on
the residue of the proceeds once they are paid into court. 222 Although the authority may
have a lien for its claim the entitlement to prior payment depends not on the assertion of
that lien but on the exercise of statutory rights. 223
23.170 The statutory right of detention is a statutory possessory lien in the sense
that it is what it says but its differing priority rank makes it confusing to use that label. It
is not settled in English law whether the statutory right is transferred to the proceeds of
sale if a ship is sold by the Admiralty Marshal, 224 but, if not, it appears that the right
persists despite such a sale. In The Queen of the South 225 and later in The Freightline
One226 it was held that, with the consent of the authority, the claim could be (and was)
transferred to the proceeds to be paid prior to other claims out of the fund. The
difficulties in treating statutory rights of detention and sale as rights only against the ship
have therefore been resolved so as to permit their enforceability —but that resolution is
but an illustration of the need to fit together the in rem process and other claims.
Solicitor's lien under the Solicitors Act 1974 227
23.171 The lien has been held to be subject to an existing maritime lien 228 and to
take priority over necessaries supplied after the institution of the original suit. 229
However, the authorities seem to follow no principle but simply a balancing of claims
in particular circumstances. It should be recalled that the "security interest" of the lienee
is created only on the making of a charging order and that the security interest of a
statutory lien in Admiralty is created only on the issue of an in rem claim form. The
authorities seem to look at the institution of the original suit, (where appropriate) the
time of supply of necessaries and the arrest of the ship all as relevant factors. However,
in principle, it would seem that if order of creation of the interest is to govern, it is
order of creation of the security interest. Further, it may be arguable that a maritime lien
is of such force that it should be given priority whether created before or after the
solicitor’s lien. Limitation funds
23.172 There may be a number of claimants against a limitation fund established
pursuant to the Convention on the Limitation of Liability for Maritime Claims 1976 as
initially enacted by the Merchant Shipping Act 1979 and as from 1 January 1996 by the
Merchant Shipping Act 1995. In distributing the fund it is statutorily provided that no
lien in respect of any ship or property affects the proportions. 230 The fund is distributed
pari passu in proportion to the claims. 4. The Execution Creditor
23.173 The delivery of a writ of fieri facias to the sheriff makes a judgment
creditor a preferred creditor. 231 In The James W. Elwell 232 an execution creditor
procured a writ of fieri facias prior to the issue of various writs in rem for claims for
necessaries, wages advanced and by the master for wages. Pursuant to the writ of fieri
facias the sheriff took possession of the ship and tried to sell it. Because of the claims
against it he failed and the judge ordered a sale by the Marshal which, as Hill J. said,
gave a "title free from all liens".
23.174 Hill J. first gave priority to the master for wages earned prior to and after
the issue of the writ of execution. He said that the creditor could seize only what the
debtor has. He treated the execution creditors in the same way as necessaries claimants
whose claims are made subject to any claim for wages earned after arrest, saying that
with the consent of the court the execution creditors could have paid off the master.
23.175 However, Hill J. gave priority to the execution creditors over the claims
for necessaries which, as he said, only became secured claims after the claim of the
judgment creditors had become secured. In this respect, he refused to apply the in rem
rule of pari passu applicable to statutory liens but applied the in personam rule of first
in time. As a result, the judgment creditors were able to obtain execution of their
judgment from the proceeds of sale representing the ship, and in priority to statutory
liens created after the creation of their security. In principle, therefore, the execution
creditors will take subject to any statutory liens created by an issue of an in rem claim
form prior to the issue of the writ of fieri facias, but in priority to such liens created
subsequent to the issue. A charging order
23.176 Such an order takes effect as an equitable charge. In 1981 in The Silia233the
ship (including fuel) was sold in an action in rem. After the sale, judgment creditors of
the shipowners obtained a charging order n isi on the proceeds of the sale of the fuel oil
contending that the oil was not part of the ship and, therefore, was available to them as
secured creditors in personam. Sheen J. held that the oil was part of the ship and
that, therefore, the oil proceeds w ere part of the fund available only to judgment
creditors in rem. The plaintiffs’ claim was within Admiralty jurisdiction but they had
not issued a writ in rem.
23.177 It does not seem to have argued that even if within " in rem" jurisdiction the
funds are as available to secured creditors in personam as in rem. Yet do they not
represent assets of the shipowner and, if a creditor has a security interest in those
assets, by what rule is he excluded simply because there are creditors in rem? The
assumption implied in such a view is that there is no problem of priority between in
personam and in rem creditors (at least in respect of proceeds of sale) as only the in
rem creditors have a claim. As the claimant in The Silia could have enforced the claim
in rem this approach is to be supported in that case.
23.178 However, if the approach is applied to judgment creditors who cannot
enforce their claims in rem proprietary interests are enforceable in relation to the ship
only to the extent of any funds remaining after the in rem claims are satisfied. Such an
approach would be inconsistent with the approach to issues under the Solicitors Act
1974 and to the decision in The James W. Elwell. The priority relationship between in
personam proprietary interests and in rem claims requires examination. 5. Effect of
Sale by the Court in Action “in Rem”
23.179 It is suggested that subject to statutory provisions 234 no proprietary interest
in personam can survive the sale by the court in an action in rem. Insofar as such an
interest is enforceable in rem the claimant should be made so to claim so as to qualify to
share alongside other claimants in rem. Insofar as a proprietary interest cannot be
enforced in rem the policy behind such a sale is clear and c ompelling enough to transfer
such a claim to the proceeds of sale. 6. Summary
23.180 The function of the action in rem may vary according to whether the right
enforced is, in "in personam", proprietary. It may be that "in personam" proprietary
rights enforced in rem retain their in personam proprietary characteristics. But that
should not affect the enforceability against them of interests which become proprietary
through the action in rem. Further, any proprietary claim enforceable as such only in rem
but not so enforced should be subject to all claims in rem. The priority of a proprietary
interest enforceable only in personam and a claim in rem must depend on the view
taken of relative policies behind each claim. Attempts t o work these out in particular
cases can be seen in The James P. Elwell and cases concerned with solicitor’s statutory
lien. Much as with the adaptation of in personam rules within the in rem framework, it
calls for a priority evaluation to be consciously taken in the context of fitting together
the two schemes and the consequences of preferring one to the other. As part of the
general preference of the in rem scheme as against the in personam scheme subject to
statutory provisions, a judicial sale in in rem proceedings should clear the title of all
interests. 5. Attempts at International Frameworks—Mortgages and Liens
23.181 The Conventions on Liens and Mortgages of 1926, 1967 and 1993,
reflecting attempts to create a framework for recognit ion of and priority between
maritime liens and mortgages, are discussed in Chapter 17. It suffices here to refer to
that discussion and to stress that the achievement of at least some common ground would
seem well worth the occasional domestic deletion or addition of a lien or two on the
part of the maritime nations (or as The Ruta235 demonstrates, a move towards the
priority scheme of the Conventions).
1. Holders of "ersonal"(as distinct from "roprietary" claims have no interests
enforceable against third parties and are unsecured creditors in bankruptcy sharing
equally among themselves. A contractual benefit may be assigned and statutory
provision may be made for transfer of the burden or benefit of the contract (as in respect
of lawful holders of a bill of lading made by the Carriage of Goods by Sea Act 1992
and as regards the benefit of contracts within it, the Contracts (Third Parties) Act 1999).
A freezing injunction confers no priority (see Chapter 16). The phrase in personam is
confusing in that it may indicate that a claim is personal only, i.e. is non -proprietary in
the sense that it lies only against the person undertaking the obligation (as e.g. a
contractual claim); but in the maritime context an action in personam simply indicates
that the action not being in rem is being enforced as any other claim, and whether it is
proprietary or not depends on the nature of the claim ( see infra).
2. A preliminary question is to identify the interest created. So an attempt to
reserve "title" may be construed as a lien with differing consequences to those intended.
See e.g. Re Bond Worth Ltd [1980] Ch. 228. Compare Clough Mill Ltd v. Martin
[1984] 3 All E.R. 982. See also fn. 16.
3. As e.g. the Companies Act 1985, Part XII; the Bills of Sale Acts 1878 and 1882;
the Merchant Shipping Act 1995, Parts I and II and Sch. 1 ( see infra).
4. See e.g. the Sale of Goods Act 1979, ss.24, 25 and 47; th e Factors Act 1889,
ss.8, 9 and 10 (purchasers in good faith defeating earlier interests) ( see infra).
5. Subject to any statutory restriction—as, for example, when a registrable interest
is not registered.
6. As (possibly) proprietary estoppel.
7. And, as from the coming into force of the Merchant Shipping (Salvage and
Pollution) Act 1994, s.1(6) and Sch. 2 in relation to salvage claims under the Salvage
Convention 1989 any property "not permanently and intentionally attached to the
shoreline" (Art. 1(c)). See Merchant Shipping Act 1995, s.224, Sch. 11.
8. The Charger [1966] 1 Lloyd’s Rep. 670; The Blitz [1992] 2 Lloyd’s Rep. 441.
As to the question of whether the priority is assertable against a fund resulting from the
sale, see The Queen of the South [1968] P. 449; The Freightline One [1986] 1 Lloyd’s
Rep. 266 and infra. But see The Sea Spray [1907] P. 133 which considered priority.
9. Whether a due payment is an expense of the Marshal or a claimant is liable is a
matter of construction of responsibility. So wharfage charges will only form part of the
expenses if they are increased directly as part of the Marshal’s duties arising out of
custody of the ship—see The Nagasaki Spirit (Singapore H.C.) [1994] LMLN 386 and
authorities there considered. Costs of discharging cargo are not part of the Marshal’s
expenses and have to be borne by the cargo owner —The Jogoo [1981] 1 Lloyd’s Rep.
513. Classification fees are recoverable from the proceeds of sale if the ship is sold as
a classified ship and benefit obtained thereby ( The Honshu Gloria [1986] 2 Lloyd’s
Rep. 63). See also The Atlantis Two, Federal Court, Canada (1998) LMLN 495.
10. See The Falcon [1977] 2 Lloyd’s Rep. 243; The World Star [1987] 1 Lloyd’s
Rep. 452; The Rubi Sea [1992] 1 Lloyd’s Rep. 634. As to the ambit of such costs see
Chapter 15. The arrester’s right is not dependent on the priority ranking of the arrester’s
claim (The Immacolate Concezione (1883) 9 P.D. 37). See generally The Conet [1965]
1 Lloyd’s Rep. 195; The Zigurds [1932] P. 113; The Leoborg (No. 2) [1964] 1 Lloyd’s
Rep. 380; The Ocean Glory [2002] 1 Lloyd’s Rep. 679 (stressing priority dependent on
expenditure being for the general benefit of all claimants and preservation of the fund as
a whole) and Chapter 15.
11. Such as the availability or not of an alternative remedy (see The Ruta [2000] 1
Lloyd’s Rep. 359; The Linda Flor (1857) Swab. 309; The Elin (1882) 8 P.D. 39).
"Marshalling", or arranging of funds to the benefit of all has been applied in Admiralty.
See The Constancia (1846) 2 W. Rob. 460. As to marshalling, see infra fn. 58.
12. See The Ruta (fn. 11); The Mons [1932] P. 109; The Leoborg (No. 2) [1964] 1
Lloyd’s Rep. 380; The Ocean Glory (fn. 10). Agreement as to priority will remove a
priority issue (see e.g. The Zigurds [1932] P. 113, where for some unreported reason a
demurrage claim was given high priority). For Canadian authorities accepting equitable
considerations as relevant to priority see e.g. The Galaxias [1989] IEC 386; The Hull
No. 1 and Hull No. 2 [1991] LMLN 310; The Alexandros G Tsavlivis [1993] LMLN
369.
13. E.g. (re personal liability) a master’s wages claim may be subordinated to a
claim for goods supplied where the master takes on personal liability for the latter ( The
Jenny Lind (1872) L.R. 3 A. & E. 529; The Eva [1921] P. 454); e.g. (as to conduct) a
mortgagee allowing necessaries to be supplied on credit of an insolvent shipowner (The
Pickaninny [1960] 1 Lloyd’s Rep. 544).
14. However, bail or a guarantee lodged in lieu of arrest is available only to the
claimant—and provides no fund available in rem.
15. Equitable interests (and beneficial title) are specifically recognised by the
Merchant Shipping Act 1995 (see infra—Registration) and the Supreme Court Act
1981. As to the relevance of beneficial ownership to the availability of an action in rem
see Chapter 10.
16. Compare Borden (UK) Ltd v. Scottish Timber Products Ltd [1981] Ch. 25; Re
Bond Worth Ltd [1980] Ch. 228; Romalpa Case [1976] 1 All E.R. 552. It is a question
of construction whether any proprietary interest is transferred to the proceeds of sale.
Hendy Lennox Ltd v. Puttick Ltd [1984] 2 All E.R. 152. See generally McCormack,
Reservation of Title, Sweet & Maxwell, 1995.
17. See e.g. Re Bond Worth Ltd [1980] Ch. 228; Clough Mill Ltd v. Martin
[1984] 1 All E.R. 721.
18. See Re Wait [1927] 1 Ch. 606 per Atkin L.J.; The Aliakmon [1978] 2 Lloyd’s
Rep. 499 (H.L.) per Lord Brandon. As regards ships this reasoning may be affected by
the procedure for the sale of a ship. See infra. The rules of the 1979 Act as to the
passing of property are amended by the Sale of Goods (Amendment) Act 1995 in
respect of goods bought as part of a bulk stock —because of the nature of the sale it is
difficult in these instances to conceive of any equitable title prior to the passing of the
legal title.
19. See fn 38.
20. The 1995 Act repealed and re-enacted (as from 1 January 1996) the Merchant
Shipping (Registration etc.) Act 1993. Other specific registration requirements include
the provision of the Companies Act 1985 providing for the registration of shares. An
unregistered transfer for consideration will make the transferee beneficial owner and an
unregistered gift of shares may do so (see e.g. Re Rose [1952] Ch. 499). A transferee of
shares for consideration will be bound by a beneficial unregistered interest only if he
receives notice of it prior to the time at which he is entitled to registration. As to the
question generally and the method of protection open to the beneficial owner, see
Gower and Davies, Principles of Modern Company Law , 7th edn, 2003, at pp. 692–
694. Other registration provisions apply to patents, designs and trademarks.
21. The Bills of Sale Act 1882 provides a registration framework for documents
creating security interests (see infra). As to both statutes, see generally Crossley Vaines
on Personal Property (5th edn) (1973) Chapter 33; Bridge, Personal Property Law
(2nd edn, 1996), at pp. 156–160.
22. See Vaines op. cit., at p. 453.
23. Bills of Sale Act 1878, ss.8 and 10.
24. Merchant Shipping (Registration of Ships) Regulations 1993 (SI 1993/3138)
amended by 1994/541, 1998/19 15, 2976, 1999/3206 remaining in force as subordinate
legislation after repeal and re-enactment (see Interpretation Act 1968, s.17(2)(b)). As to
statutory rights of detention see infra. The regulations do not apply to government ships
exempt from the Merchant Shipping Acts but registrable in accordance with Orders in
Council made under Merchant Shipping Act, s.308 (or legislation repealed and re -
enacted by the provision) as e.g. SI 1911/338. The provision is applied by s.309 to
ships demise chartered to the government.
25. “ Small ships” must be less than 24 metres in length other than fishing or
submersible vessels (regs 1, 88). The fishing vessels register is divided according to
whether the provisions relating to transfer by bill of sale and registered mortgage apply
(reg. 3). The difference appears to lie in the evidence required for registration. As to
registered mortgages see infra.
26. See regs 7–13. As to Interest Grouping s ee SI 1989/638. For further
connections required for and dispensation regarding fishing vessels see regs 14, 15.
Save for specified exemptions a registrable fishing vessel or one wholly owned by
qualified persons not registered under the 1993 Act or abroad and fishing for profit is
liable to forfeiture (1995) Act, s.15(1). As to excluded fishing vessels see reg. 17.
27. 1995 Act, s.17(7).
28. Regs. 3, 91.
29. 1995 Act, Sch. 1, para. 1(1).
30. 1995 Act, Sch. 1, paras 2 –13.
31. Ibid., para. 1(2).
32. Ibid., Sch. 1, paras 1(2), 7(2).
33. See regs 3, 64–70 the provisional registration may be for three months or until
the ship’s arrival in the UK.
34. Reg. 5.
35. Reg. 2.
36. Ibid., para. 1(2), reg. 6; Behnke v. Bede Shipping Co. [1927] 1 K.B. 649. A
purchaser seeking specific performance would have to show that damages were not an
adequate remedy. See The Stena Nautica (No. 2) [1982] 2 Lloyd’s Rep. 336.
37. See definition of "beneficial owner" in reg. 1.
38. See The Permina Samudra XIV [1978] 1 Lloyd’s Rep. 315; The Despina
Pontikos [1975] E.A.R. 38.
39. 1995 Act, Sch. 1, para. 2(1)—the provisions do not apply to small ships or
exempted fishing vessels, see infra. The requirement of bill of sale applies only to
registered ships. See Union Bank of London v. Lenanton (1878) 3 C.P.D. 243. The sale
of a ship not within this provision is, therefore, outside this Act and the Bills of Sale
Act 1878. See Gapp v. Bond (1887) 19 Q.B.D. 200.
40. Ibid., para. 2(2)–(4)—including the retention of a British connection. There are
provisions for registration on transmission of title other than by transfer and sale by a
court or forfeiture if transmission would result in loss of a British connection (paras 3 –
5).
41. See e.g. Stapleton v. Hayman (1864) 2 H. & C. 918; The Two Ellens (1871)
L.R. 3 A. & E. 345.
42. See e.g. The Ocean Enterprise [1997] 1 Lloyd’s Rep. 449; Brond v.
Broomhall [1906] 1 K.B. 271; The Bineta [1966] 2 Lloyd’s Rep. 419.
43. SI 1993/3188, regs 3, 91.
44. The title of a bona fide purchaser who has registered cannot be attacked on the
grounds of the fraud practised by his vendor. The Horlock (1877) 2 P.D. 243.
45. See Act for registering of British vessels 1825 (6 Geo. IV, c. 110) the
provisions of which were repealed in 1833 (3 and 4 Wm. IV, c. 54) and led to the
Merchant Shipping Act 1854 which in turn led to the Merchant Shipping Act 1894 and
now through the Merchant Shipping (Registration etc.) Act 1993 to the Merchant
Shipping Act 1995, Part II.
46.[1992] 2 Lloyd’s Rep. 445.
47.[1997] 1 Lloyd’s Rep. 449.
48.See e.g. Sale of Goods Act 1979, s.21, but see Moorgate Mercantile Co. Ltd
v. Twitchings [1977] A.C. 870.
49.Factors Act 1889, s.2.
50.Sale of Goods Act 1979, ss.23–25; see also the Factors Act 1889, ss.8 and 9.
For an application of the principles of transfer of a ship by a seller with a voidable title,
see The Ocean Enterprise [1997] 1 Lloyd’s Rep. 449.
51. Port Line Ltd v. Ben Line Steamers Ltd [1958] 2 Q.B. 146. Cf. The Celtic
King [1894] P. 175.
52.See e.g. The Oakworth [1975] 1 Lloyd’s Rep. 586. See also Chapter 14.
53.See e.g. The Fanchon (1880) 5 P.D. 173. Compare Law Guarantee and Trust
Soc. v. Russian Bank for Foreign Trade [1905] 1 K.B. 815.
54.See The Heather Bell [1901] P. 143; The Blanche (1887) 6 Asp. M.L.C. 272.
55.Section 17(7).
56. The Winkfield [1902] P. 42 but cannot recover damages from a defendant if the
bailor has already done so, the bailor having to account to the bailee for such dam ages
as reflected the bailee’s interest (O’Sullivan v. Williams [1992] 3 All E.R. 385). See
generally Bridge, op. cit. at pp. 52–53.
57.See the 1995 Act, Sch. 1, para. 10. Possession is the root of the possessory
lien.
58.Through "marshalling" a creditor may be directed to enforce his right against
one of two funds available if by so doing another creditor may be paid. Priorities are
not affected. See generally Snell, Principles of Equity (3 1st edn).
59.See The Annangel Glory [1988] 1 Lloyd’s Rep. 45 and Chapter 22.
60.Bills of Sale Act 1878, s.4; 1890, s.1.
61.This does not cover a document creating a general charge on all future goods
(Slavenburg Case [1980] 1 All E.R. 955—see infra).
62.Act of 1882, ss.8 and 9.
63.Act of 1882, ss.4 and 5.
64.Section 395(1).
65.Such requirement is in addition to the registration provisions of the Merchant
Shipping Act 1995 (as to which, see infra). Where a company acquires an asset subje ct
to a charge it is under an obligation to register but there is no consequence of invalidity
if it fails to do so (s.97). The charge is valid on particulars being delivered to the
Registrar (Slavenburg Case [1980] 1 All E.R. 955). The obligations appear to extend to
English and foreign assets of English companies but such scope may be open to a choice
of law argument. As to overseas companies, see infra.
66.Section 3 95(2).
67.[1985] 2 Lloyd’s Rep. 372.
68. [1988] 1 Lloyd’s Rep. 45. See further Chapter 22.
69. A pledge is not within the provision ( Wrightson v. Macarthur and
Hutchinsons Ltd [1921] 2 K.B. 807).
70. See e.g. Capital Finance Co. Ltd v. Stokes [1969] Ch. 261; London and
Chesham v. Lapaglene [1971] Ch. 499.
71. Brunton v. Electrical Engineering Corporation [1892] 1 Ch. 434.
72. Re Overseas Aviation Engineering (GB) Ltd [1963] Ch. 24.
73. Clough Mill Ltd v. Martin [1984] 3 All E.R. 982 and see supra.
74. [1980] 1 All E.R. 955.
75. There is a separate register for companies registered in Scotland. As to
unregistered companies see Companies Act 1989, s.106 (not yet in force). As to
overseas companies see infra.
76. A charge created by a company or on property acquired by a company
(s.398(1)). The date for assessment of registrability is the date of creation or acquisition
(s.396(3))—as to that date see s.414.
77. Section 399(1). The company has a duty to deliver the particulars but they may
be delivered by a person other than the c ompany (s.398). The charge is void to the
extent that particulars delivered do not disclose rights which should be disclosed
(s.402) and against an administrator, liquidator or purchaser for value if a memorandum
is given wrongly recording the ending of a charge (s.403). There are qualifying
provisions in respect of late delivery, delivery of further particulars (ss.400, 401).
78. Section 407(1)—even if the sum secured is also subject to other security
(ibid.).
79. Section 3 95(2). Regulations may make fu rther provision (s.413).
80. Sections 395(2)(3), 703A.
81. See ss.92, 106 of the 1989 Act.
82. Section 105 of the 1989 Act, Sch. 15 (inserting provisions into Part XXIII of
the Companies Act 1985).
83. Thereby reversing Slavenburg’s case in the holding that the provision applied
to any overseas company having established a place of business in this country.
84. A ship is situated in Great Britain only if registered there (s.703L). Future
property is situated there unless it cannot af ter coming into existence or being acquired
be situated there (s.703L(2)).
85. Section 396(1).
86. "Goods" means tangible movable property and a charge is not excluded
because the chargee may take possession on some event or default (s.396(2)(b)(c)).
87. Section 3 96(2).
88. Section 396(2)(9)—thereby reversing the effect of The Ugland Trailer (fn. 67)
and The Annangel Glory (fn. 68).
89. Section 404.
90. Section 405.
91. Section 406. Prior incumbrances include any to the extent that the charge is
void against them (s.406(3)).
92. Section 410. Such a provision will require notification of provision for
automatic crystallisation (see Chapter 22). Particulars may also be required to be
delivered of any "negative pledge" —a term in a floating charge pro hibiting the
company from creating a security interest to take priority to the charge (s.415(2)(a)).
93. See Merchant Shipping (Registration of Ships) Regulations 1993 (as amended
—see fn. 24) regs 3 (fishing vessels), 91 (small ships).
94. 1995 Act, s.16(1), Sch. 1, paras 1, 7.
95. See Black v. Williams [1895] 1 Ch. 408; Burgis v. Constantine [1908] 2 K.B.
484. In The Shizelle it was said that this followed from the statutory power of
disposition subject only to registered interests —but this is not necessarily so as
between unregistered interests (see supra). In The Halcyon Isle [1981] A.C. 221 Lord
Diplock stated somewhat cryptically that all mortgages other than British registered
took effect according to their dates of creation.
96. [1992] 2 Lloyd’s Rep. 445.
97. Which, it may be argued, is contrary in principle to Lord Diplock’s view in
The Halcyon Isle that as between each other non -registered mortgages take effect
according to their date of creation.
98. 1995 Act, Sch. 1, para. 8. Notice is therefore irrelevant. An intending mortgage
may obtain priority by notification of a priority notice (Sch. 2, para. 8(2); Merchant
Shipping (Registration of Ships) Regulations 1993 (as amended —see fn. 24) reg. 59).
99. See Black v. Williams [1895] 1 Ch. 408.
100. See Lombard North Central Ltd v. Lord Advocate 1983 SLT 361 (lack of
good faith leading to loss of priority) and the limitation in The Ocean Enterprise [1997]
1 Lloyd’s Rep. 446 of the principle of rectification of the register to re -enter as owner
the vendor in a sale where the buyer was fraudulent to cases where there has been no
transfer of title to a bona fide purchaser without notice.
101. The Blitz [1992] 2 Lloyd’s Rep. 441. It is not clear whether the purchaser
registered the title—but this would appear irrelevant to the principle of giving priority
to the statutory sale powers over those of the registered owner.
102. 1995 Act, Sch. 1, para. 1(1).
103. I.e. the general principles of equitable interests are maintained (1995 Act,
Sch. 1, para. 1(2)).
104. See e.g. Burgis v. Constantine [1908] 2 K.B. 484.
106. [1992] 1 NZLR 655.
107. Myburgh [1992] LMCLQ 155.
108. It is resolved by statutory application of the law of registration (Ship
Registration Act 1992, s.70). For comment on the wider implications see Myburgh
[1993] LMCLQ 444.
109. Section 17(7) re-enacting the Merchant Shipping (Registration etc.) Act 1993,
s.7(7).
110. Respondentia—(a security interest in cargo only) is equivalent to bottomry
where a ship is the subject of security. As with bottomry it is subject to its own rules.
See Chapter 2.
111. This assumes the validity of the mortgage which may require registration
under the Bills of Sale Act 1882. See supra.
112. But naturally can be pursued in the appropriate Division of the High Court
subject to jurisdictional prerequisites.
113. See Sewell v. Burdick (1884) 10 App. Cas. 74. As to the separation of the
rights and liabilities of bills of lading holders from the passing of property see the
Carriage of Goods by Sea Act 1992.
114. In modern terminology freight may not include time charterparty hire (see
Chapter 22). Assignment for consideration of a "future" chose in action (i.e. a right to
receive moneys when due) may create an interest in the chose when the money is due or
a "charge" on the entering into the contract to be implemented when the money is due
(see The Annangel Glory [1988] 1 Lloyd's Rep. 45). A bare cause of action as distinct
from a "property interest" cannot be assigned. As to the distinction, see Trendtex
Trading Corpn v. Crédit Suisse [1982] A.C. 679; Brownton Ltd v. Edward Moore
Inbucon Ltd [1985] 3 All E.R. 499 (C.A.).
115. Law of Property Act 1925, s.136(1).
116. See e.g. Gardner v. Lachlan (1838) 4 Myl. & Cr. 129.
117. The Zigurds [1934] A.C. 209; The Annangel Glory [1988] 1 Lloyd's Rep. 45
(priority of "equitable liens"). This applies the central feature of a priority rule
applicable to the mortgage of equitable interests under trusts known as the rule in
Dearie v. Hall (1823) 3 Russ. 1.
118. The Zigurds (supra). As to enforcement procedure see Three Rivers D.C. v.
Bank of England [1995] 4 All E.R. 312.
119. Supreme Court Act 1981, s.20(2)(r). Only bottomry is expressly mentioned.
See Chapter 2.
120. See the Law of Property Act 1925, s.136(1).
121. Section 3(4). See further Chapters 21, 25.
122. The Cretan Harmony [1978] 3 All E.R. 164; The Angel Bell [1980] 1
Lloyd’s Rep. 632; Mercedes Benz AG v. Leiduck [1995] Lloyd’s Rep. 417 (P.C.); but
note that in Z Ltd v. A [1982] Q.B. 558 Lord Denning M.R. was maintaining his view
that the issue of the injunction was a kind of attachment.
123. I.e. by issue of debentures. In theory it appears that they may be created by
individuals but they would be difficult to register as required under the Bills of Sale
Acts.
124. See supra. As to preferential creditors taking priority over floating charges on
company insolvency see Gower and Davies op. cit.
125. As to "negative pledge" see supra. As to priority see Brunton v. Electrical
Engineering Corpn [1892] 1 Ch. 434 (a legal interest —a possessory lien) and
generally Gower, op. cit. at pp. 82 1–823.
127. See Sewell v. Burdick (1884) 10 App. Cas. 74.
128. As to the effect of the Carriage of Goods by Sea Act 1992 on the liabilities as
if a party to the contract see Reynolds [1993] LMCLQ 436 at p. 443.
129. Factors Act 1889, ss.2, 8 and 9; the Sale of Goods Act 1979, ss.24 and 25
(1893, s.25). A pledged bill of lading may be handed back to the borrower to allow him
to sell the goods, but probably in exchange for a trust receipt undertaking to hold the
proceeds in trust for the lender. The borrower will then be in possession as the lender’s
agent.
130. See e.g. the unpaid seller’s lien under the Sale of Goods Act 197 9 (s.41)
(infra); the broker’s lien on the policy under the Marine Insurance Act 1906 (s.53(2)).
Compare the charge which a solicitor may claim under the Solicitors Act 1974, s.73.
131. A solicitor has (i) a common law general possessory lien for costs in relation
to clients’ property; and (ii) an equitable lien on any fund recovered by him. The
statutory "lien" reflects a claim to the "equitable interference of a court to have a
judgment held as security for the solicitor’s debt" (see Fairfold Properties Ltd v.
Exmouth Dock Co. Ltd (No. 2) [1992] 4 All E.R. 289). As to jurisdiction to which the
exercise of a solicitor’s lien, see Ismail v. Richards Butler [1996] T.L.R. 107.
132. "Property" includes property of any kind —including a consent order for the
assessment of damage (ibid.) and a costs order where the costs had not been taxed
(Fairfold Properties Case fn. 131).
133. Solicitors Act 1974, s.73 (formerly in the Solicitors Act 1860, s.28; 1932,
s.69; 1957, s.72). Taking security inconsistent with the lien would waive the lien —but
not simply taking alternative security Clifford Harris v. Solland [2005] EWHC 141.
134. See The Paris [1896] P. 77.
135. The basis of the client’s claim to the property is irrelevant ( The Jeff Davis
(1867) L.R. 2 A. & E. 1; The Heinrich (1872) L.R. 3 A. & E. 505; The Paris [1896] P.
77; The Marie Gartz (No. 2) [1920] P. 460).
136. See Williams v. Allsup (1861) 10 C.B. (N.S). 417; The Scio (1967) L.R. 1 A.
& E. 353. Where there is authority, an agreement between owner and mortgagee that the
owner would not create a lien would not affect the lien holder unless he had notice of
the agreement (see e.g. Bowmaker Ltd v. Wycombe Motors Ltd [1946] K.B. 505).
137. It is questionable whether, apart from common car riers bound to provide
services, a lien imposed by law in a situation not authorised by the owner (e.g. repairs
of a ship wrongfully taken) would be good against the owner (see Electric Supply
Stores v. Gaywood (1909) 100 L.T. 855). But it is arguable that policy should give
priority to the repairer.
138. It will take priority over an earlier floating charge and, if acquired without
notice of any "negative pledge" not to create any later charges having priority, over any
interest created by that pledge (see supra).
139. Such a lien implied by law does not require such registration but if conferred
by contract will do so if it amounts to a "charge" —it is arguable that it does not amount
to a charge if it cannot be enforced by sale (see Chapter 17).
140. S e e s . 4 8 .
141. Ibid., s.47.
142. Booth Steamship Co. Ltd v. Cargo Fleet Iron Ltd [1916] 2 K.B. 570.
144. The Blitz [1992] 2 Lloyd’s Rep. 441.
145. See e.g. Albermarle Supply Co. Ltd v. Hind & Co. [1928] 1 K.B.
307—but on numerous occasions courts have refused to allow ships to be moved without
affecting the possessory lien (see e.g. The Ally [1952] 2 Lloyd’s Rep. 427 following The
Gaupen (1925) 22 Ll. L. Rep. 57). But the criteria is control of possession —and
within that control use may be permitted (see The Tergeste [1903] P. 26).
146. See Z Ltd v. A [1982] Q.B. 558.
147. See The Cretan Harmony [1978] 1 Lloyd’s Rep. 425; The Angel Bell
[1980] 1 Lloyd’s Rep. 632; K/S A/S Admiral Shipping v. Portlink Ferries Ltd
[1984] 2 Lloyd’s Rep. 166.
148. Ibid. See Mercedes Benz AG v. Leiduck [1995] 2 Lloyd’s Rep. 417 and
Chapter 16.
151. As to distinctions as to attracting statutory liens between claims
enforceable by an action in rem, see infra. Presumably charges are in the same priority
category as mortgages. See infra.
152. Insofar as mortgage and statutory liens may exist in cargo and freight
the priority of maritime liens would seem to apply as it applies to ships.
153. A contention that a subsequent possessory lien could be given priority on
the basis of preservation of the res was rejected in The Russland [1924] P. 55.
154. See The Tergeste [1903] P. 26; The Gustaf (1862) Lush. 506; The
Immacolata Concezione (1883) 9 P.D. 37. As to the time of creation of the possessory
lien, see The Tergeste (supra) and Chapter 20.
155. See further Chapter 18—Termination of Maritime Liens.
156. The Harmonie (1841) 1 W. Rob. 178; The Nordstjernen (1857) Swab. 260.
157. So there is no need to intervene in the action of others. Each claimant
should make its own claim. See The Athenic (1932) 42 Ll. L. Rep. 7.
158. As to the definition and scope, see Chapter 19.
159. As, for example, the use of an equitable charge instead of a
registered mortgage.
160. The Two Ellens (1871) L.R. 3 A. & E. 345; see also (e.g.) The Leoborg (No.
2) [1964] 1 Lloyd’s Rep. 380. In The Halcyon Skies [1977] Q.B. 14 and The Halcyon
Isle [1981] A.C. 221 the critical issue was whether the claimant opposed to the
mortgagee had a maritime or statutory lien. If it was the former, it took priority and if the
latter the mortgage had priority. As to cargo and freight, see fn. 152.
161. In The Halcyon Isle (supra) the mortgage remained unregistered for
over 12 months and the repairs which later led to a statutory lien took place within that
period— although the writ was issued after registration.
162. See s.20(7).
163. (1922) 12 Ll. L. Rep. 9, at p. 12.
164. See The Shizelle [1992] 2 Lloyd’s Rep. 445 and supra.
165. A claim which, if brought against a particular ship, would be a maritime lien
must be treated as a statutory lien if brought against a sister ship (see the Supreme Court
Act 1981, s.21 and The Leoborg (No. 2) [1964] 1 Lloyd’s Rep. 380).
166. [2000] 1 Lloyd’s Rep. 359.
167. Maritime Liens (op. cit.) at p. 418.
168. So e.g. The Ruta consideration was given to (a), (b) and (c).
169. See e.g. The Mons [1932] P. 109; The Lyrma (No. 2) [1978] 2 Lloyd’s Rep.
30; The Veritas [1901] P. 304; The Inna [1938] P. 148. The principle of inverse order
of attachment must, it seems, be viewed in the context of preservation and not simply as
governing of itself. (See The Lyrma (No. 2) [1978] 2 Lloyd’s Rep. 30, at p. 34.)
170. The Lyrma (No. 2) [1978] 2 Lloyd’s Rep. 30 —but the later event must
preserve the lien—a characteristic held in this case not to apply in the case of wages
earned after salvage. See also The Gustaf (1862) Lush. 506.
171. There seems little room for "first in time", a basic priority principle outside
actions in rem.
172. So they were given priority over bottomry bonds (see e.g. The Hope (1873) 1
Asp. M.L.C. 563) which could also rest on the “joint adventure” approach —but not
(e.g.) over salvage (see The Lyrma (No. 2) [1978] 2 Lloyd’s Rep. 30).
173. See e.g. The Inna [1938] P. 148.
174. See e.g. The Veritas [1901] P. 304.
175. See The Veritas [1901] P. 304. For a rejection of the contention that a salvage
lien was not ex contractu, see p. 314.
176. In The Ruta [2000] 1 Lloyd’s Rep. 359 considered the decisive factor in
giving preference to a wages lien over a damage lien. See for a reverse conclusion on
the same basis e.g. The Linda Flor (1857) Swab. 309; The Chimera (1852) 11 L.J. 113;
The Elin (1882) 8 P.D. 39 (cited in The Ruta).
177. See e.g. The Daring (1868) L.R. 2 A. & E. 260; The Duna (1861) 5 L.T. 217.
Priority of the decree was at one time said to be a factor pointing to priority but the
modern decree reserves priorities and the order is now of no priority relevance. Delay
may affect priority. (See generally The Stream Fisher [1927] P. 73.)
178. See The Elin (1882) 8 P.D. 39; The Inna [1938] P. 148.
179. See The Aline (1839) 1 W. Ro. 111.
180. See The Elin (1882) 8 P.D. 39; The Linda Flor (1857) Swab. 309; The
Chimera (1852) 11 L.T. 113.
181. Distinguishing earlier cases where the owner was not bankrupt.
182. They had joined the ship after the collision.
183. F n . 1 7 6 .
184. The Stream Fisher [1927] P. 73. This may be held even where other
(inadequate) security has been taken (see The Ruta (fn. 176)).
185. The Lyrma (No. 2) [1978] 2 Lloyd’s Rep. 30, at p. 33 (Brandon J.).
186. See supra.
187. As to the general requirement of preservation, see The Lyrma (No. 2) [1978]
2 Lloyd’s Rep. 30, at p. 34 (holding later wages to be subject to earlier salvage) and
doubting The Hope (1873) 1 Asp. M.L.C. 563 in applying the inverse order of
attachment mechanically to a later wage and earlier bottomry claim.
188. See e.g. The Lyrma (No. 2) [1978] 2 Lloyd’s Rep. 30 at p. 34. Where there is
a salvage service with a common object the claims under it rank pari passu. (See The
Russland [1924] P. 55, at p. 60.) The priority given to life salvage by the Merchant
Shipping Act 1894, s.544, was remove d by the Merchant Shipping (Salvage and
Pollution) Act 1944. As to life salvage see the Salvage Convention, Art. 16, and
Merchant Shipping Act 1995, Sch. 11, Part II, para. 5. As to the salvage lien see
Chapter 18.
189. See damage lien (supra).
190. The Lyrma (No. 2) [1978] 2 Lloyd’s Rep. 30.
191. See The Ruta (fn. 176) and discussion under damage lien.
192. See The William Safford (1860) Lush. 69; The Union (1860) Lush. 128; The
Madonna D. Idra (1811) 1 Dods. 37; The Sydney Cove (1815) 2 Dods. 11. In The
Hope (1873) 1 Asp. M.L.C. 563, where wages were earned both prior to and after a
bottomry bond, the rule of inverse order of attachment seems to have been mechanically
applied—and later criticised (see fn. 187). As to a previous voyage, see The Mary Ann
(1845) 9 Jur. 94.
193. See The Salacia (1862) Lush. 545; The Jenny Lind (1872) L.R. 3 A. & E.
529; The Edward Oliver (1867) L.R. 1 A. & E. 379.
194. See The Mons [1932] P. 109.
195. [1984] 2 Lloyd’s Rep. 255. For authorities for the earlier proposition, see
The Salacia (1862) Lush. 545; The Athena (1921) 8 Ll.L.Rep. 482; The Mons [1932] P.
109.
196. I.e. where the later wage earnings can be said to preserve the res. See supra.
197. See The Mons [1932] P. 109. But will it rank pari passu with seamen’s
wages? (See fn. 195.)
198. The Mons [1932] P. 109, at p. 111.
199. Respondentia appears to follow the rules of bottomry.
200. A wages claim from a previous voyage may be subordinated to a bond. See
The Mary Ann (1845) 9 Jur. 94; The Hope (1873) 1 Asp. M.L.C. 563.
201. See The Union (1860) Lush. 128.
202. The William Safford (1860) Lush. 69; The Hope (1873) 1 Asp. M.L.C. 563
(but in The Lyrma (No. 2) [1978] 2 Lloyd’s Rep. 30, Brandon J. doubted the principle
except insofar as the wage earning preserved the res). A master who binds himself
personally on the bond will lose his priority over it —The Salacia (1862) Lush. 545.
203. The Aline (1839) 1 W. Rob. 111.
204. See The Selina (1842) 2 Not. Cas. 18.
205. Cargo ex Galam (1863) 2 Moo. P.C., N.S. 216; The Priscilla (1859) Lush. 1.
Bonds forming part of the same dealing rank pari passu (see The Exeter (1799) 1 C.
Rob. 173).
206. [1992] 2 Lloyd’s Rep. 445.
207. It may be argued that this illustrates a gap in the Admiralty framework —for it
means that different priority principles may apply to competing interests (e.g. maritime
lien and mortgage in personam principles). See infra.
208. As to the applicability of this clause to actions "in rem" see Chapter 2.
209. [1932] P. 113. See also The Eskbridge [1931] P. 51 apparently recognising a
claim in rem against cargo for freight. The provisions on which the admission was
based are now repealed (as to the effect of this, see Chapter 2).
210. See [1933] P. 87 (C.A.); [1934] A.C. 209 (H.L.).
211. For an application of which see The Attika Hope [1988] 1 Lloyd’s Rep. 439.
212. Claims to possession would fall in this category only insofar as it was alleged
that the possession was the root of ownership (as through limitation of actions).
213. See the Merchant Shipping Act 1995 and Merchant Shipping (Registration of
Ships) Regulations 1993 (SI 1993/3 138) (as amended) —as to which see supra.
214. See (e.g.) The Leoborg (No. 2) [1964] 1 Lloyd’s Rep. 380 (wages —as
claimed against sister ships treated as statutory lien —and goods supplied); The
Charger [1966] 3 All E.R. 117 (dock dues, goods supplied).
215. The Rene (1922) 12 Ll. L. Rep. 202; The Africano [1894] P. 141; The
Zigurds [1932] P. 113; The Stream Fisher [1927] P. 73.
216. See e.g. The Acrux [1962] 1 Lloyd’s Rep. 405; The Igor [1956] 2 Lloyd’s
Rep. 271; The Cerro Colorado [1993] 1 Lloyd’s Rep. 58.
218. As statutory registration provisions (as to which see supra) and statutory
rights of detention and sale (as to which see infra).
219. [1992] 2 Lloyd’s Rep. 445. See supra.
220. As e.g. a seller or buyer in possession under the Sale of Goods Act 1979,
ss.24, 25.
221. As (e.g.) an unpaid seller’s lien under the Sale of Goods Act 1979 ( see fn.
140 supra).
222. The Charger [1966] 3 All E.R. 117; The Blitz [1992] 2 Lloyd’s Rep. 441 (not
subject to registered mortgage) see supra. It seems as if a port authority may insist on its
power of sale and its enforceability of its right in this way ( ibid.).
223. The Charger [1966] 3 All E.R. 117. Standing by may lead to a holding that
the statutory rights have been waived. See The Acrux [1962] 1 Lloyd’s Rep. 405. But it
would not be standing by not to exercise the statutory right so as to allow judicial sale
of the ship (The Hurst, 1999 LMCN 507, Singapore C.A.).
224. The Sierra Nevada (1932) 42 Ll. L. Rep. 309.
225. [1968] P. 449. See also The Spermina (1923) 17 Ll. L. Rep. 52 at p. 53.
226. [1986] 1 Lloyd’s Rep. 266.
227. See supra.
228. The Livietta (1883) 8 P.D. 209. It takes priority over the client’s lien
whatever type of lien it is. (See The Heinrich (1872) L.R. 3 A. & E. 505.)
229. The Heinrich (1872) L.R. 3 A. & E. 505.
230. Merchant Shipping Act 1995, Sch. 7, Part II, para. 9. A like provision
introduced in legislation now repealed overruled a decision of the House of Lords ( The
Countess [1923] A.C. 345) which gave priority to a claimant with a possessory lien. As
to limitation of liability generally see Chapter 24.
232. [1921] P. 351. See also The Ile de Ceylan [1922] P. 256.
233. [1981] 2 Lloyd’s Rep. 534.
234. As, for example, statutory rights of detention of public authorities (as to which
see supra).
235. [2000] 1 Lloyd’s Rep. 359 (as to which see supra).
Part V
Remedies
Chapter 24
Limitation of Liability 1. The General Principle

24.1 Limitation of liability is an accepted concept generally in the use of corporate
personality to limit individual liability. In shipping it has long been accepted that in
addition a shipowner or operator may directly limit liability for compensation for
damage, loss or injury caused through his acts. 1 In English law such limitation now
applies to all claims arising from one incident or occurrence ("global" limitation) save
where because of the risk of claims for huge compensation (for example, oil pollution
or nuclear damage) a special scheme has been created. Within the global regime there is
a second level of limitation in respect of carriage of goods and passengers based on an
amount per package or weight of cargo or number of passengers.
24.2 The justification for all types of limitation is the need to encourage investment
in trade and insurability of risk. The balancing factor for claimants for the limit on
compensation is the lessening of the possibility of non -recovery. To an extent this is
achieved through insurance itself, and the spreading of the cost of compensation.
However, unless a compensation fund made up from contributions of interested parties
is set up the basic question of "who pays?" remains. The setting up of such a fund
depends on the ability to identify the interested parties and international agreement as to
its criteria. Further, it cannot entirely remove the need to establish that a particular
claim falls within the scheme (i.e. that damage or loss was caused as alleged).
24.3 The ability to limit does not therefore necessarily affect the principles of
liability. Apart from oil pollution and nuclear damage claims, 2 limitation of liability
operates through a limit on compensation not linked to any principle of liability without
fault or without any regard to the conduct of the limitation claimant. The claiming of
limitation is also not exclusively linked to the provision of any security for the claim.
However, the setting up of a "limitation fund" and the claiming of global limitation may
in respect of claims within the particular regime ( see infra) relieve the person claiming
limitation from provision of further security and also channel claims against him to the
fund.
24.4 Although the limitation framework does not normally include mandatory
security for a claim, in maritime law there are compensating factors fav ouring a liability
claimant. So until other security is lodged the claimant will in most cases have or be
able to create a "lien" on the ship involved in the incident and prior to judgment be able
to arrest the ship to ensure that it is available for enforcement of the claim through the
lien.
24.5 Limitation of liability—as any defence—is only as good as the legal system
within which it operates and the recognition of the defence in any other system where a
claim may be brought. A declaration of limitation may therefore be of value only in the
state in which it is obtained. More, a limitation fund may only be effective not only
where it is recognised but where claims against other assets are excluded.
24.6 Limitation is therefore a principle ripe for international agreement. Such
agreement has been reached to a greater or lesser extent through Conventions both as
regards global limitation and in relation to particular claims. The effectiveness of such a
Convention depends not only on the number of States parties to it but the will of those
states to make the provisions mandatory in each national law. In order to do so fully
there must be a prohibition on opting out of a jurisdiction or law which does not
recognise or enforce the Convention. Limitation of liability for maritime claims 3 in
English law now largely reflects Conventions to which the United Kingdom is a party.
24.7 Insofar as English law is applied the regime is mandatory and it is probable
that in any case before an English court the English legislation would be applied. 4 But
where jurisdiction is not linked to the place of the incident (as in pollution and nuclear
damage claims) the policy underlying "global" limitation is not so strong as not to
consider that a case would be more appropriately heard in another country. 5 The Link
between Liability and Limitation Proceedings
24.8 The link between limitation and liability issues is obvious in factual inquiry
and, where relevant, attributing responsibility . However, there is no necessary
dependence if limitation is seen purely as concern with the limit on compensation
assuming that liability is established. Limitation as a defence
24.9 The view of the English courts seems to have been that where limitation may
be pleaded as a defence or counterclaim (i.e. where there is only one liability claimant)
then it would be expected that the claim be made as part of the liability proceedings.
Otherwise it may be argued that any finding in either proceedings on liabil ity including
the amount was res judicata in respect of the other proceedings. Global limitation
24.10 So far as global limitation is concerned, it has long been possible to obtain a
decree binding all claimants. Where this was sought it was once seen as r equiring as a
prerequisite an admission or a finding of liability. So a limitation decree of this kind
may be sought in a "limitation action" 6 but this may take place before or after judgment
on liability. Limitation decree may precede liability decision
24.11 That a decree may be obtained prior to liability being decided was settled
only in 1998 by the Court of Appeal in Bouygues Offshore SA v. Caspian Shipping Co. 7
The Court saw no logical objection to discretion to deciding maximum liability prior to
deciding any liability. As pointed out at first instance by Rix J. 8 it may well be
preferable to decide the limitation first if liability is obvious or the amount so small as
24.4 Although the limitation framework does not normally include mandatory
security for a claim, in maritime law there are compensating factors favouring a liability
to make the claim not worth pursuing.
24.12 There was no obstacle in the Merchant Shipping Act 1995 or the Limitation
Convention 1976 now enacted by the statute (as to which see infra). Indeed support was
to be found in the Convention provision that the act of invoking limitation is not to
constitute an admission of liability. 9 Connections between liability and limitation (i)
Findings in proceedings
24.13 In The Wladyslaw Lokietek 10 Brandon J. took the view that a right of
recovery declared in liability proceedings was not " res judicata" in respect of
limitation proceedings. Whether in English law this means that, lacking admission of
liability, the whole question of liability remains open to argument despite a finding in
liability proceedings seems unlikely. For the general proposition Brandon J. rel ied on
CA Van Eijk and Zoon-Somerville 11—a case concerned only with challenge in
limitation proceedings to the value of the ship assessed in liability proceedings. When
there are different proceedings dealing with liability and the amount recoverable, the
value of the ship would seem to be connected with the latter, and any permitted
challenge not to be seen as authority for raising issues of liability again. (ii) Powers of
“limitation” court to decide liability
24.14 While liability and limitation raise di fferent but connected issues it seems
clear that an English court has the power to decide liability in limitation proceedings.
The power is emphasised by the ability conferred by statute to enjoin claimants from
taking other proceedings. 12 In Canada, the Federal Court of Appeal has stressed that
such a power to stay should not be used to prevent a claimant establishing liability if the
shipowner does not admit it, particularly if the claimant challenges the shipowner’s
right to limit.13
24.15 It is clear that there are benefits in liability and limitation proceedings taking
place in the same court or at least in the courts of one state, and if that occurs issues of
potential inconsistency are limited to the binding effect of findings within the same
system. Where proceedings are brought in different states there is a far greater risk of
irreconcilable judgments simply because of different views of the scope of necessary
factual and legal inquiry, and where liability is not admitted of liability. In En glish law,
apart from the Brussels and Lugano Conventions, the question of whether where
permission is required it should be granted to serve a liability or limitation claim form
out of England or whether jurisdiction in one of the two types of action shou ld be
exercised is a matter of a jurisdiction agreement or forum non conveniens.14 The
interests of the parties and the weight to be given to relevant factors is discussed infra.
2. International Limitation Frameworks Global Limitation
24.16 Global limitation operates in relation to specified types of claim, the
liability for which is a matter for national law. The liability principles may be based on
other Conventions (as, for example, carriage claims) or may depend directly on national
law. In English law, save in the case of conduct entitling a liability claimant to break the
limit (see infra), liability of an owner, charterer, manager or operator of a British ship
is specifically excluded in respect of:
(a) property on board lost or damaged by reason of fire on board the ship
(b) gold, silver watches, jewels or precious stones lost or damaged by reason of
theft, robbery or other dishonest conduct and their nature in value not declared by the
owner or shipper to the owner or master in the bill of lading or in writing.
24.17 Liability for such damage or loss is likewise excluded (a) of a master or
member of the crew or servant of the owner where the damage or loss arises from
anything done or omitted by that person in that capacity and (b) any person of whom the
master, crew member or the servant and who is not himself excluded from liability
under the provision. 15
24.18 The development of an effective international limitation framework is
bedevilled as ever by the problem of the overlapping of consecutive Conventions
caused by the appreciation of the need for change or that general rules are not
appropriate for particular claims as they emerge. The most recent Convention seeking to
provide a general limitation for all claims arising from a single incident, save those
excepted, is the Convention on Limitation for Liability for Maritime Claims 1976.
Excepted claims include claims within the limitation schemes of the Convention on
Civil Liability for Oil Pollution Damage 1969 and those within limitation of liability
Conventions or national provisions relating to nuclear damage. 16 As of 31 March 2005
48 states (including the United Kingdom) are parties to the 1976 Convention. A Protocol
of 1996 came into force on 13 May 2004. As of 31 March 2005 14 States (including the
United Kingdom) were parties. 17
24.19 The 1976 Convention was intended to replace the International Convention
Relating to the Limitation of Liability of Owners of Sea Going Ships 1957 in turn
intended to replace the International Convention for the Unification of Certain Rules
Relating to the Limitation of Liability of Owners of Sea Going Ships 1924. But not all
States parties to earlier Conventions become (or at least immediately become) parties
to later Conventions. So a number of states remain parties to the 1957 Convention.
Hence the very achievement of some international agreement ten ds at least initially to
create a conflict between laws. However, as is occurring with the 1957 and 1976
Conventions, hopefully the later takes over from the earlier. Limitation for Particular
Claims in Addition to “Global” Limitation
24.20 Claims for damage to or loss of cargo or injury or death of passengers are
subject to further limitation within the global limitation. Carriage Conventions
24.21 The Conventions relating to sea carriage of goods provide for principles of
liability and impose limitation of liability on the basis of limit per package. 18 By the
Athens Convention Relating to the Carriage of Passengers and their Luggage 1974
principles of liability for the death or personal injury to passengers are established and
compensation limited to a sum per carriage. 19 These Conventions all provide that the
limitation provisions do not affect the rights and duties under any Convention relating to
limitation of liability in respect of sea going ships (i.e. global limitation). 20
24.22 Of the particular Conventions the Hague-Visby Rules concerning carriage of
goods by sea21 and the Athens Convention concerning the carriage of passengers and
luggage by sea 22 are part of English law. It may be that in combined road and sea
carriage of goods in a vehicle the applicable Convention is the CMR 1956 concerning
primarily carriage by road (also part of English law). In that case the limitation
provision of that Convention would apply. 23
24.23 The Hague-Visby Rules reflect the stage of development in an international
agreement on liability for loss of or damage to cargo carried by sea. An earlier stage is
reflected by the Hague Rules to which the United Kingdom was a party until it became a
party to the Hague-Visby Rules and a later stage by the Hamburg Rules to which the
United Kingdom is not a party. Both these Conventions, however, are in force in a
number of states. 24 Mortgages and liens Conventions
24.24 The International Conventions for the Unification of Certain Rules Relating
to Maritime Liens and Mortgages 1926, 1967 and 1993 each refer to limitation of
liability. The Convention of 1926 (Art. 7) provides simply that no sum apportioned to a
creditor may exceed the sum due under limitation of liability rules. The Convention of
1967 (Art. 14(2)) provides any party may reserve the right to apply the 1957 Limitation
Convention. Article 15 of the 1993 Convention reads that nothing in the Convention
"shall affect the application of any international convention providing for limitatio n of
liability or of national legislation giving effect thereto" .
24.25 The Mortgage and Lien Conventions are relevant to the 1976 Limitation
Convention insofar as they create or recognise liens based on claims subject to
limitation and provide for priority between them. Limitation of liability necessarily
imposes a limitation on the amount secured by a lien and the establishment of the fund in
essence provides an alternative security to that which the lien would arguably attach.
However, the provision in the 1976 Convention, Article 12(1), that subject to the
Convention priority provisions ... "the fund shall be distributed among the claimants in
proportion to their established claims against the fund" is clearly inconsistent with the
priority rules set out in the Lien and Mortgage Conventions. The overriding effect of the
1976 Convention is reflected in English law through the statutory provision that "no lien
or other right in respect of any ship or property shall affect the proportion in which . . .
the fund is distributed among several claimants". 25 None of the Mortgage and Lien
Conventions is ratified by the United Kingdom. E. C. Regulation 44/2001 and other
relevant Conventions
24.26 The European jurisdiction regimes are relevant to provisions of the
Limitation of Liability Convention concerning jurisdiction to hear limitation claims and
(dealing with more particular matters) the Collision (Civil Jurisdiction) Convention
1952 and, relevant to the release of security under the Limitation Convention, upon the
establishment of a limitation fund, are the Conventions relating to the Arrest of Sea
Going Ships 1952 and 1999. Apart from the 1999 Convention which is not yet in force
these Conventions are either reflected in or part of English law they are discuss ed
generally in the context of their primary purposes. They are considered later in this
chapter as regards jurisdiction and security in respect of limitation claims. 3.
Limitation of Liability in English Law The General Pattern Claims subject to
limitation
24.27 Save where liability itself is excluded or the appropriate Convention
qualified, claims subject to limitation are those:
(i) within the 1976 Convention relating to global limitation currently incorporated
into English law; 26
(ii)relating to oil pollution;
(iii) carriage of goods and passengers;
(iv) relating to nuclear damage;
(v) against pilots, harbour authorities and those supplying pilotage services under
the Pilotage Act 1987;
(vi) those against harbour authorities and dock owners in respect of damage to
ships and cargoes; and
(vii) when the provisions are brought into force claims under the HNS Convention
1996 in respect of damage flowing from the carriage of hazardous and noxious
substance by sea.27 Claiming limitation
24.28 Limitation claimed as against the particular liability claimant may always be
pleaded as part of the defence 28 or counterclaim. 29 Apart from jurisdictional issues
where there may be foreign liability or other limitation proceedings there is no reason
why limitation should not be the subject of an action for declaration. 30 Thirdly,
limitation of liability may be claimed through a lim itation action in respect of all loss or
damage arising from one incident or occurrence and hence against numerous potential
claimants concurrently. This type of limitation is geared to claims against categories of
persons concerned with ships (e.g. shipow ners and operators, pilots, and harbours and
docks authorities) or exceptionally with a particular type of claim (i.e. oil pollution
claims). The procedure (in a varying degree of detail or certainty) is set out in statute
and Civil Procedure Rules.
24.29 The jurisdiction of English courts in relation to limitation claims, the law
which governs them and the recognition of any foreign decree or settlement in English
law, was traditionally approached on the basis that the issue was essentially procedural
or remedial. It was therefore seen as a matter solely for English courts and English law.
A claimant entitled to a limitation decree under an English statute was not deprived of
such a decree because of foreign proceedings, foreign connection, foreign judgment or
foreign payments. At most any payment made abroad would be taken into account on the
basis on which such a claim could be made in English law. 31
24.30 This almost exclusive forum-based approach has been qualified by:
(i) Conventions on Limitation of Liability 1957 and 1976 and the attempts at
provision of a limitation fund in one state, with the focus of claims where the fund is
established.
(ii) EC Regulation 44/200 1 and Convention provisions as to jurisdiction and
recognition of judgments over claims in relation to which limitation may be claimed —in
particular the (a) Brussels and Lugano Conventions on jurisdiction between European
States, (b) Conventions concerning claims in respect of oil pollution, (c) damage
through the carriage of hazardous and noxious substances (not yet in force) and (d) rules
relating to nuclear damage.
(iii) Consideration of the connection between liability and limitation when
deciding whether to exercise jurisdiction (or possibly assessing the governing law) in
one or the other type of proceedings. Limitation proceedings creating issues of
jurisdiction
24.31 Where limitation is pleaded in a liability action there are no distinct issues
of jurisdiction, applicable law or recognition of judgments. Issues of this kind unique to
limitation arise in the context of the limitation action —the claim by the liability
defendant to limit. It is particularly this type of action that is the subject of this chapter.
It applies to claims (1) within the Merchant Shipping Act 1995, Part VI ("global
limitation") (repealing and re-enacting the Merchant Shipping Act 1979), (2) made in
oil pollution claims under the Merchant Shipping Act 1995, Part VI (repealing and re -
enacting the Merchant Shipping (Oil Pollution) Act 1971 and the Merchant Shipping Act
1974), (3) under the Pilotage Act 1987 and (4) by docks and canal owners, harbour and
conservancy authorities. Consideration is also given to (5) the structure of the HNS
Convention which is not yet in force. 1. Global Limitation
24.32 The limiting of liability in respect of all claims arising from a single
maritime incident has long been recognised by many states. Some follow the system of
removing personal liability from the shipowner with the ship and freight the target of the
claims. Others, notably the United States, allow the shipowner to avoid liability by
abandoning the ship (or what is left of it) to the claimant. The United Kingdom approach
(also that adopted in the 1976 and 1957 Limitation Conventions) was to fix an amount
per ton of the ship and create from that a fund to be distributed in proportion to the
claims.
24.33 The United Kingdom is a party to the Convention for Liability for Maritime
Claims 1976. As between the pa rties to the 1976 Convention are concerned that
Convention abrogates earlier Conventions. 32 The 1976 Convention came into force in
the United Kingdom on 1 December 1986. The Protocol of 1996 came into force on 13
May 2004 and was implemented in United King dom laws on that date. 33
24.34 The United Kingdom was a party to the 1957 Convention which was
incorporated into English law through the Merchant Shipping (Liability of Shipowners
and Others) Act 1958. Difficulties were almost invited by incorporation in t hat manner
without the direct application of the Convention text. More fundamentally the framework
of the Convention was soon seen as defective, permitting claimants to break the limits
too easily while setting compensation amounts too low. Dissatisfaction with the
Convention played its part in the creation of separate frameworks for oil pollution
claims.34 Further, the construction of the Convention provision that no other security
could be held once security was provided by limitation fund was largely def eated in
English law because of an unduly restrictive judicial construction of the English
statute.35
24.35 The 1976 Convention and 1996 Protocol are directly enacted into English
law, the text now forming Part I of Schedule 7 of the M erchant Shipping Act 1995 36 with
Part II adding English law provisions "having effect in connection with the Convention".
The Convention adopts as the basis of limitation the tonnage of ship in respect of which
the claim is made, the tonnage being measured in accordance with the International
Convention on Tonnage Measurements of Ships 1969. 37 As a consequence, subject to
any argument as to stay of proceedings and the applicable law the Convention will be
applied in any proceedings in an English court to any limitation matter within the scope
of the Convention. The 1976 Convention and 1996 Protocol
24.36 The Convention provides a framework for limitation of liability 38 of
shipowners, ship operators and salvors in respect of the aggregate of all claims arising
on a distinct occasion and for the setting up by the persons claiming limitation of a
limitation fund. 39 Invoking limitation is not an admission of liability. 40 Once a fund is
constituted in a State party having a Convention connection with the claim, other assets
held as security must be released by the court of any State party, and, if the fund is
constituted elsewhere may be ordered to be released. 41 Any person making a claim
against the fund is barred from "exercising any right in respect of such claim against any
other asset" of the person setting up the fund. 42 Applicability of the Convention 43
24.37 The Convention applies to claims within it once a person within the
Convention entitled to limit liability seeks before the court of a State party to limit
liability or procure the release of a ship or other security in respect of a claim within
the Convention. A State party may limit the ambit of the Convention in a numbe r of
ways. First, it may exclude from the Convention (a) any person not having his habitual
residence in a State party; (b) any ship not flying the flag of a State party. Secondly, it
may provide its own system of limitation for (a) ships intended for navi gation on inland
waterways; (b) ships of less than 300 tons; (c) ships engaged in drilling; 44 (d) claims in
which only its own nationals are involved and (e) it may reserve the right to exclude
claims in respect of wreck or cargo removal. 45
24.38 By the Protocol of 1996 a State party may in relation to another State party
(i) despite the Convention provisions regulate by national law the liability system for
claims for loss of life or personal injury to passengers providing the limit is not lower
than that specified in the Protocol and (ii) exclude claims for damage within the HNS
Convention. 46 A procedure is created for amendments of the limits by a maximum
amount by two thirds majority of the contracting States. 47 Geographical scope of the
Convention
24.39 The scope has been held by the English High Court to be limited to States
parties to the Convention. 48 Indeed any other conclusion would be surprising given the
general principles of applicability and the focus of the critical provision of limit ation
proceedings and limitation fund on courts of State parties. 49 Application of the 1976
Convention and 1996 Protocol in United Kingdom laws (i) The 1976 Convention
24.40 The text of the Convention is applied directly (i.e. has "the force of law")
with accompanying provisions specifying the national options taken by the United
Kingdom and where necessary translating Convention into national law. 50 The
Convention applies to occurrences taking place on or after 1 December 1986. 51 It
applies to "Her Majesty’s ships" as to others. 52
24.41 The national law options under the Convention and the adaptation of
Convention provisions into national law are set out in the 1995 Act. 53 The Convention
is applied to any ship whether seagoing or not, a ship including any structure (whether
completed or in the course of completion) launched and intended for use in navigation
as a ship, and to ships under 300 tons with lower limitation amounts. There is no
provision making the setting up of a limitation fund a prerequisite for claiming
limitation. Where security is released because of the constitution of a limitation fund,
the applicant seeking release is deemed to have submitted to the jurisdiction of the
English courts.
24.42 In respect of wreck removal the Convention is applied only where a fund has
been established by order of the Secretary of State to compensate harbour authorities for
reduction of amounts recoverable under the Act. Claims excepted from the Convention
in respect of oil pollution damage and nuclear damage are specified in terms of English
law. It is further specified that the exclusion of salvage claims encompasses a clai m for
special compensation in respect of damage or threatened damage to the environment. 54
(ii) The 1996 Protocol 55
24.43 The provisions came into force on 13 May 2004 in respect of other States
parties to the Protocol the United Kingdom 56 by virtue of the Merchant Shipping
(Convention on Limitation of Liability for Maritime Claims) (Amendment) Order 1998
(as amended by the identically named Order 2004). 57 It implements the Protocol and
national options exercised by the United Kingdom. The exclusion of spec ial
compensation claims in respect of salvage is now included in the Convention. Claims
under the HNS Convention are excluded and is modified in respect of passengers on
non-sea going ships to apply the limit of liability for death or personal injury i n respect
of each passenger. The limits of liability for ships under 300 tons are increased.
Courts in which limitation may be claimed
24.44 There is no provision expressly specifying any connection between forum
and dispute as a prerequisite for claiming limitation. A limitation fund may be
constituted in accordance with Article 11 with "the court or other competent authority in
any State Party in which legal proceedings are instituted in respect of claims subject to
limitation". It has been held by the En glish High Court that "legal proceedings" in the
context of the Convention includes arbitration. 58 The inclusion, it was held, would not
cause any limitation or security consequences different from court proceedings. Further
it would obviate the possibility that the shipowners ability to limit would depend on
whether there was an arbitration clause in a bill of lading —and that might differ in
relation to any one particular incident. Limitation may be claimed without constituting a
fund but a State party may provide that limitation may be invoked only if a fund has been
constituted (Article 10). In that event therefore a limitation claim may be made only
where a liability action has been brought so preventing a pre -emptive jurisdictional
strike by the limitation claimant. As the Convention makes no jurisdictional provision it
is arguable that a national law may impose its own restrictions. Conversely it may be
argued that as the Convention specifically gives one restrictive option (to requ ire a
fund) it impliedly permits the bringing of a limitation action in any court.
24.45 It has been contended 59 that the requirement of liability proceedings is to be
applied "by analogy" where there is no prerequisite of a fund. It would then follow that
limitation cannot be claimed save where liability proceedings are brought. However,
with respect, this construction changes an express Convention optional jurisdiction al
requirement (constitution of a fund) into a mandatory one. That seems contrary to the
Convention.
24.46 The application of the Convention in English law contains no restriction on
the claiming of limitation to the constitution of a fund. In 2005 in The Western Regent 60
the Court of Appeal held, with respect rightly, there to be no restriction in the
Convention or the CPR on limitation claims to the bringing of liability proceedings or
the creation of a fund either in the Convention or the CPR (as to the latter shown by the
power to order a fund after a decree).
24.47 It has been that the arrest of a vessel amounts to the institution of legal
proceedings for the purpose of jurisdiction over limitation claims. This contention is
based on the argument that arrest is a preliminary step for the enforcement of a claim
and if the vessel is not released the claim may be enforced on the vessel. However, a
vessel may be arrested solely for security with proceedings taken elsewhere. If such
arrest is seen as the institution of proceedings it provides the shipowner with the power
to constitute a fund in a jurisdiction solely invoked for security. At the least it poses a
problem of multiple proceedings.
24.48 There is no Convention provision as to jurisdiction in respect of liability
claims (against the shipowner) which would be within the scope of any limitation
decree but have not been made against the fund. Under English law to bring such claims
within any decree would require the serving of a limitation claim form, and that may be
within England or under the Civil Procedure Rules, as construed in The ICL Vikraman 61
out of England.
24.49 There are no Convention provisions in respect of multiple proceedings and
in this context there is little doubt that the Convention role is restricted to its emphasis
on one fund and jurisdiction in respect of the state in which it is constituted. It is then a
matter for that court to consider whether to stay limitation proceedings on the ground of
limitation or liability proceedings elsewhere (as to which see infra). In this context it is
important to consider the power of a limitation claimant to establish a jurisdiction by
starting first—and then dragging in the liability claimant.
24.50 The inclusion of arbitration within "proceedings" in English law ( see 26.39)
creates a difficulty with the power conferred on English courts to stay proceedings on
the constitution of a fund (Merchant Shipping Act 1995 Sch. 7, para. 8(3)). As Colman
J. pointed out any such stay of an international arbitration would be inconsistent with the
New York Convention—but held (rightly it is suggested) that that provision could not be
used to construe the Convention. In effect this would simply restrict the po wer of the
limitation claimant to control jurisdiction.
Persons entitled to limit liability62
24.51 By the Convention liability may be limited in respect of claims within the
Convention by
(a) a shipowner—this including owner, charterer,63 manager or operator of a
seagoing ship
(b) a salvor—this being defined as a person rendering services in direct
connection with salvage services, and
(c) an insurer of liability for claims subject to limitation.
The liability of a shipowner includes liability in an action brought against the
vessel itself. Limitation may also be claimed by any person for whose act, neglect or
default the shipowner or salvor is responsible. 64
24.52 In a decision being appealed to the House of Lords the Court of Appeal has
held that a charterer’s ability to limit is not restricted to circumstances in which he is
acting as a shipowner. 65 It does, however, depend on the nature of the claim brought
against him (see below). It does not extend to claims in relation to the ship by reference
to the tonnage of which it was sought to limit liability ( see below).
Claims within the Convention66
24.53 Subject to exceptions and conduct ( see infra) the claims are set out in
Article 2.1 and 2.2. Article 2.1 provides:
"Subject to Articles 3 and 4 the following claims, whatever the basis of liability
may be, shall be subject to limitation of liability:
(a) claims in respect of loss of life or personal injury or loss of or damage to
property (including damage to harbour works, basins and waterways and aids to
navigation), occurring on board or in direct connection with the operation of the ship 67
or with salvage operations, and consequential loss resulting therefrom 68;
(b) claims in respect of loss resulting from delay in the carriage by sea of cargo,
passengers or their luggage;
(c) claims in respect of other loss resulting from infringement of rights other than
contractual rights, 69 occurring in direct connexion with the operation of the ship or
salvage operations;
(d) claims in respect of the raising, removal, destruction or the rendering harmless
of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or
has been on board such ship;
(e) claims in respect of the removal, destruction or the rendering harmless of the
cargo of the ship;
(f) claims of a person other than the person liable in respect of measures taken in
order to avert or minimize loss for which the person liable may limit his liability in
accordance with this Convention, and further loss caused by such measures." 70
24.54 Article 2.2 provides:
"Claims set out in paragraph 1 shall be subject to limitation of liability even if
brought by way of recourse or for indemnity under a contract or otherwise. However,
claims set out under paragraph 1(d), (e) and (f) shall not be subjec t to limitation of
liability to the extent that they relate to remuneration under a contract with the person
liable."
24.55 The power to limit does not extend to claims in relation to the ship by
reference to the tonnage of which it was sought to limit lia bility. So there is no such
power in respect of a claim by a shipowner against a charterer based on explosion
caused by dangerous cargo. The phrase (in Article 2.1(a)) "in direct connection with the
operation of a ship" refers to damage to another ship or cargo. Following and adapting
this approach there is no power in shipowners to limit liability in respect of charterers
for loss or damage to or consequential on damage to a ship. 71 The restrictions are based
not on the class of persons entitled to limit b ut the nature of the claim.
24.56 There is power to limit however in respect of a shipowner’s claim to be
indemnified as against actions by cargo owners. 72 Such a claim fell with Article 2.1(a)
as based on damage to property on board the ship. In that regard a charterer could limit
liability as against cargo owner and it would be anomalous if that power did not exist as
against the shipowner.
24.57 The court was unable to envisage any other claim by a shipowner where
there would be ability to limit. In effect therefore there is little difference in
consequence between the approach that a charterer must act as a shipowner and that
focusing on the nature of the claim. It is perhaps simply a preferenc e for the means of
reaching a like conclusion. The matter is now for the House of Lords.
24.58 Claims excepted by Article 3 are: 73
(a) claims for salvage or contribution in general average; 74
(b) claims for oil pollution damage within the meaning of th e International
Convention on Civil Liability for Oil Pollution Damage, dated November 29 1969 or of
any amendment or Protocol thereto which is in force; [i.e. now the 1992 Convention 75]
(c) claims subject to any international Convention or national legislation governing
or prohibiting limitation of liability for nuclear damage;
(d) claims against the shipowner of a nuclear ship for nuclear damage;
(e) claims by servants of the shipowner or salvor whose duties are connected with
the ship or the salvage operations, including claims of their heirs, dependants or other
persons entitled to make such claims, if under the law governing the contract of service
between the shipowner or salvor and s uch servants the shipowner or salvor is not
entitled to limit his liability in respect of such claims, or if he is by such law only
permitted to limit his liability to an amount greater than that provided for in Article 6. 76
24.59 By the Protocol of 1996 ( a) is amended to add claims for special
compensation under the Salvage Convention Article 14 (i.e in relation to threatened
damage to the environment).
24.60 In regard to the exclusion under (e) in United Kingdom laws the Convention
is excluded from liability for loss of life, personal injury or property of a person "on
board the ship in question or employed in connection with that ship or with the salvage
operations in question" if he was on board or employed under a contract of service
governed by the law of any part of the United Kingdom. 77 It has been pointed out that
this may be construed to exclude a wider category of persons than provided for by the
Convention—the Convention focus on "servants of the shipowner or salvor" being
replaced by persons " on board the ship or employed in connection with the ship or
salvage operation". 78 Costs
24.61 Limitation is available "in respect of" specified claims and given the
differing national approaches to costs it would have been thought that if costs were to be
included it would be so stated. Further it would mean that the fund was reduced in
relation to liability claimants other than parties to a particular claim and possibly
provide a safeguard for limitation claimants in contesting claims. These factors have
played a part in two decisions holding (rightly) that costs are excluded from the
Convention.79 “Breaking the limits” (Article 4)
24.62 It is provided in Article 4 that a person may not limit his liability "if it
proved that the loss resulted from his personal act or omission, committed with the
intent to cause such loss or recklessly and with knowledge that such loss would result".
24.63 This reflects a critical change of approach to the breaking of the limits under
the 1957 Convention. Under that Convention the test was that the damage was due to the
"actual fault or privity" of the person seeking to limit. The more stringent criter ia now
adopted is coupled with a change in burden of proof. Formerly it was for the shipowner
to show lack of actual fault or privity. Under the 1976 Convention the liability claimant
has to establish on the part of the limitation claimant either intent to cause the damage or
loss or "both reckless conduct and knowledge that the relevant loss would probably
result". This requires foresight of the precise loss which occurred, loss of that type not
being sufficient. Where damage results from collision this me ans deliberate or reckless
action in a way which the claimant knew was likely to cause loss or damage to the
property of another where the same would be likely to flow to his own vessel. 80 24.64
The difficulty of establishing that there is no limit is incr eased when the defendant is a
company. It must then be shown that acts of the person responsible for the damage are
the acts of the company—this depending on where the person is in the company
hierarchy. It seems accepted that the limits will normally be u nbreakable—a trade off
for the higher limits established in the 1976 Convention. The higher limits have,
however, now met the fate of those which they replaced —they became out of date, and
are further increased by the 1996 Protocol. The limitation amounts
(a) under the unamended Convention 81
24.65 The amounts are calculated by special drawing rights as defined by the
International Monetary Funds. 82 They are converted into the currency of the state in
which limitation is sought according to the value of the currency at the date the
limitation fund is constituted. In respect of loss of life and personal injury the amounts
are—
(i) 333,000 Units of Account for a ship with a tonnage not exceeding 500 tons;
(ii) for a ship with a tonnage in excess thereof, the following amount in addition to
that mentioned in (i):
for each ton from 501 to 3,000 tons, 500 Units of Account;
for each ton from 3,001 to 30,000 tons, 333 Units of Account;
for each ton from 30,001 to 70,000 tons, 250 Units of Account; and
for each ton in excess of 70,000 tons, 167 Units of Account,
In respect of other claims the amounts are —
(i) 167,000 Units of Account for a ship with a tonnage not exceeding 500 tons;
(ii) for a ship with a tonnage in excess thereof the following amount in addition to
for each ton from 501 to 30,000 tons, 167 Units of Account;
for each ton in excess of 70,000 tons, 83 Units of Account.
The limits of liability for a salvor operating without a ship are calculated
according to a tonnage of 1,500 tons.
24.66 It is further provided—
Article 7
The limit for passenger claims

1 In respect of claims arising on any distinct occasion for loss of life or personal
injury to passengers of a ship, the limit of liability of the shipowner thereof shall be an
amount of 46,666 Units of Account multiplied by the number of passengers which the
ship is authorised to carry according to the ship’s certificate, but not exceeding 25
million Units of Account.
2 For the purpose of this Article "claims for loss of life or personal injury to
passengers of a ship" shall mean any such claims brought by or on behalf of any person
carried in that ship:
(a) under a contract of passenger carriage, or
(b) who, with the consent of the carrier, is accompanying a vehicle or live animals
which are covered by a contract for the carriage of goods.
24.67 Where the amount calculated on the personal injury basis is insufficient to
meet the claims in full the amount calculated for other claims is available to meet the
unpaid balance. The unpaid balance then ranks rateably for all claims, including, with
one exception,83 personal injury and other claims made against the non -personal injury
balance.
(b) under the 1996 Protocol
24.68 There is substituted—
(a) for paragraph 1 of Article 6—
"1. The limits of liability for claims other than those mentioned in Article 7, arising
on any distinct occasion, shall be calculated as follows:
(a) in respect of claims for loss of life or personal injury,
(i) 2 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,
(ii) for a ship with a tonnage in excess thereof, the following amount in addition to
for each ton in excess of 70,000 tons, 400 Units of Account,
(b) in respect of any other claims,
(i) 1 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,
(ii) for a ship with a tonnage in excess thereof the following amount in addition to
for each ton in excess of 70,000 tons, 200 Units of Account"; and
(b) for paragraph 1 of Article 7—
"1 In respect of claims arising on any distinct occasion for loss of life or personal
injury to passengers of ship, the limit of liability of the shipowner thereof shall be an
amount of 175,000 Units of Account multiplied by the number of passengers which the
ship is authorised to carry according to the ship’s certificate."
24.69 It is further provided—
"3bis Notwithstanding the limit of liability prescribed in paragraph 1 of article 7, a
State Party may regulate by specific provisions of national law the system of liability to
be applied to claims for loss of life or personal injury to passengers o f a ship, provided
that the limit of liability is not lower than that prescribed in paragraph 1 of article 7. A
State Party which makes use of the option provided for in this paragraph shall inform
the Secretary-General of the limits of liability adopted or of the fact that there are none."
The United Kingdom has not made use of this option. 84 The Limitation Fund85
24.70 Subject to Convention provisions relating to the constitution and distribution
of the fund and its effect on other actions and security, rules in respect of the fund and
connected procedure are governed by the law of the State party in which the fund is
established. 86 A person alleged to be liable may constitute a limitation fund in a State
party "in which legal proceedings are instituted in respect of claims subject to
limitation".87 The fund is to be of such amount as is set out in the Convention as the
limits applicable to the claims made together with interest from the date of the
occurrence giving rise to the liability until the date of constitution of the fund. The fund
is constituted either by depositing the sum or producing a guarantee acceptable under
national legislation of the state where the fund is constituted and consider ed to be
adequate by the court or other competent authority.
Consequences of establishing a fund
24.71 Provided a claimant may bring a claim against a fund and the fund is actually
available and freely transferable in respect of that claim, any cla ims so brought will bar
the exercise of any right in respect of such a claim against any other asset of the person
setting up the fund.88
Effect on liability jurisdiction—release of security 89
24.72 Any ship or other property arrested or attached within a State party in
respect of a claim lying against the fund must be released if the fund is actually
available90 and freely transferable in respect of the claim and was constituted —
(a) at the port where the occurrence took place or if it took place out of port at the
first port of call thereafter
injury, or
(c) at the port of discharge in respect of damage to cargo, or
(d) in the state where an arrest was made.
If arrested or attached in any other State party the ship or property may be
released. It is for national law to prevent any effect of the release of security on the
jurisdiction to consider the liability or limitation claim.
24.73 As had been held in the English High Court that (and appears clear) the 1976
Convention applies only as between States parties to it. Therefore there could be no
order made by an English court in respect of securit y held in relation to an action in rem
in Singapore (not at that date a party). Even in respect of a State party the Convention
provision authorises (or imposes) a release only in the jurisdiction where the security
is.91 Procedure and practice in English law “Limitation actions” Prior to 1 December
1986
24.74 Prior to 1 December 1986 it was statutorily provided that where "several
claims were made or apprehended" the person liable could apply for the determination
of the amount of liability and the court c ould distribute the amount rateably among the
defendants.92 The action was in personam and instituted by writ (see infra) and the
establishment of jurisdiction was as any other action —subject to satisfying any
substantive jurisdiction base through service of the writ.
24.75 Unless a decree restricted to named defendants was sought, compliance with
the procedural steps in the proceedings or service of documents and publicity led to a
limitation decree binding against the world. Secondly, even if there was on ly one
claimant it was probably open to a person liable to seek a declaration of limitation. It
was judicially suggested that the setting up of the limitation fund under the 1957
Convention as applied in the United Kingdom could found an action for the dec laration
of the rights flowing from the fund being set up. 93 It may have been that a finding or
admission of liability was seen as a necessary prerequisite for a limitation decree —but
if that was so it was, it has been held, a rule of practice rather than law.94 From 1
December 1986
24.76 English practice under the 1976 Convention differs markedly from that
preceding it insofar as the Convention provisions differed and all directly applied.
First, the claims subject to limitation differed in their categoris ation.95 Secondly, the
limits apply unless a claimant proves intention to cause damage or a reckless act with
knowledge that damage would probably result. It is not therefore for the shipowner to
establish his claim to limit but for the liability claimant to establish (on narrow grounds)
that the limits do not apply (see 24.63).
24.77 Thirdly, although a limitation fund is not a prerequisite for claiming
limitation, the fund may be constituted prior to any liability decision. It then follows that
any claim made against the fund (if available and transferable) bars the claimant from an
action against any other assets of the defendant and, if the fund is constituted in a
Convention country with a specified connection with the claim, no oth er security may be
taken or retained (see supra). The aim of these provisions is to create one fund as a
target and to break any link between providing that fund and proof of liability. The
purpose is therefore to ensure that where any right to limit is as serted a liability claim
should be brought in relation to any fund constituted to support that assertion.
24.78 Although there have been fundamental changes in the international
framework there was and is little change to the provisions of enforcement within the
United Kingdom. The methods of claiming limitation remain identical and the
establishment of a fund is not a prerequisite for invoking limitation. Unless the plaintiff
is content with a restricted decree the effect of a limitation decree remains as before —
against the world.
24.79 The rules of court provided as before the 1979 Act for a limitation action.
The action was defined simply as: "An action by shipowners or other p ersons under the
Merchant Shipping Act 1979 (subsequently the Merchant Shipping Act 1995) for a
limitation of the amount of their liability in connection with a ship or other property." 96
The definition in the Civil Procedure Rules is more succinct but to the same effect—"a
claim under the Merchant Shipping Act 1995 for the limitation of liability in connection
with a ship or other property". 97 So an action (or claim) against one defendant is not
excluded.98
24.80 There was a change in the rules of court to implement the 1976 Convention
provision in relation to the release of security upon the constitution of the funds. Under
the construction of the 1957 Convention by the English courts the release of other
security was dependent upon the limitation claimant satisfying the court of the
entitlement to limit. There was no provision in the rules, therefore, for any procedure
indicating to liability claimants that a fund had been established. Following the 1979
Act and the link between the right to limit and the claim to do so, the person setting up
the fund may warn liability claimants of its existence by the entry of a caveat (now
caution) against arrest in the Register. 99
24.81 A second consequential change (but not in the rules) is the liability to costs.
As has been said, prior to the 1979 Act it was for the shipowner to establish entitlement
of limitation and it was held that the shipowner was therefore liable to pay the costs for
making good his claim. Since under t he 1979 Act it is now for the liability claimant to
show non-entitlement to limitation, once the claim has been shown to be subject to
limitation the costs of any investigation follow the event. Once the limitation claimant
shows that the claim is within the Act the costs will fall on the liability claimant. 100
Establishing jurisdiction
24.82 The limitation claim must be commenced in the Admiralty Court. It is an
action in personam.101 The person seeking relief must be named as the claimant and at
least one of the liability claimants against him must be named as a defendant. Other
defendants may be described. The claim form must be served on all named
defendants. 102 It may be served in England in accordance with general principles of
service of claim form in personam and out of the jurisdiction on specified grounds ( see
24.87).
24.83 An acknowledgment of service is not required unless jurisdiction is to be
contested. 103 Every defendant on whom a claim form is serv ed104 must either (a) within
28 days file a defence or a notice of admission of the right to limit or (b) if jurisdiction
or its exercise is to be disputed within 14 days, or if served out of the jurisdiction
within the period specified, file an acknowledg ment of service. 105 Despite an
acknowledgment being filed the defendant will be treated as having accepted
jurisdiction unless an application that the case be not heard is made within 14 days. 106
Where the right to limit is not admitted and a general limitation decree is sought, within
seven days of the filing of a defence of the defendant last served or expiry of the period
for doing so, the claimant must apply to the Registrar for a case manageme nt
conference.107 The limitation fund
24.84 The claimant may constitute a limitation fund before or after a limitation
claim is started. The fund is established by paying into court the amount of the liability
as limited and interest at the set rate runnin g from the date of the occurrence giving use
to the liability to the date of payment in. A claim must be made against the fund and the
defendant must serve the statement of case on the limiting party and all other defendants
within the time fixed for filing claims. 108 Within seven days of that date the Registrar
will fix a date for a case management conference at which direction will be given for
further conduct of the proceedings. Subject to statutory qualifications the fund is
distributed to claimants rateably according to the claim, 109 no lien or other rights in
respect of the ship or property affecting the proportions. 110 Recognition of foreign
proceedings
24.85 The traditional view was that a limitation decree is a matter for the English
courts and English law. Until the 1957 Convention the existence of a foreign fund
appears to have been ignored and the sole recognition of foreign limitation proceedings
or settlement was to take payments made into account when distributing the funds. 111 The
1957 Convention appears to have had little effect on this partly because of the
restrictive construction by the English courts of the prerequisite for the release of other
security once a fund was constituted. On the other hand the 1976 Convention may
provide the instrument for linking liability and limitation proceedings and giving scope
for discretion in the establishing or the exercise of any jurisdiction in respect of each
type of claim. Apart from the need to comply with substantive jurisdiction bases, such
discretion is relevant to the consideration of stay of English proceedings because of a
foreign jurisdiction agreement or on the grounds of forum non conveniens.112 Service of
claim form in England
24.86 The procedure is as for any claim in personam (see Chapter 9). Service of
claim form out of the jurisdiction
24.87 A limitation claim form may be served out of England if:
(a) the defendant has his habitual residence or a place of business within England
and Wales, or
(b) the cause of action arose within inland waters of England and Wales within the
limits of a port of England and Wales, or
(c) an action arising out of the same incident or series of incidents is proceeding in
the High Court or has been heard and determined in the court, or
(d) the defendant has submitted or agreed to submit to the jurisdiction of the High
Court, or
(e) Admiralty Court has jurisdiction over the claim under any applicable
Convention.113
24.88 Permission of the Court is a prerequisite. Grounds (a) to (c) reflect the
grounds which by the Supreme Court Act implementing the Collision (Civil
Jurisdiction) Convention 1952 limiting the circumstances in which an English court has
jurisdiction in an in personam collision claim. Ground (d) is consistent with that
Convention114 but the discretion of the Court to uphold it relevant to other claims
applies. 115
24.89 Ground (e) as inserted in the Rules of Court reverses a consequence
(probably unintentional) of the drafting of RSC Orders 11, 75 by which, despite
jurisdiction under the Brussels or Lugano Convention, leave of the court was apparently
still required in "Admiralty actions". 116 However, as drafted it is potentially of far
wider scope because of its focus on Convention rather than enactment. If it is applied as
it reads it provides for direct effect of Conventions —an interesting method of
implementation in English law.
24.90 However, the requirement of permission has reappea red and to that extent is
inconsistent with the two Conventions and EC Regulation 44/200 1. Further there is the
question whether "Convention" includes the Limitation of Liability Convention, that in
turn raising two issues of construction. It could only i nclude that Convention if reference
to the "claim" is to the claim to limit rather than the liability claim. Even if that be so the
1976 Convention can only qualify in an oblique way in that there is no jurisdiction
provision in it, save where a party has a claim against the limitation fund. In The ICL
Vikamuran,117 in some elegant desperation Colman J. cut through the problems to the
common sense solution as he saw it —that "claim" meant a limitation claim and
Convention included the Limitation Convention. In that way the undesirable exclusion of
some defendants in the limitation action (either because of being outside the EU or
because of no extant claim against the fund) would be avoided. And that must be right.
The points made about the CPR provision can only surely illustrate the need to rethink
the need for permission to serve out. Exercise of jurisdiction—stay of proceedings
24.91 Relevant to the staying of proceedings after jurisdiction is established is
first, any statutory rule relevant to the jurisdiction considered mandatory under English
law, secondly, apart from any mandatory provision, the English interest in the
proceedings, thirdly, the governing law, fourthly, on whether the parties have agreed to
go elsewhere, and fifthly, lacking any jurisdiction agreement, whether there is a more
appropriate forum (forum non conveniens). Apart from consideration within the
European jurisdiction regimes the English courts have not given weight to the
desirability of liability and limitation being considered by the same court. 118 This seems
surprising given the undoubted connection between factors relevant to both issues.
24.92 It is difficult to appreciate substantive differences in the factors of overlap
given weight in the context of the European regimes 119 and those relevant outside its
scope. The criterion of stay under the regimes is the risk of irreconcilable judgments
(see infra) and that surely should play a part outside them when considering substantive
actions. 120 The avoidance of such a risk and the maintenance of the principle of
shipowner’s choice even by staying the English limitation action until decision on
liability and quantum by the "natural forum" for liability issues 121 surely gives too much
weight to that choice. It stresses separation of proceedings when the emphasis should
surely be on joinder. The question of stay becomes of increased importance because o f
the likely view of the governing law as the law of the forum ( see below). The limitation
decree
24.93 The Court may issue a restricted or general decree. A restricted decree is
good against any named defendant who has admitted liability or who has failed to file a
defence, and there is no need to advertise it. 122 A general decree is good against the
world and, when granted, the claimant must advertise it as directed by the Court, and
file in the registry a declaration and copies of the advertisement. 123 When granting a
decree the Court may stay any other proceedings relating to the same occurrence, order
a limitation fund be established and, if the decree is restricted, distribute the fund. 124 A
person who was not named as a defendant may apply to set asid e a decree within the
period specified in it. The 1976 Convention, jurisdiction agreements and forum interest
(a) Jurisdiction agreements
24.94 A jurisdiction agreement relating solely to limitation proceedings may be
entered into after the events creating the liability, or the limitation claim may be within a
jurisdiction agreement focused primarily on liability proceedings —either in the case of
a collision action entered into after the event creating liability 125 or as part of a contract
of carriage, liability under which is subject to the 1976 Convention limitation rules.
24.95 The 1976 Convention directly affects reliance on a jurisdiction agreement
only insofar as it provides uniform limitation rules for contracting States. It could,
therefore, be argued that on general principle, any clause opting for a jurisdiction in a
contracting State other than the forum be upheld on the basis of enforcement of contract
or, conversely, that there is no reason to uphold it as the law will be the same. The
approach will depend on the force given to jurisdiction agreements by the national law.
24.96 In the light of the enactment of the text of the 1976 Convention into English
law (as distinct from the method of implementing the 1957 Convention) it may be
thought arguable that it would be contrary to policy to allow evasion through choice of
jurisdiction of a non-contracting State. The purpose of the Convention, it may be said, is
to create a uniform system. 126 At the International Conference leading to the 1976
Convention, Liberia proposed the insertion of a clause that would avoid any contractual
provision depriving a person of the benefits of the Convention. 127 The proposal
received little support, there being some feeling that to prevent waiver of the
Convention provisions would be to favour shipowners to an unacceptable degree. Such
evidence as there is, therefore, points against any international Convention mandatory
principle, although a national law may create its own.
24.97 The validity of a jurisdiction agreement having the consequence of
application of a different limit or limitation process would be affected only in that
event. Even if such an agreement is valid a contracting State arguably may not uphold
such an agreement if the selected jurisdiction imposed a lower limit of liability either
on policy grounds or treating the matter as simply a relevant element in the exercise.
The approach in English law
24.98 Apart from the European jurisdiction regimes a n English court may exercise
its discretion to refuse to uphold a jurisdiction clause in the sense of allowing
proceedings contrary to it. While it is said that such an agreement should normally be
upheld there are factors such as the connection between ca se and forum and the
availability of evidence which may lead to it being overridden. 128 In almost all cases
the agreement under consideration is for a foreign jurisdiction. However, the Court of
Appeal has refused to confirm an injunction prohibiting actio n in a foreign state contrary
to an agreement between two of the litigants in England. 129
24.99 Despite some judges adopting an approach favouring the 1976 Convention in
the context of forum conveniens, the Court of Appeal has made it clear that it has no
more weight as an international regime than the 1957 Convention. 130 As a consequence it
is highly unlikely that a court would see the imposition of the lower limit as a factor in
not upholding a jurisdiction clause. In any event it may well be open to the party
wishing to uphold the agreement to being an action for breach of contract resulting in the
imposition of a higher or lower limit.
(b) Forum non conveniens
24.100 Apart from any Convention provisions excluding its operation the possible
application of forum non conveniens to limitation proceedings is twofold —a stay of
limitation proceedings either because of such proceedings elsewhere or because of
liability proceedings elsewh ere. In addition the varying national approaches to
limitation may be a factor in a stay of liability proceedings. 131
24.101 Prior to the 1976 Convention the traditional English view that limitation is
a matter for the forum and that the forum was a matter of choice for the shipowner made
any stay unlikely in either context. In 1988 in The Falstria132 the liability proceedings
were in Denmark and the liability claimants sought a stay of the limitation action in
England—the underlying reason being that at the material time the limitation amounts
were higher in Denmark and the liability would not be limited. The case was decided
on the basis that there was more than one potential liability claimant and Sheen J.
robustly rejected the stay application. The judge held that there was no jurisdiction to
stay such an action and, it would seem, that if there was, it would have been unjust in his
view to stay a limitation action in which there may be English as well as foreign
claimants.
24.102 The difference between single and multiple claims is not as stark as it is
made to appear. It is with respect to put the matter back to front to hold that a stay
should not be granted because it was only through an Englis h decree that the shipowner
could effectively limit against all claimants. The effectiveness in reality depends on
focusing the liability action or arbitration on the place of the limitation fund or, at the
least, recognition of such a fund by any court be fore which a liability action is
brought.133
24.103 The existence of multiple claimants is a relevant factor in considering the
exercise of jurisdiction in the limitation action but no more than a factor. The reason for
the practice that the place of the limitation proceedings is a matter for the shipowner
seems not to be articulated beyond respecting the choice, but may be connected with the
perceived need for a forum decree. In The Falstria Sheen J. took the view that the
purpose of a limitation action in England was to obtain a limitation decree in relation to
claims in the United Kingdom and that could only be declared by a court in the United
Kingdom. But recognition may depend on the "liability" court.
24.104 In The Volvox Hollandia 134—a limitation action was brought in Holland
and a liability action in England. An action in England sought a declaration that
shipowners were not entitled to limit but leave to serve out refused. The Court of
Appeal emphasised the right of the shipowner to choose the forum and commented that
in granting leave the trial judge had given undue weight to liability and limitation issues
being before the same court.
24.105 In 1998 in Bouygues Offshore SA v. Caspian Shipping Co. 135 both Rix J.
and the Court of Appeal refused to stay limitation actions in England to allow them to be
brought in South Africa (a 1957 Convention State). The basis of argument before Rix J.
was that liability proceedings as regards at least one claimant were to take pl ace in
England but that the natural forum for another was South Africa. The decision took into
account the lack of argument that there was no right to limit but in essence was a
continuation of the view that the limitation forum is for the shipowner. Limit ation
decrees were granted. In the Court of Appeal it became clear that the liability
proceedings would be in South Africa but the refusal to stay the limitation action was
maintained. The right of the shipowner to choose the forum and the lack of any limi tation
issues was again given considerable weight.
24.106 The view that the place of limitation proceedings is a matter for the
shipowner seems to put an undue insistence on a forum decree —even where there are
multiple claimants. So long as that attitude i s prevalent it puts limitation actions into a
class of their own in which the whole focus is on English jurisdiction and English law.
On this view limitation will be a factor in considering a stay of proceedings only in
respect of liability. This seems to be of dubious defensibility and the lack of any
limitation issue seems a rather curious reason to support a decree on principles which
would not apply were the matter to be considered with the liability proceedings. There
is further the extreme uncertainty of the force or recognition of the decree in the liability
forum.136
Effect of the 1976 Limitation Convention
24.107 The consequence of the 1976 Convention seems as between contracting
States clearly to be the removal of any foundation for undue forum emphasis. There are
common limitation principles and once a fund is established a focus of claim is on that
fund.137 There is no Convention provision dealing with multiple proceedings. 138
However, if the Convention intention is to focus on the fund there are strong reasons for
staying or preventing any limitation proceedings brought in a contracting State other than
that in which the fund is established. If, as appears so, the fund could be constituted only
if liability proceedings had been commenced this would support not only a stay of
limitation proceedings but any liability proceedings also commenced in another
contracting State.139
24.108 The effect of the 1976 Convention as between contracting States on cases
such as The Falstria or The Volvox Hollandia depends initially on whether the
Convention is seen as limiting the establishment of the fund to a country in which
liability proceedings are brought. 140 If so, the emphasis on the right and desirability of
the shipowner choosing his own jurisdiction for limitation in each case no longer has
force. In The Falstria there would have been no limitation proceedings in England and
in The Volvox Hollandia there may have been a case for service out if England was the
sole liability forum. There seems no case for forcing a liability claimant into a
Convention limitation jurisdiction unless the Convention permits the establishment of a
fund when no liability proceedings are brought. The simple starting of limitation
proceedings should not be a ground for dragging in the liability plaintiff or restraining
the pursuit of liability proceedings—it is the constitution of a limitation fund which
provides the necessary focal point.
24.109 The Convention has no effect on forum non conveniens as between an
English court and a court of a non-contracting State. As indicated earlier in English law
the 1976 Convention is to be given no more importance than that of the 1957
Convention.141 Whether it would be given weight in relation to a State not party to either
Convention remains to be seen. Effect of the European jurisdiction regimes
24.110 The regimes apply to limitation proceedings as to any other, provided that
in national law such proceedings are against a defendant. The general jurisdiction bases
therefore apply (see Chapters 5, 6). As discussed in Chapter 6 there is a jurisdiction
base addressed specifically to limitation proceedings in that it is provided in EC
Regulation 44/200 1 Article 7 that the court having power to hear the liability action has
power to consider any limitation claims. 142
24.111 A serious consequence of the limitation provision is that, subject to any
limitation on jurisdiction through the need under the 1976 Limitation Convention for
liability proceedings to have been commen ced, it authorises a pre-emptive strike by the
person claiming limitation. Because the limitation action is "related" to a liability action
(ignoring for the moment any effect of the Limitation Convention) it may then be that the
only jurisdiction for both types of action is that of the limitation action ( see infra).
24.112 A subsidiary effect of the 1976 Convention may be, because of the release
of property from arrest on the constitution of a limitation fund, to remove reliance on
arrest or equivalent security as a basis of liability proceedings within the appropriate
European regime. The provision in English law that, where security is released because
of the constitution of a limitation fund, the applicant seeking release is deemed t o have
submitted to the English "liability" jurisdiction 143 will not of itself constitute a European
jurisdictional base. If the case fell within the substantive provisions of EC Regulation
44/200 1 or either Convention the question of jurisdiction would t hen be a matter for
those provisions.
Staying proceedings
24.113 Liability and limitation actions do not create multiplicity of proceedings
involving the same clause, subject matter or of action so that proceedings in a court
other than that first seised must be stayed pending establishing jurisdiction in that first
seised.144 However, they do constitute "related actions" conferring on the court later
seised the power to stay proceedings. 145 The English courts had previously reached the
conclusion that the actions were related.
24.114 In 1997 in The Happy Fellow 146 the Court of Appeal stayed a limitation
action where there were liability proceedings in France. The reasons for the stay were
(i) no admission of liability until after a first instance judgment staying the action, (ii)
even if there was admission there were investigations in France as to the cause of the
damage, it being "self-evident" that any conclusions might be irreconcilable with those
reached in an English limitation action, and (iii) the French court could and would deal
with the limitation issue. It is an approach which could be justifiably adopted also in
cases not within any of the regimes.
24.115 Under the regimes the court first seised has no discretion to stay and the
court second seised may then be faced with staying liability proceedings because of
previously instituted limitation proceedings. It follows that considering the regimes
alone, the liability defendant may have some control over the place of liability
jurisdiction in the sense of being able to initiate proceedings in the jurisdiction of his
choice. A court first seised may therefore have no power to stay a limitation action even
though no limitation fund had been established—despite the fact that it was only in the
court second seised that a fund could be constituted through liability proceedings having
been initiated there. Where the court second seised has a discretion there normally
would be a stay but much lower limitation limits or the setting up of a limitation fund
could work against such a stay—particularly if no fund had been constituted in the other
courts. The law applicable to limitation issues
24.116 The general question of applicable law is the subject of Chapter 26.
Limitation poses issues particular to it because of forum dominance. In the light of ever
increasing Convention influences generally and the interrelation between liability and
limitation proceedings reference is made to those issues in this chapter.
24.117 Apart from Conventions English courts have traditionally viewed all
aspects of limitation as an issue for English law —or more generally the law of the
forum.147 The refusal to recognise any rules but the English probably stems from seeing
limitation as a matter of procedure or remedy. There is the added factor that principles
of limitation vary fundamentally. Further, and importantly, global limitation may apply to
multiple liability claims governed by different laws —although the problems thereby
caused would not necessarily be relevant to a recognition of foreign decrees (as to
which see infra). Where there is only one claimant or where all liability claims are
subject to the same law arguably limitation should be referred to that law. 148
24.118 Limitation is not, however, viewed universally as wholly for the forum. A
distinction may be drawn between limiting a claimant’s right (a substantive matter) and
quantifying the amount recoverable (a procedural matter). In the United States liability
in respect of an event occurring in territorial waters would presumptively be referred to
the law of the state in which the waters are. 149 In respect of the amount recoverable the
United States Limitation of Liability Act is applied to all limitation proceedings within
the United States.
24.119 Consistent with the conflicts rule, subject to the limit under the United
States Act, insofar as a foreign limitation of liabil ity statute attaches to the right rather
than simply limits the sum recoverable as damages the United States courts will apply
that statute. So the ability of a time charterer to limit liability or a restriction on a right
so that a sum recoverable is less in amount than recoverable under United States law
may be referred to foreign law. 150
24.120 In 1995 in Caltex Singapore Pte Ltd v. BP Shipping Ltd151 the defendants’
vessel collided with the plaintiffs’ jetty in Singapore and liability was admitted. The
plaintiffs brought a limitation action in England because the 1976 Convention limit was
greater than the claim, the defendants sought a stay to bring proceedings in Singapore
where at that date the 1957 Convention limits applied. The defendants argued that even
if the action proceeded in England the Singapore limit would apply as part of the law of
the place of the tort. The contrary argument was that limitation was a procedural matter
governed by the law of the forum. Clarke J. concluded that where there a re multiple
claimants the right to limit must be procedural, as the extent of the liability depended on
the number and nature of the claims brought. This pointed to the categorisation of the
right as procedural even if there was only one defendant.
24.121 There was no right to limit to a maximum amount in relation to any one
claimant—but to an aggregate amount. The classification as procedural was supported
first by the general rule relating to quantification of damage, and that the limitation is not
on the claimants’ liability to the defendant (as it is under the Hague -Visby Rules). It is to
reduce the amount of the claim proved dependent on the number of claims. So,
following the analysis in the United States, it does not attach to the claimants’ right. Tw o
further supporting factors were that the limitation fund operates as a limit on all
liabilities arising out of one event and the practical difficulties of tonnage limitation
were governed by more than one law because of the need to ascertain all claims b efore
the fund is set up. The final conclusion was that the 1976 Convention applied to a
limitation action in England as part of the law of the forum and not as part of its
substantive law. This analysis provides powerful reasons for viewing the English
limitation rules as procedural.
24.122 The fundamental requirements in respect of governing law are for an
effective international limitation scheme, the constitution of one limitation fund (and one
only) to focus all claims on that fund, and to adopt common criteria for assessing
limitation and fixing the limits. Even lacking agreement on criteria and accepting that the
law of the forum has the strong claim there is much to be said for also accepting that
paying no regard to concurrent foreign proceedings with the same aim is neither
inevitable nor always desirable. This is, however, as much a matter of jurisdiction as of
governing law.
24.123 In 1992 in The Sylt the Dutch Supreme Court refused to app ly the 1976
Convention where under Dutch conflicts rules the right to limit was governed by the law
of a non-contracting State. Such an approach has been justifiably criticised as contrary
to the purposes of the Convention. 152 But this depends on the importance attached to the
Convention as reflecting an international regime and as such a mandatory policy for a
contracting State. In the Caltex case Clark J. saw the Convention as to be applied as
part of the law of the forum rather than as an overriding mand atory rule. However, in
considering the stay in favour of the natural forum Clarke J. stressed the policy in
English law reflected in adopting the Convention and thought it "objectively desirable"
and serving the ends of justice that the 1976 Convention sh ould apply. The difference in
limits was a juridical advantage leading to refusal of stay of the limitation issue. So the
proceedings were stayed pending decision on quantum in Singapore.
24.124 In the Herceg Novi and Ming Galaxy153 the Court of Appeal took quite a
different view of the 1976 Convention to that of Clarke J. in Caltex and applied at first
instance in the case on appeal. 154 The Court stayed a liability action in relation to a
collision in Singapore waters when there wer e liability and limitation proceedings in
Singapore. The Court concluded that the 1976 Convention had not been universally
accepted and could not be said to be an international view of where substantial justice
lies. It was the right of states to stay with the regime it preferred and it was impossible
to say that substantial justice was not available in Singapore. It could not be said that
either the 1957 or 1976 Convention was objectively more just than the other.
24.125 So, while the limitation regime of the 1976 Convention reflects procedural
rather than substantive rules, its enactment in the United Kingdom does not provide
overriding mandatory rules. It forms part of English law to be applied if jurisdiction is
to be exercised.155 But it does not provide an exceptional factor for that exercise at least
where an alternative forum is the natural forum and the 1957 Convention would be
applied.
24.126 There is no reason why these principles should not also apply where
limitation constitutes the sole issue. All the more so if the jurisdiction is between two
1976 Convention States. At the heart of the Convention lies a single limitation fund, and
once that is constituted in accordance with the Convention all liability in limitation
proceedings should be focused on it.156 By this token forum law will continue to govern
but attention will be concentrated not on the right to limit in England but the right to limit
once, with the constitution of a fund as a security. There is no reason why such a
principle should not operate whether or not the fund is in a Convention State —always
subject to non-reference to a foreign jurisdiction or law because of disapproval of
criteria or limits. Recognition of foreign limitation decrees
24.127 The general question of recognition of foreign judgments is the subject of
Chapters 27 and 28. Reference is made here to issues particular to limitation decrees.
Apart from the European jurisdiction regimes
24.128 In The Wladyslaw Lokietek 157 Brandon J. clearly thought that in many
countries and in most cases a plaintiff would have to prove his claim in the country in
which the fund against which he was claiming was established. It would help the
plaintiff not at all to have established his claim elsewhere. The most in English law that
recognition of any foreign act or declaration in respect of limitation achieves for a party
is credit for payments made. 158 Even in this respect the person liable must establish that
the payment reflects liability in English law. So in The Giacinto Motta 159 following a
collision shipowners had settled a claim by cargo owners made in the United States on
the basis of a liability under that law leading to a payment of double the amount
recoverable in English law. They were held entitled to have taken into account in
distribution of a fund in England only such sum as the cargo owners could have claimed
against the fund, and that was the sum which was recoverable under English law.
24.129 Save for the reference to future compulsion to pay compensation the 1976
Convention contains no provision relating to the recognition of judgments. At the
International Conference, Australia sought to introduce a comprehensive clause
imposing a duty to recognise a judgment "in respect of a claim enforceable under this
Convention" 160 given in courts of the state of the defendant’s residence or place of
business or in courts to the jurisdiction of which the defendant submitted. 161 It received
minimal support, primarily on the basis that there were Conventions concerned with the
enforcement of judgments and there was some indication that under such Conventions
liability judgments would be recognised.
24.130 There seems no reason why the general principles of res judicata and issue
estoppel should not apply in respect of any issue of limitation just as of liability —
particularly if litigated within the framework of the 1976 Convention. 162 If this be right,
foreign limitation decrees should be recognised as enforceable judgments subject to the
general defences.
Under the European regimes
24.131 Any limitation decree pronounced in a court of a Member State is a
judgment to be recognised in all other such states subject only to the grounds specified
in the appropriate regime. 163 2. Oil Pollution Claims
24.132 A shipowner and (where sued directly) a person providing a security for
any claim (the insurer) may limit liability for oil pollution claims made in accordance
with the International Convention on Civil Liability for Oil Pollution Damage 1992
enacted into English law by the Merchant Shipping Act 1995, Part VI, Chapter III. 164 An
owner or insurer who has or is alleged to have incurred a liability under that Act may
apply to the court for limitation. After a liability finding payment into court may be
directed, such payment providing a limitation fund.
24.133 Under the Merchant Shipping Act 1995, Part VI, Chapter IV 165 where a
claimant cannot obtain full compensation the Oil Compensation Fund is liable for
further compensation for such claims, and that liability is itself limited to an amount
specified by statute or statutory instrument. In this context the Fund becomes the
limitation fund. (a) Limiting liability in respect of an oil pollution claim
24.134 There is no reason why, where in the perhaps unlikely event of there being
only one claimant, limitation may not be claimed by the liability defendant through
defence, counterclaim or action for a declaration. Apart from this possibility an "oil
pollution" limitation claim is within the provision of the Part 61 applying generally to
such claims.166 The limitation claims
24.135 The 1995 Act provides (in section 158): 167
"(1) Where the owner of a ship has or is alleged to have incurred a liability under
section 153168 he may apply to the court for the limitation of that liability to an amount
determined in accordance with section 157. 169
(2) If on such an application the court finds that the applicant has incurred such a
liability but has not found that he is not entitled to limit it, the court shall, after
determining the limit which would apply to the applicant’s liability if he were entitled
to limit it and directing payment into court of the amount of that limit,
(a) determine the amounts that would, apart from the limit, be due in respect of the
liability to the several persons making claims in the proceedings; and
(b) direct the distribution of the amount paid into court (or, as the case may be, so
much of it as does not exceed the liability) among those persons in proportion to their
claims, subject to the following provisions of this section.
(2A) Where—
(a) a distribution is made under subsection 2(b) above without the court having
found that the applicant is entitled to limit his liability and,
(b) the making of the distribution is not to be regarded as affecting the applicant’s
liability in excess of the amount distributed.
(7) The court may, if it thinks fit, postpone the distribution of such part of the
amount to be distributed as it deems appropriate having regard to any cl aims that may
later be established before a court of any country outside the United Kingdom.
(8) No lien or other right in respect of any ship or other property shall affect the
proportions in which any amount is distributed in accordance with subsection (2)(b) of
this section."
24.136 The limits may be broken against the owner on much the same narrow
grounds as for global limitation, i.e. where the liability claimant proves that the
discharge, escape or contamination threat resulted from anything done or omitted to be
done either with the intent to cause the damage or cost or recklessly and in the
knowledge that any such damage or cost would result. 170 In a direct action against the
insurer the limits may not be broken. 171
24.137 Under the Convention as reflected in the Act actions are to be brought in a
State party where the damage occurs subject only to the possibility of damage occurring
in more than one such state. As limitation may be claimed in respect of liability incurred
or alleged to have incurred under the Act it must follow that a limitation claim may be
brought in England only where the liability includes liability for damage or cost in the
United Kingdom. A limitation claim under Part VI of the 199 5 Act is governed by the
same jurisdictional and procedural rules as for that under Part VII 172 governing
limitation claims in general.
Stay of proceedings
24.138 As the Convention framework seeks to concentrate claims in respect of
damage or cost in a State party in the courts of that party the scope for declining
jurisdiction in respect of Convention countries is restricted. However, as recoverable
damage or cost extends to other Convention countries there is in that context the imp lied
possibility of a more appropriate forum within the Convention —including the agreement
of the parties on one forum. Further, as under the Act the establishment of a limitation
fund in another Convention country is to be recognised it would seem that bo th or either
of liability and limitation proceedings may be the subject of an application for stay.
Declining jurisdiction in respect of a non-Convention country would mean in effect not
applying the liability or limitation scheme reflected in the 1971 Act . That is hardly
likely.
The “Limitation Fund” and the Consequences of Constituting Such a Fund
24.139 Until 17 July 1997 on any application for limitation a court had first to find
liability, and then direct payment into court of the a mount of the limit. So unlike a
limitation action under Part VII ("global limitation") the court was under an obligation
to find liability before considering limitation and to direct that a "fund" be constituted.
In respect of applications to limits made a fter that date the fund may be established (and
distributed) unless there is a finding of non -entitlement to limit (see supra).173
24.140 Once the fund is established and there has been a finding of entitlement to
limit:
(i) the court "shall order" the release of any other security
(ii) no judgment or decree for any claim shall be enforced save as to costs
(iii) the making of the payment relieves from liability any other person who is
liable for the damage or cost and is entitled to limit his liabilit y in respect of the ship. 174
Limitation Funds outside the United Kingdom
24.141 Where a person is liable under both the laws of the United Kingdom and
the law of another Convention country for the same damage or cost, any limitation fund
established in that other country will have the same consequence in the United Kingdom
as one established there. 175 As a result any security must be released and any judgment
resulting from any action in the United Kingdom not enforced.
The applicable law
24.142 There is little doubt that the statutory principles are mandatory. It follows
that any agreement as to applicable law will have no effect. The laws of Convention
countries apply insofar as a limitation fund established there is to be recognised as a
basis for release of security and the channelling of liability to the person liable under
Part VI of the 1995 Act where there is concurrent liability and power to limit.
Recognition of foreign judgment
24.143 A judgment of a court of a Convention country to enforce a claim in respect
of liability on corresponding grounds to the Act is to be recognised under the general
principles of the Foreign Judgments (Reciprocal Enforcement) Act 1933. 176 Such
recognition will resolve any issue of liability including limitation.
Global limitation and oil pollution limitation compared
24.144 There are therefore a number of differences between the oil pollution and
global limitation schemes. That relating to oil pollution retains many of the
characteristics of the global limitation scheme as it was prior to the Limitation of
Liability Convention 1976 and the Merchant Shipping Act 1979. So there is an
interaction between liability and limitation issues and the establishment of the fund is
through court direction. On the other hand the release of other security is mandatory in
respect of an oil pollution claim while only mandatory in certain circumstances where
global limitation is claimed.
24.145 Further, any judgment of a Convention court "to e nforce a claim" within the
ambit of Part VI of the 1995 Act is to be recognised and enforced in the United
Kingdom. While, therefore, limitation may be pleaded if the judgment simply goes to
liability it is difficult to argue that any judgment as to the am ount for which a defendant
is liable is not also to be recognised or enforced. (b) Limited liability of the
International Fund for Compensation for Oil Pollution
24.146 The International Fund is liable only if the claimant for damage or cost has
been unable to recover full compensation against the person liable, one of the narrow
exclusions does not apply and the reason for the failure to recover is one specified in
the 1995 Act.177 One such reason is that the damage or cost exceeds the limited liability
of the person liable. The liability of the Fund is in turn limited in respect of any incident
to an amount calculated in accordance with the Fund Convention as set out in Schedule
5 to the Merchant Shipping Act 1995. 178
24.147 Proceedings may be taken against the Fund directly under the Merchant
Shipping Act 1995. Notice of any claim against a defendant asserted to be liable may be
given to the Fund and the Fund may be granted leave to intervene in any action against
that defendant (whether notice is given or not) (see Chapter 9). So the Fund is provided
with an opportunity to raise limitation in proceedings concerning it.
24.148 Limitation is enforced through the requirement that a court must notify the
Fund of any judgment against it and that no such judgment is to be enforced without
permission of the court. Such permission is not to be given unless and until the court is
notified by the Fund of any reduction in the amount for which the Fund is liable. The
judgment is then enforceable only fo r the reduced amount. 179 Jurisdiction, applicable
law and recognition of judgments
24.149 As limitation by the Fund is implemented through permission to enforce a
liability judgment against it, there is no separate limitation action or limitation decree.
Issues of jurisdiction applicable law and recognition of judgments are therefore those
applicable in the context of the liability claim and are considered in Chapter 26.
The Bunkers Convention 180
24.150 This Convention is not yet in force and there are no p rovisions in English
law regarding it. It provides for liability in respect of loss or damage caused outside a
ship resulting from the escape of bunker oil and the costs of preventative measures.
Nothing in the Convention affects the right of the shipowner to limit liability under the
1976 Convention or other regime and it confers a like right to limit on insurers.
24.151 Actions may only be brought in the courts of the State where damage
occurred. Save for fraud or lack of notice to the defendant a judgmen t not subject to
further review is to be recognised in any State party. 181 The HNS Convention (Schedule
5A of the 1995 Act) 182
24.152 Provisions of this Convention may be given effect in United Kingdom laws
by Order in Council whether or not the Convention has come into force (see Chapter 2).
Unlike the implementation of the Oil Pollution Conventions, through translation into
statutory provisions the HNS Convention will presumably become part of United
Kingdom laws directly. Limitation of liability in respe ct of owners and the HNS Fund is
based on the same principles as the Oil Pollution Convention.
(i) Owners
24.153 The entitlement to limit and limits are set out in Article 9 with similar
criteria for breaking the limit, i.e. where it is proved that the dam age resulted from "the
personal act or omission of the owner, committed with the intent to cause such damage
or recklessly and with knowledge that such damage would probably result". 183
24.154 For the purpose of benefiting from the limitation the owner mus t constitute
a limitation fund (by deposit or guarantee) with a court of a State party in which action
is brought or, if none is brought, in which it may be brought. Subject to priority of
claims in respect of death or personal injury as specified in Artic le 11 the fund is to be
distributed in proportions to the claim. The insurer is entitled to constitute a fund even if
the owner is not entitled to limitation.
24.155 It is provided in Article 10.
Where the owner after an incident has constituted a fund in accordance with article
9 and is entitled to limit liability:
(a) no person having a claim for damage arising out of that incident shall be
entitled to exercise any right against any other assets of the owner in respect of such
claim; and
(b) the court or other competent authority of any State Party shall order the release
of any ship or other property belonging to the owner which has been arrested in respect
of a claim for damage arising out of that incident, and shall similarly release any bail or
other security furnished to avoid such arrest.
2. The foregoing shall, however, only apply if the claimant has access to the courts
administering the fund and the fund is actually available in respect of the claim.
24.156 While the wording is not focused on any finding by the court, it would seem
that the entitlement to limit follows from the liability claimant failing to show that there
is no entitlement. So the problem of distribution of the fund creating the need to amend
the statutory oil pollution provision (see above) should not arise.
Jurisdiction and Stay of Proceedings
24.157 As with the Oil Pollution Convention, jurisdiction over substantive claims
is focused on the state in the territory in which the damage occurred. There are
provisions for the consideration of claims for preventative measures taken elsewhere
and where damage has been caused outside the territory of any state ( see Chapter 2). It
may be therefore that more than one state would have jurisdiction.
24.158 The limitation fund may be constituted only in a court competent to
consider the substantive claim, and once constituted the courts in that state have
exclusive jurisdiction. 184 There is therefore no scope for any debate as to an
appropriate forum in any limitation claim. To benefit from the limits a fund must be
established and once established in an appropriate state, that court has jurisdiction and
subject to access of the claimant to the fund any security in any State party must be
released. The principle of focusing of the place of the fund appears to have come to
fruition.
The Applicable Law
24.159 There is no doubt that as with the Oil Pollution Conventions the provisions
are mandatory. Any agreement as to a law applicable will have no effect.
RECOGNITION OF FOREIGN JUDGMENTS
24.160 A final judgment of a court with Convention jurisdiction enforceable in the
state of origin is enforceable in any State party save where the judgment was obtained
by fraud or the defendant did not have reasonable notice and opportunity to present the
case. 185
(ii) The HNS fund, jurisdiction, applicable law and recognition of judgments
24.161 The court having jurisdiction over the claim against the owner or guarantor
has jurisdiction over claims against the fund. Once an action is brought that course has
exclusive jurisdiction (see Chapter 2). There is therefore no room for the stay of
proceedings. It is clear that the provisions are mandatory.
24.162 The Fund is to be given a right to intervene and provided it has had an
opportunity to do so any judgment is binding on the Fund. The judgment is enforceable
in each State party. 186 (c) Effect of EC Regulation 44/2001 and the Brussels and
Lugano Conventions
24.163 As indicated in Chapter 5 these regimes will affect oil pollution and HNS
claims only insofar as matters relating to jurisdiction and judgments are not covered by
the appropriate Convention. 3. The Pilotage Act 1987
24.164 The liability of an authorised pilot, the harbour authority or the person
supplying pilotage services (the agent) and employing a pilot for loss or damage caused
upon any one distinct occasion by an act or omission by a pilot employed by it may be
limited. The liability of the pilot is not to exceed £1,000 together with the cost of
pilotage charge and that of the authority and the agent £1,000 multiplied by the number
of authorised pilots employed by the authority or agent respectively at the date the loss
or damage occurs. 187
24.165 In any action against the authority or agent the limit may be broken only by
the type of personal act or omission which would be grounds for breakin g the limit in
respect of global limitation claimed under the Merchant Shipping Act 1995, Part VII,
i.e. "personal act or omission committed with the intent to cause such loss or recklessly
and with knowledge that such loss would probably result". 188
24.166 Nothing in the limitation provision relating to harbour authorities or agent
"shall affect any liability that may be limited" or "is excluded" under Part VII of the
1995 Act. This somewhat curious wording presumably means that the power to limit
under the Pilotage Act does not affect the power to limit under the 1995 Act. As a
consequence, as with carriage claims, limitation works within the global limitation
scheme and not in substitution for it. Claiming limitation
24.167 As in other contexts of limited liability there is no reason why limitation
may not be pleaded as a defence or be the basis of an action for a declaration. In
addition section 22(6) of the Pilotage Act 1987 provides:
"Where any proceedings are taken against any person (‘the defe ndant’) for any act
or omission in respect of which liability is limited as provided by this section and other
claims are or appear likely to be made in respect of the same act or omission, the court
in which the proceedings are taken may —
(a) determine the amount of the liability;
(b) upon payment by the defendant of that amount into court, distribute that amount
rateably amongst the claimants;
(c) stay, or in Scotland sist, any proceedings pending in any other court in relation
to the same matter;
(d) proceed in such manner and subject to such requirements as the court thinks just
—
(i) as to making interested persons parties to the proceedings;
(ii) as to the exclusion of any claimants whose claims are not made within a certain
time;
(iii)as to requiring security from the defendant;
(iv) as to payment of any costs."
24.168 The right to claim limitation is therefore restricted to liability proceedings.
The court is given broad powers in those proceedings as to procedure, discretio n as to
security and ensuring that all interested persons are before the court. While this is a
limitation right to be exercised in relation to a specific type of claim (as with the plea of
limitation in a carriage claim) it covers all liability arising ou t of a distinct occasion (as
with oil pollution claims).
24.169 There is express power to stay other proceedings but no power to reopen
the distribution once made. However, the discretion in respect of the proceedings is
wide enough to ensure the defensibility of any distribution through a notice to potential
claimants and general procedural control. Jurisdiction, applicable law and recognition
of judgments
24.170 A court may consider limitation only in liability proceedings. There are,
therefore, no issues going solely to jurisdiction, applicable law or recognition of
judgments in respect of limitation. It is highly unlikely that a claim liability for which
may be limited would be made in a court other than that part of the United Kingd om
where the incident occurred. Should that be so, however, the applicable law as to
limitation will be that of the forum even if, conceivably, that applying to the substantive
claim is another law. 4. Dock and Canal Owners, Harbour and Conservancy
Authorities
24.171 Subject to the criteria for breaking limits under the Merchant Shipping Act
1995, Part VII, the liability of dock and canal owners, harbour and conservancy
authorities is limited in respect of loss or damage caused to a vessel or anything on
board arising upon one distinct occasion. 189 The limit is ascertained by applying to the
ship the calculation of the 1976 Convention applying to claims other than loss of life or
personal injury as applied in the United Kingdom ( see supra). The provisions relating
to constitution and distribution of the Limitation Fund in the 1976 Convention and the
statutory provisions relevant thereto having effect in connection with the Convention
apply. So no lien can affect the distribution ( see supra).
24.172 Limitation may be claimed as a defence, counterclaim or by declaration.
The applicability of the Limitation Fund provisions of the 1976 Convention necessarily
equates limitation proceedings with those of global limitation. The limitation claim wi ll
therefore lie under the Admiralty Practice Direction of the CPR with the same
procedure as for global limitation. The issues of jurisdiction, governing law and
recognition of judgments are identical to those of global limitation.
1. For early English statutes see Responsibility of Shipowners Act 1733; Merchant
Shipping Act 1854. For a robust defence of limitation of liability as a principle see
Steel [1995] LMCLQ 71. Limitation of liability is accepted (i) in areas other than
maritime incidents where the resulting damage is likely to be crippling (as e.g. that
resulting from a nuclear incident) and (ii) in transport by air, road and sea. As to air see
Warsaw Convention 1929 (as amended); as to road the Convention on the International
Carriage of Goods by Road (the CMR); as to rail the Convention Concerning
International Carriage by Rail 1980 (COTIF). For comparison in the context of
problems of uniform law see Clarke [1999] LMCLQ 36.
2. And when in force claims under the provisions of the Merchant Shipping Act
1995 in respect of damage or loss resulting from the carriage of hazardous and noxious
substances by sea (as to which see Chapters 2, 3).
3. So the establishing of a fund in a Conv ention State will confer no power on the
courts of that State in relation to security given in a non Convention State ( see The ICL
Vikraman (fn. 48).
4. See in respect of global limitation Caltex Singapore Ltd v. B.P. Shipping Ltd
[1996] 1 Lloyd’s Rep. 286. But not so as to exclude a stay of proceedings. See 24.87.
5. See e.g. Bouygues Offshore SA v. Caspian Shipping [1998] 2 Lloyd’s Rep 461
(C.A.); The Herceg Novi and Ming Galaxy [1998] 2 Lloyd’s Rep 454 (C.A.) and infra.
6. Now a "limitation claim" see infra.
7. Fn. 5.
8. Rix J. examined in detail nineteenth century authorities seeing such as might be
contrary to the conclusion as no longer relevant given jurisdictional development and
categorising any modern rule as one of practice and not law —to be approached as at
most a presumption of liability before limitation.
9. The provision that a ship should be released once a limitation fund is available
means that there must be a liability finding and limita tion decree but not that the finding
necessarily has to precede the decree ( ibid.).
10.[1978] 2 Lloyd’s Rep. 520.
11.[1906] A.C. 489.
12.Merchant Shipping Act 1995, Sch. 7, Part II, para. 8(2).
13.See Nishen Kisen Kaishan Ltd v. Canadian National Railway Co. [1982] 1
F.C. 530. For imposition of conditions on a stay as a balancing act see The Sea Cap XII
[1995] LMLN 415 (F.C.).
14.Lacking a jurisdiction agreement an English decree is not of itself a ground for
an anti suit injunction against continuing foreign liability proceedings. See The Western
Regent, fn. 60.
15.Merchant Shipping Act 1995, s.186 applied to hovercraft by Hovercraft (Civil
Liability) Order 1986 (SI 1986/1305 amended by 1987/1835).
16.As to which and provisions of the HNS Convention 1996 by the latter
superseding the Limitation Convention 1976 in respect of claims within it see infra. As
to the Convention and its effect see generally (ed.) Gaskell Limitation of Shipowners
Liability—the New Law (1986).
17.Primarily raising the limits (see below).
18.See the Hague-Visby Rules, Art. 6; Hamburg Rules, Art. 5 (in force but United
Kingdom not a party). The limits may be increased by agreement.
19.Article 7. The limit may be raised by national law in respect of carriers who
are nationals (Art. 7(2)). As to the raising of limits in respect of carriers whose
principal place of business is in the UK see Sch. 6, Part II, para. 4, SI 1998/2917.
20.Hague-Visby Rules, Art. VIII. So a jurisdiction clause opting for a state in
which the global limitation limits are lower than the particular carriage of goods limits
is valid—the rules providing an exception ( The Benarty [1984] 2 Lloyd’s Rep. 244).
As to general prohibition on opting out through jurisdiction and choice of law clauses
see below.
21.Carriage of Goods by Sea Act 1971.
22.Merchant Shipping Act 1995, s.183, Sch. 6.
23.Enacted by the Carriage of Goods by Road Act 1965. As to the applicability of
the CMR to sea carriage see Chapter 3. For discussion in the US of the rela tionship
between COGSA and the CMR see e.g. The OOCL Bravery [2000] 1 Lloyd’s Rep. 394.
24.Limitation in all these Conventions is based on the "package" or (in the
Hamburg Rules as with the Hague-Visby) the weight of cargo. The packages will be the
contents of containers if shown in the bill of lading. As to the Hague Rules see The
River Gurara [1998] 1 Lloyd’s Rep. 225 (C.A.). As to Hague -Visby Rules see Art. IV,
Rule 5(c). As to the Hamburg Rules see Art. 6(2). See further Wilson Carriage of
Goods by Sea (5th edn) 2004 at pp. 196 –205, 221–223. The limit is calculated "per
package" or weight of cargo whichever is the higher (Art. IV, Rule 5(a)).
25. Merchant Shipping Act 1995, Sch. 7, Part II, para. 9 (re -enacting Merchant
Shipping Act 1979, Sch. 4, Part II, para. 9).
26. As to exclusion of liability of an owner of a British ship for property damaged
or lost through fire or valuable articles lost through dishonest conduct see Merchant
Shipping Act 1995, s.186 and fn. 8.
27. See Merchant Shipping Act, Sch. 5A.
28. 61 PD 10.18.
29. A counterclaim for a general decree requires the permission of the court
(61.11(21)). As an example of limitation as a counterclaim see The Radiant [1958] 2
Lloyd’s Rep. 596.
30. But not, apparently, a negative declaration of non -entitlement to prevent a
limitation claimant selecting the forum (see e.g. Bouygues Offshore SA v. Caspian
Shipping Co. [1998] 2 Lloyd’s Rep. 461 (C.A.); [1997] 2 Lloyd’s Rep. 507 (H.C.) and
cases cited and infra.
31. The Giacinto Motta [1977] 2 Lloyd’s Rep. 221 and cases there discussed. See
infra.
32. The rules governing issues connected with a party to the 1976 Convention and
a party to the 1957 Convention depend on national law (including the conflict of laws).
33. Merchant Shipping (Convention on Limitation of Liability for Maritime
Claims) (Amendment) Order 1998 (SI 1998/1258) as amended by SI 2004/1273
amending the text of the Convention set out in Merchant Shipping Act, Sch. 7;
Hovercraft (Convention on Limitation of Liability for Maritime Claims) (Amendment)
Order 1998 (SI 1998/1257 amending Hovercraft (Civil Liability) Order 1986, Art 8 (SI
1986/1305). As to the effect of the amendments see infra.
34. Through the International Conventions on Civil Liability for Oil Pollution
Damage 1992; International Convention on the Establishment of an International Fund
for Compensation for Oil Pollution Damage 1992. The Conventions (originally of 1969
and 1971) were enacted into English law through the Merchant Shipping (Oil Pollution)
Act 1971 and the Merchant Shipping Act 1974 both as amended by the Merchant
Shipping Act 1988. As from 1 January 199 6 they are enacted through the Merchant
Shipping Act 1995, Part VI. See Chapters 2, 4. The framework is also to include the
International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (not
yet in force). As to the Convention and the EU see Chapter 4.
35. See e.g. The Wladyslaw Lokietek [1978] 2 Lloyd’s Rep. 520 (fn. 10).
36. Applied to hovercraft by SI 1986/1305 as amended by SI 1987/1835.
37. Article 6(5). Incorporated into United Kingdom laws by the Merchant Shipping
(Tonnage) Regulations 1997 (SI 1997/15 10) (initially by SI 1982/841).
38. Articles 1, 9. The Convention does not apply to air cushion vehicles or floating
platforms constructed for exploiting the sea bed or subsoil (Art. 15(5)). The Convention
is not to be applied to ships engaged in drilling when there is higher limit of liability for
such ships (Art. 15(4)).
39. Articles 9, 11.
40. Article 1(7).
41. Article 13(2).
42. Article 13(1).
43. See generally Art. 15.
44. When a higher limit is adopted or the state has become a party to a Convention
regulating the system of liability in respect of such ships (Art. 15(4)).
45. Article 18(1).
46. Through amendments to Arts 15, 18. The HNS Convention supersedes
provisions of any Convention in conflict with it (Art. 42). As to the HNS Convention
see Chapter 2 and infra.
47. Art. 8.
48. The ICL Vikraman [2004] 1 Lloyd’s Rep. 21 (Colman J).
49. See below.
50. 1979 Act, s.17; 1995 Act, s.185(1). As to the exclusi on of liability of
owners of British ships for property loss or damage caused by fire or loss of or
damage to precious articles through dishonest conduct see s.18 and supra. 1979 Act,
s.18; 1995 Act, s.186. For its application to hovercraft see SI 1986/130 5 as
amended by SI 1987/1835.
51. 1979 Act, s.17(4); SI 1986/1052. The Convention itself does not contain any
provision limiting its application to acts subsequent to coming into force and State
parties have not all made express statutory provisions. However, the tendency is
understandably to construe it in that way. See (e.g.) (Australia) The Lorna Doon [1993]
LMLN 367; (Greece) Court of First Instance Piraeus, No. 2505/199 1; (France) Cour
d’Appel d’Aix en Provence, 9 June.
52. Section 185(3).
53. Section 185(4), implementing Art. 3(e) of the Convention ( see 24.60).
54. Schedule 7, Part II, para. 4.
55. The limits of liability applicable to hovercraft were raised on the coming into
force of the Protocol in respect of the UK (SI 1998/1257).
56. Amending the Merchant Shipping Act 1995, Sch. 7 in accordance with
s.1 85(2A) of the Act (inserted by Merchant Shipping and Maritime Security Act 1997, r.
15(1)). Revision of the Protocol may similarly be implemented (s.185(2B)–(2E)). The
draft of any Order in Council under s.185(2A) or (2B) must be approved by a resolution
of each House of Parliament (s.185(5)).
57. SI 1998/1258, 2004/1273.
58. The ICL Vikraman [2004] 1 Lloyd’s Rep. 21.
59. Berlingieri [1993] LMCLQ 433.
60. [2005] EWCA 985 The Denise [2004] EWHC 3305.
61. [2004] 1 Lloyd’s Rep. 21.
62. Article 1.
63. In English law including a slot charterer. See The Tychy [1999] 2 Lloyd’s
11.
Rep.
64. As to the application to BIMCO Towhire Conditions see Smit International
(Deutschland GmbH v. Mobius [2001] 2 All E.R. (Comm.) 265.
65. CMA CGM SA v. Classica Shipping Co. Ltd [2004] 1 All E.R. (Comm.) 865
(C.A.) disapproving of the view expressed at firs t instance and in The Aegean Sea
[1998] 2 Lloyd’s Rep. 39 that a charterer could limit only when acting as a shipowner —
holding this approach would cause difficulties in assessing the role in particular
contexts (as e.g. storage of cargo).
66. Article 2.
67. The requirement of "direct connection with the operation of the ship" refers to
(i) damage to another ship or cargo ( CMA CGM SA v. Classica Shipping Co. Ltd (fn.
65) (see 24–46A) (ii) the injury or loss of life not to the claim. So a claim for
misrepresentation is not as such outside the Convention ( Bouygues Offshore SA v.
Caspian Shipping Co. [1998] 2 Lloyd’s Rep. 461 (C.A.)).
68. Held (obiter) in The Aegean Sea (fn. 65) (i) not to include loss of the ship in a
claim by owners against charterers—as the operation of the ship must cause the loss, in
the case of a defendant salvor the relevant ship being the salvor’s ship; (ii) to include
loss of bunkers with the loss of the ship, that occurring on the ordering the ship to the
port at which the loss occurred; (iii) to include claims for pollution caused by escape of
oil (in the circumstances not excluded by Art. 3(b) —as to which see infra).
Conclusions not affected by the difference in approach in CMA CGM SA (fn. 65).
69. Held (obiter) in The Aegean Sea (fn. 65) that a claim for the loss of freight
was for infringement of contractual rights.
70. Claims under (d) are not subject to limitation to the extent they relate to
remuneration under a contract with the person liable (2.2) and claims under (d) a nd (e)
may be excluded (Art. 18(1)). The UK has made (d) dependent on the establishment of a
fund to compensate harbour authorities for the reduction of amounts recoverable ( see
above).
71. The Darfur [2004] 2 Lloyds Rep 469. So there was no power to limit in
respect of stevedoring expenses on necessary discharge of the cargo, transhipment,
insurance against deviation because of a collision, hire of a substitute vessel, loss of
liner service, cost of management time.
72. Or a charterer’s claim to be similarly indemnified (see The Darfur fn. 71).
73. As to the power to exclude claims under the HNS Convention see supra.
74. Held (obiter) in The Aegean Sea (fn. 65) not to exclude a claim for indemnity
for the amount paid to salvors for recovery of cargo.
75. Held (obiter) in The Aegean Sea (fn. 65) to exclude only claims actually
brought under or "can be brought under" the CLC and not therefore excluding before an
English court a pollution claim which un der the Civil Liability Convention could only
be brought outside the UK.
76. (e) is reflected in English law by s.185(4) of the 1995 Act excepting from
limitation in relation to a person on board the ship or employed "under a contract of
service governed by the law of any part of the United Kingdom" considered in Todd v.
11.
Williams [2002] 2 Lloyd’s Rep. 293 in relation to share fishermen.
78. Gaskell in The New Law (fn. 15) at p. 52. As to Art. 6 see infra—"the
limitation amounts".
79. The Robert Whitmore [2004] 2 Lloyd’s Rep. (NSW Supreme Court);
Thompson v. Masterton [2004] 1 Lloyd’s Rep. 304 (Guernsey) and see Meeson 8 -105.
80. See The MSC Rosa M [2000] 2 Lloyd’s Rep. 399; The Leerort [2001] 2
Lloyd’s Rep. 291. Even this high burden may be met —see Margolle v. Delta Maritime
Co. Ltd [2003] 1 Lloyd’s Rep. 203.
81. Articles 6, 7.
82. There is provision in monetary units measured in gold for states not members
of the International Monetary Fund (Art. 8(2)).
83. A State party may provide that claims in respect of damage to harbour works,
basins, waterways and aids to navigation may take priority over claims other than for
loss of life or personal injury (Art. 6(3)). As to the U nited Kingdom see above.
84. See Merchant Shipping (Convention on Limitation of Liability for Maritime
Claims) (Amendment) Order 2004 (SI 2004/1273 amending the 1998 Order of identical
title (SI 1998/1258)).
85. Articles 11–14. As to English practice see 24.75.
86. Article 14.
87. See supra. Any suggestion that "proceedings" refers to limitation claims seems
contrary to the wording linking the proceedings to claims subject to limitation.
88. Article 13(1).
89. Article 13(2).
90. Availability not being dependent on a decree. See fn. 99.
91. The ICL Vikraman [2004] 1 Lloyd’s Rep. 21.
92. Merchant Shipping Act 1894, s.504 —a provision limited to cases in which
there were several claimants (see The Penelope II [1980] 2 Lloyd’s Rep. 17).
93. Per Brandon L.J. in The Penelope II (fn. 92) requiring "special circumstances"
so as to remove the operation of "the principle"; The Mekhanik Egrafor (No. 2) [1988]
1 Lloyd’s Rep. 33.
94. See Caspian Basin Specialised Emergency Salvage Administration v.
Bouygues Offshore SA [1997] 2 Lloyd’s Rep. 507 affd C.A. [1998] 2 Lloyd’s Rep. 461
and supra.
95. See e.g. The New Law, op. cit. Chapter II (Brice). Despite some change of
wording the Convention did not remove the right of shipowners to limit liability for
claims by cargo owners for stevedoring and transhipment costs following a fire and
consequent salvage (The Breydon Merchant [1992] 1 Lloyd’s Rep. 373).
96. RSC Ord. 75, r. 1.
97. 6 1.1(1). But the content changed to reflect the wide scope of court management
powers. So the procedure is not specified in the same detail. With the concurrence of
the Treasury the Secretary of State may prescribe the rate of interest (Merchant Shipping
Act 1995, Sch. 7, para. 8(1)). As to which see Merchant Shipping (Liability of
Shipowners and others) (Rate of Interest) Orders 1999 and 2004 (SI 1999/1922,
2004/931).
98. See also 61.11 and Forms ADM 15, 16.
99. Brought into force by Ord. 75, r. 6A—following the suggestions of Sheen J. in
The Bowbelle [1990] 1 Lloyd’s Rep. 532. The Bowbelle demonstrates the applicability
of the Convention in the United Kingdom even if the circumstances are entirely
domestic. Now see 61.7(2)(b). This procedure indicates that the fund is "actually
available" within the 1976 Convention ( The ICL Vikraman [2004] 1 Lloyd’s Rep. 21).
100. The Capitan San Luis [1993] 2 Lloyd’s Rep. 573. As to the exclusion of
costs from limitation see 24.61.
101. Supreme Court Act 1981, s.20(3)(c) CPR 61.11. The claim form is in Form
ADM 15 and accompanied by declaration of facts relied on verified by a statement of
truth and stating persons whom the claimant knows have claims other than named
defendants (61.11(2), (3)) 61 PD 10.1(1), (2).
102. CPR 61.11(4).
103. Ibid., 61.11(6)(7).
104. A note in Civil Procedure (2D-74) implies that issue of the claim form may be
acknowledged—but there is no rule providing for it.
105. 6 1 . 1 1 ( 7 ).
106. Ibid., 61.11(8).
107. 61 PD 10.7 The Registrar may grant a decree, order service of a defence
disclosure by the claimant or give directions for the future conduct of the proceedings.
As to the courts’ wide powers see CPR 3.
108. CPR 6 1.11(15), 61 PD 10.15 subject to th e ability to explain an inability to
comply 61 PD 10.16. If a claim is not commenced within 75 days of establishment of
the fund, the fund will lapse and monies repaid 61.11(20). A new fund may be
established (61 PD 10.9). As to calculation of the amount a nd consequences of
deficiency or excess see 10.10, 10.11.
109. The Limitation Convention, Art. 11 (Merchant Shipping Act 1995, Sch. 7, Part
1).
110. Merchant Shipping Act 1995, Sch. 7, Part 11, para. 9.
111. See The Crathie [1897] P. 178; The Kronprinz Olav [1921] P. 52; (1920) 5
Ll. L. Rep. 203; The Giacinto Motta [1977] 2 Lloyd’s Rep. 221. See also 24.29 and
infra.
112. There is a specific power to stay liability proceedings on the granting of a
general decree (61.11(13)). See further 24.82.
113. Supreme Court Act 1981, s.22. CPR 61.11(5).
114. See Art. 2 and Chapter 2.
115. CPR 61.11(5) See Chapter 9.
116. As to the issue and its resolution see Chapter 9.
117. See fn. 99.
118. No such principle in English law, Kerr L.J. in The Volvox Hollandia [1989]
E.C.C. 16, para. 36, the majority of the C.A. being of the view that the first instance
judge had given undue weight to the desirability; Bouygues Offshore SA v. Caspian
Shipping Co. [1998] 2 Lloyd’s Rep. 461 (C.A.) [1996] 1 Llo yd’s Rep. 286 (Rix J.).
119.See The Happy Fellow [1998] 1 Lloyd’s Rep. 13.
120.Compare the approach of the C.A. in Bouygues (fn. 1) in relation to stay of
liability and stay of limitation.
121.See e.g. Caltex Singapore Ltd v. BP Shipping Ltd [1996] 1 Lloyd’s Rep.
286.
122.CPR 61.11(9)(10).
123. Ibid., 61(14).
124. Ibid., 61(13)—the power to order a fund indicating that establishment of a
fund is not required for jurisdiction ( The Western Regent—see fn. 60). See also
61.11(18), (19).
125.As provided for in liability proceedings by the Collision (Civil Jurisdiction)
Convention 1952, Art. 2—enacted into English law by the Supreme Court Act 1981,
s.22(5).
126.And hence mandatory as the Hague -Visby Rules were held to be in The
Morviken [1983] 1 Lloyd’s Rep. 1.
127.Conference Proceedings, pp. 142, 247.
128.See The El Amria [1981] 2 Lloyd’s Rep. 119 (C.A.) approved and followed
in Insurance Company “Ingosstrakh” v. Latvian Shipping Co. [2000] I.L.Pr. 164
(C.A.). See Chapter 12.
129. Bouygues Offshore CA v. Caspian Shipping Co. [1998] 2 Lloyd’s Rep. 461
an undertaking being given that if liability was limited there would be enforcement only
against the fund established in England ( see infra).
130. The Herceg Novi and Ming Galaxy [1998] 2 Lloyd’s Rep. 454. See infra.
131.See The Vishva Abha [1990] 2 Lloyd’s Rep. 312; Aldington Shipping v.
Bradstock Shipping [1988] 1 Lloyd’s Rep. 475; Adhiguna Meranti [1988] 1 Lloyd’s
Rep. 384 (overruled [1994] 3 All E.R. 749).
132.[1988] 1 Lloyd’ s Rep. 495.
133.See e.g. the weight given in refusal of an injunction prohibiting South African
proceedings to the undertaking to proceed only against the limitation fund established in
England (Bouygues, fn. 135).
134.[1989] E.C.C. 16 (C.A.).
135.[1998] 2 Lloyd’s Rep. 461; [1997] 2 Lloyd’s Rep. 507.
136. See infra. As to anti suit injunction see fn. 14.
137. See e.g. The Bowbelle [1990] 1 Lloyd’s Rep. 532. Once the fund is
constituted other security must or may be released ( see supra).
138.An attempt by the United States delegation to introduce such a provision at the
Conference considering the Convention met with little support (Conference
Proceedings, pp. 325–326).
139. The constitution of more than one fund will call for a Spiliada type
consideration of the factors relevant to any stay of proceedings in one state ( see supra).
140.As to whether arrest of a vessel of itself may constitute the bringing of
liability proceedings see supra.
141. See para. 24.87 The "Herceg Novi" and "Ming Galaxy" (C.A.) [1998] 2
Lloyd’s Rep. 454.
142. As does Art. 6a of the Brussels and Lugano Conventions.
143. Merchant Shipping Act 1995, Sch. 7, Part 11, para. 10.
144. Maersk Olie and Gas A/S v. Fioma M. de Haan Case C–39/02 ECJ 14
October 2004. So one is to establish liability, the other to limit damages and they are
based on different legal rules. As to multiplicity of proceedings under a European
regime see Chapter 12.
145. Ibid. paras. 40–42—there being no cause in Maersk to examine the matter as
the limitation proceedings had ended.
146. [1998] 1 Lloyd’s Rep. 13.
147. See e.g. The Giancinto Motta [1977] 2 Lloyd’s Rep. 221; The Falstria
[1988] 1 Lloyd’s Rep. 495.
148. The law of the flag is a further possibility —marred, however, by the
possibility of a flag of convenience and complication of two flags where a vessel is
demise chartered (see Chapter 26).
149. For a discussion of the US approach as compared to the approach in
Canadian, English and French law see Tetley [1992] 23 JMLC 588.
150. See e.g. The M/4 Swibon [1985] AMC 722; The Arctic Explorer [1984]
AMC 2413.
151. [1996] 1 Lloyd’s Rep. 286.
152. Berlingieri [1993] LMCLQ 433.
153. [1998] 2 Lloyd’s Rep. 454.
154. And apparently supported by Rix J. in the Bouygues case (fn. 118)—a matter
not referred to by the C.A. in that case.
155. It should be noted that by the Convention national law governs the constitution
and distribution of a limitation fund (Art. 14). The r ight against a fund of an insurer or
other person who has paid a claim is specifically limited to the extent to which
subrogation is permitted under national law (Art. 12(3)).
156. As e.g. under the HNS Convention ( see 24.139).
157. [1978] 2 Lloyd’ s Rep. 520.
158. See The Crathie [1897] P. 178; The Kronprinz Olav [1921] P. 52, (1920) 5
Ll. L. Rep. 203.
159. [1977] 2 Lloyd’s Rep. 221.
160. For the text see Conference Proceedings, pp. 93 –96.
161. Later amended (see Conference Proceedings, p. 192) to provide that "if
necessary" a contracting State should ensure that a judgment given in another contracting
State should be enforceable against a limitation fund in the first state.
162. In the Bouygues case (fn. 118) Rix J. declined to consider the eff ect in one
state of a limitation decree in another (whether or not a 1976 Convention State) and
counsel declined to submit that an English decree would operate as res judicata or
issue an estoppel in South Africa.
163. Maersk Olie (2004) (ECJ) (fn. 144).
164. As to the transition from the 1969 Convention to the 1992 Convention and the
legislative provisions see Chapter 2.
165. See fn. 164.
166. See CPR 61.1(e).
167. As amended in relation to applications to limit made af ter 17 July 1997 by the
Merchant Shipping and Maritime Security Act 1997 to enable distribution of the fund
save where there is a finding that there is no entitlement to limit and reserving the right
to remove excess on such later finding. See further below.
168. I.e. liability for oil pollution by tankers.
169. The limits as increased by SI 2003/2559.
171. Ibid., s.165(3).
172. A claim must be brought within such time as the court directs ( ibid.,
s.158(4)).
173. Liability to any excess remains if non -entitlement to limit is later found
(s. 1 58(2A)).
174. Merchant Shipping Act 1995, ss.159, 160.
175. Ibid., s.169.
176. Ibid., s.166(4).
177. Section 175. For discussion of the Fund and Protocol 2003 providi ng for a
Supplementary Compensation Fund (not yet in force) see Chapter 2. Apart from the cost
of and damage caused by preventative measures the Fund may be exonerated from
liability if it proves that the pollution damage resulted from an act or omission of the
claimant against it intending to cause or negligently causing the damage, ss.175(8), (10).
178. Section 176. The provisions may be amended by statutory order to give effect
to any Convention amendment (s.4A(5)).
179. Ibid., s.176(3).
180. The International Convention on Civil Liability for Bunker Oil Pollution
Damage 2001. For discussion and Decision of the EU Council permitting and urging
Member States to become parties see Chapter 6.
182. Inserted by Merchant Shipping and Maritime Security Act 1997, s.14(2), Sch.
3. These enabling provisions came into force on 17 July 1997 (SI 1997/1539). As to the
Convention regime see Chapter 2.
183. Article 9(1)(2). There may be subrogation for compensation paid or to be
paid (Art. 9(5), (6), (7)).
184. Article 38(5). As to jurisdiction see Chapter 2.
185. Article 40(1). Formalities are for the enforcing state but the merits may not be
reopened (Art. 40(2)).
186. See Arts 39, 40(3).
187. Pilotage Act 1987, s.22(1) –(3).
188. See s.22(3)(4).
189. Merchant Shipping Act 1995, s.191 re -enacting the Merchant Shipping
(Liability of Shipowners and Others) Act 1900, s.2, as amended by Merchant Shipping
Act 1979, s.19, Sch. 5, Part 1. Where the defendant is a dock owner the entitlement to
limit depends not on the capacity in which the work is done but on the fact that it is done
in the dock (The Ruapehu (1927) 27 Ll. L. Rep. 385 (H.L.))—and that means where the
damage is caused (Mason v. Uxbridge Boat Centre [1980] 2 Lloyd’s Rep. 592). For
discussion see The New Law, op. cit. at pp. 57–60 (Gaskell). The power to limit
liability applies to damage or loss resulting from directions by a harbour master to
control dangerous vessels under the Dangerous Vessels Act 1985 (see s.2 as amended
by the Merchant Shipping Act 1995, Sch. 13, para. 74).
Chapter 25
Remedies Determinative of Substantive Issues 1. Finality of Litigation—The

Effect of a Judgment or Arbitration Award
25.1 A critical feature of many legal systems is the prohibition of relitigation of a
cause of action or issue upon which judgment has been pronounced in a case in which
the person seeking relitigation was a party. In English law the principle is implemented
generally through res judicata but appears on occasion as cause of action or issue
estoppel or simply abuse of process. 1 Essentially connected with it is the concept of
merger of a cause of action into a judgment so that the judgment becomes the sole source
of the remedy. There may well be a critical distinction between merger and estopp el in
that merger destroys the cause of action while estoppel can be countered by a contrary
estoppel. So the party relying on issue or cause of action estoppel may itself be
estopped by conduct from that reliance —as, for example, where the parties have agreed
that the action should have limited effect on any further action. 2
25.2 The focus of any prohibition on relitigation and of merger into judgment is the
issue on which judgment has been given and the parties bo und by it. Connected to this
essential requirement is the question of the extent to which either principle applies when
a cause of action may be pursued in different ways with different consequences. This
raises the question of the nature of and relationsh ip between an action in personam and
an action in rem.
It has long been established that a claim in personam or in rem merges into the
equivalent judgment (discussed, in respect of foreign judgments, in Chapter 27), but the
long held view was that a judgment in one was no bar to an action in the other. The
rationale of that principle may be qualified now it is accepted that a claim in rem no
less than a claim in personam is against a defendant. In The Indian Grace (No. 2) 3 the
House of Lords seemed to accept the non -merger rule in respect of an action in rem in a
judgment in personam to be limited to maritime liens and stated simply that it should not
be extended. However, the rule has not been so restricted 4 and, even if it were, surely
requires an explanation for continuing with it.
25.3 As has been held in a number of cases it may be that the parties to an action in
rem are not identical to an action in personam, for any person having an interest in the
property that is the target of the action in rem is a potential party. Insofar as the person
interested is a purchaser from the person liable in personam there would be an identity
of parties only if the in personam claim is proprietary. But the fact that a person may
suffer loss as the result of the action does not necessarily make that person a party, and
whether the parties are the same will depend on the identity of the actual parties. It will
be on the common identity that the relevance of any issue estoppel or cause of action
estoppel will depend. It may be that the presence of different parties in one cause of
action makes the principles non-applicable.
25.4 Even where the parties are identical it may be that the claims are so "different
in character" that the merger doctrine should be excluded. As between actions in rem
and in personam the assets available for execution of a judgment differ just as the
preference of any claim relating to them differs. 5 On the other hand merger could be
subject to the ability of a claimant to bring such a claim given the differing jurisdictional
rules. The present law appears entirely and regrettably uncertain, but, given the policy
that a foreign enforceable judgment will prevent a claim in England subject to estoppel
whether in personam or in rem on the basis of identity of the parties it may be difficult
to defend a different rule in relation to English judgments.
25.5 Adapting the principles to arbitration awards it is arguable that as a result
save in maritime lien cases judgment on an award will preclude any action not only in
personam but in rem. But it may be said that on the authorities not overruled in The
Indian Grace while the original cause of action in personam would be merged in the
award but a cause of action in rem not merged. 6 As a consequence an award or
judgment on an award would not prevent further suit in rem in respect of any unsatisfied
part of the claim. 7 But whether this approach is maintained depends on the rule
regarding judgments. 2. Remedies Generally and in Admiralty Remedies and
grounds
25.6 There are two primary aspects relating to the remedy:
the remedy awarded by a court or arbitral tribunal; and
the enforcement of the judgment. 1. The Remedy Awarded The general pattern
The available remedies
25.7 The remedies available in litigation are those established by statute, rule or
(as initially the freezing injunction) created judicially ( see "Types of remedies" infra).
An arbitral tribunal may award such remedies as the parties agree 8 and unless otherwise
agreed any of a number of remedies statutorily specified ( see infra). Jurisdiction over
remedies
25.8 Once the court exercises jurisdiction on the merits it has jurisdiction in
respect of any applicable remedy. 9 Whether, however, any order is made to do or
refrain from doing an act outside England will depend on the nature of the remedy and
connections between England and the elements of the dispute —particularly the
defendant. Normally the enforcement of a judgment on the merits out of England will
require recognition and enforcement through the courts of the state of enforcement.
However, where a defendant is within the jurisdiction of the English court there is
power to make an order in relation to acts outside En gland. Whether or not the power is
exercised is a matter for discretion bearing in mind "the self -imposed limitation" that "a
state should refrain from demanding obedience to its sovereign authority on the part of
foreigners in respect of their conduct outside the jurisdiction" and the necessary
intervention in another state through any order to act or not to act in that state and
whether or not any order is directly enforceable. 10
25.9 As is discussed in Chapters 27 and 28 an English court will enforce a foreign
judgment in accordance with established criteria. Any remedy awarded must, however,
be recognised in English law. 11
Acts outside England
25.10 Questions of remedies directed at acts outside England have usually arisen
in the context of interim relief but the principles there asserted would seem not to be
restricted to such relief. 12 Considerations of intervention in other states and the risk of
any order being ignored are posed in an acute form by the power to order non -initiation
of or participation in foreign proceedings (the anti suit injunction). As this in practice is
not an interim measure 13 it is considered in this chapter in the context of substantive
remedies. The anti suit injunction
25.11 This remedy ex hypothesi relates to acts outside the jurisdiction of the
English courts, and requires as a first and critical step that the defendant to any
application is subject to that jurisdiction. 14 It provides the party who obtains it no
substantive remedy on the merits but is aimed at ensuring that a route to decision is, in
English law terms, blocked to the opponent.
25.12 The court traditionally justified the power and its exercise on the groun d that
it was directed in personam at a party. It did not therefore interfere with the jurisdiction
of the foreign court. So the principle of comity was at least on the surface maintained.
Judicial attitudes have changed, so that on the one hand the indire ct interference has
been recognised. 15
25.13 With the regular use of such injunctions however came a return to the initial
analysis. So, it is said, it is the choice of parties to invoke a foreign court which is the
target of the injunction. But that, with respect, is disingenuous for a party is entitled to
seek the exercise of the jurisdiction, it is then for the foreign cour t to decide on the
matter. The English view 16 was rejected by the European Court ( see 25.21) but
continues to be applied outside the European jurisdiction regimes. 17
25.14 While its objective is to focus proceedings in the English courts the use of
the injunction can simply result in multiple proceedings. This is particularly so where
the opting out of the foreign jurisdiction is prohibited by its law —a factor considered in
the English courts, but not seen as establishing any reason not to grant the injunct ion. 18
However much the courts express the hope that it will not be seen as interference with
foreign proceedings it is not surprising that, as the European court has said, that is
precisely the view taken by the foreign court.
25.15 In essence the injunction is a logical extension of the traditional English
common law approach to jurisdiction based largely on power over a person present in
the country. 19 Until the relatively recent development of forum non conveniens there
was little to control the assertion of judicial power based largely on as it was (and is,
outside Conventions) slim contact between the defendant and England.
The European jurisdiction regimes
25.16 The European jurisdiction regimes introduce both the gene ral principle of
substantive contacts and, in respect of multiple proceedings, obligations on courts to
decline to exercise the jurisdiction. So there is a focus on the duty of a court where there
are proceedings elsewhere rather than on any attempt by the first court to halt
proceedings in the second. But the English courts still saw the matter as protection of its
jurisdiction and in terms of the regimes this inevitably risked increased conflict and
questions of enforceability of any injunction in respect of and by the foreign court. 20 The
European Court has declared the anti -suit injunction inconsistent with the Brussels
Convention structure insofar as any issue within it is concerned. 21
(a) Outside the transnational jurisdiction regimes
(i) Exclusive jurisdiction and arbitration agreements
25.17 The English courts have jurisdiction under the Supreme Court Act section 37
to grant anti suit injunctions, as with other injunctions. This power applies in relation
both to litigation and arbitration proceedings in England. 22 Proceedings entered into in
breach of an agreement valid according to the applicable law to litigate in England or to
arbitrate are seen as attracting discrete principles. For the initial contract not to be
upheld requires the person initiating those proceedings to show "strong cause or
reasons" why the injunction should not be granted. 23 Comity, it is said, has little part to
play. There have been some rather robust assertions of the desirability of prohibiting the
parties without waiting for the decision of the foreign court or even the need to take any
view of the foreign court into account. 24 These, however, are balanced by other
statements emphasising the need for the applicant to establish the agreement and the
right to enforce it to a high degree of probability 25 and where the issue is a jurisdiction
agreement, the application of principles identical to those on consideration by an
English court of upholding an agreement to sue in a foreign court. 26
(ii) Other cases
25.18 Where there is no such agreement the issue was originally seen as an
application of forum non conveniens and the balancing of relevant factors to the foreign
proceedings. In respect of cases in which the issue was an alternative forum to England
the criteria is that formerly applied to a stay of English proceedings —that England
being the natural forum foreign proceedings would be vexatious or oppressive. 27 This
more stringent requirement stemmed from the difference in an English court cons idering
its own powers and in endeavouring to influence the exercise of the powers of a foreign
court. While other factors are not always identically specified a common element is that
the respondent must not be unjustly deprived of advantages in the forei gn forum28—
perhaps difficult to construe or weigh as presumably such advantage is often the very
reason for the suit. Where the application is to restrain proceedings in a single forum
(no question of an alternative arising), 29 the criteria (together with England being the
natural forum) may have become simply unconsciability or the ends of justice. 30 In these
circumstances comity plays a large part in the exercise of the discretion to issue the
injunction. It would not be consistent with that principle for an English court to grant a
restraining injunction in respect of one set of foreign proceedings against another. 31
25.19 A non-exclusive jurisdiction clause provides a startpoint for considering
whether foreign proceedings are vexatious and oppressive. In essence it all depends in
the wording of the clause—if it means that the commencement of English proceedings
prohibited foreign proceedings then the issue is no different to the exclusive
jurisdiction. If on the other hand parallel proceedings are not excluded it will be
difficult to show that the foreign proceedings are vexatious and oppressive. 32 Without
such a clause that may be shown by concurrent proceedings if England is the national
forum.33
Qualifications on (i) and (ii)
25.20 In both categories a prerequisite for an injunction is lack of delay in
applying for it, 34 any voluntary submission to the foreign court, the undesirability of two
sets of proceedings 35 and the relevance of a multi party dispute. Even where there is an
exclusive English jurisdiction agreement, related proceedings to which it does not apply
will be a weighty factor in whether the injunction should be granted. 36
(b) Within a European jurisdiction regime
25.21 In Turner v. Grovit37 (a case concerned essentially with abuse of process)
the European court rejected the view expressed in the House of Lords that (i) such an
injunction did not interfere with the jurisdiction of the other court and (ii) such a
restraining order was effective to "achieve or aid" the Convention aim of limiting the
risk of irreconcilable judgments. In the Court’s view restraint on a party backed by a
penalty was interference "incompatible with the system of the Convention". The
injunction had the effect of limiting the Convention jurisdictional rules and
consideration as to whether to grant it as abuse of process involved assessment of the
appropriateness of the proceedings in another Convention state. Further, the injunction
did not aid the Convention o bjectives as (a) it rendered ineffective the provisions
relating to multiplicity of proceedings, and (b) did not remove the risk of irreconcilable
judgments.
25.22 The approach of the European Court emphasises, with respect, the continued
lack of appreciation in English law of the position of national courts within a system of
allocation of jurisdiction. As the Court said in an earlier case, that system is necessarily
based on mutual trust—and indeed respect for the allocation. The anti suit injunction
seems to be in breach of the fundamental principles underlying the Convention and, even
more so, Regulation 44/2001.
An arbitration agreement
25.23 There remains the issue of arbitration agreements. The current view of
English law is that all arbitration matters fall outside the European jurisdiction regimes.
This extends to whether there is a valid arbitration agreement and hence whether the
Convention applies. As a consequence the English courts view the grant of an anti suit
injunction as within the power of national courts. 38
25.24 This conclusion is advanced on the basis that the principal focus of the
injunction (and any declaration) is arbitration (the critical test of the scope of the
exception). But this seems to ignore once again the allocation of jurisdiction within the
Convention. That allocation must include the power in each State to decide if the
jurisdiction exists. It would seem just as great an interference with the European regime
as in other contexts. It is asserting a power of a court to decide that the Convention does
not apply and then to interfere with the power of another court allocated jurisdiction
under the Convention to decide if it indeed has that jurisdiction. Once again there is the
risk of irreconcilable judgments and it would seem difficult to justify this approach in
the light of the principles set out in Turner v. Grovit.
Arbitration—the New York Convention
25.25 Under the Convention each contracting state has an obligation to stay
proceedings brought contrary to an arbitration agreement and to recognise a Convention
award (see Chapters 12, 27). There is, however, no reference to any power of the courts
of one State to intervene in or affect the jurisdiction of another. "Arbitration" is wholly
outside the European regimes, it is said, because it is the subject of the New York
Convention. But precisely the same reasons apply in relation to anti suit injunc tions as
led the European Court to declare them inconsistent with the regimes —the question of
staying proceedings and hence the issue of the validity of the arbitration agreement is a
matter for the court to which the power is allocated. 39 Protection of Trading Interests
Act 1980
25.26 The Act was enacted to counter the extraterritorial effects of the anti -trust
laws of the United States. It has its origins in concern about the effect of such laws on
British shipping interests, 40 but is worded quite generally. It empowers the Secretary of
State to prohibit compliance with any requirement or prohibition imposed through a
foreign law of international trade damaging or threatening United Kingdom trading
interests, and applying outside the foreign state to a per son carrying on business in the
United Kingdom. 41 The statute is directly relevant to the control of foreign judicial
proceedings in that in the cause of national interest 42 the Secretary of State may prohibit
compliance with any direction by a court to pr oduce a commercial document not in the
country of that court or to provide commercial information. 43 Failure to comply with
either type of prohibition is a criminal offence. 44
25.27 The statute is also relevant to control of foreign proceedi ngs in rendering
unenforceable foreign judgments either for multiple damages or based on any rule of
law that the Secretary of State declares concerned with anti -trust matters and therefore
unenforceable (see Chapter 27). The unenforceability of any judgme nt in the United
Kingdom could be a factor in urging prohibition or participation in proceedings leading
to it—particularly in the light of the strong policy expressed in the Act in regard to such
proceedings. However, it must be borne in mind that the pol icy is directed to the effect
of foreign rules of law extraterritorially and not the rules as such —and any argument in
relation to participation in foreign proceedings in reliance on this policy would need to
link the participation to the extraterritorial effect. Remedies “in personam” and “in
rem” in Admiralty proceedings
25.28 The types of remedy and modes of enforcement in actions in personam in
Admiralty are with some exceptions simply adaptations of those types and modes
available generally. The Supreme Court Act 1981 encompasses in a general provision
(section 49) the section of the Supreme Court of Judicature (Consolidation) Act 1925
(section 43) enacting that all remedies are available in all divisions of the Supreme
Court.
25.29 Some types of claims are recognised only in Admiralty and it follows that
the appropriate remedy is peculiar to Admiralty. 45 So, in a salvage claim, the salvage
award and, in general average contribution claim, the contribution ordered find no
direct counterpart in other commercial claims. However, in essence, the orders are for
money payments based on a particular claim, and the peculiarity of Admiralty goes to
the claim rather than the remedy. Remedies in actions “in rem”
25.30 It is in respect of the Admiralty action in rem that rules peculiar to
Admiralty primarily apply. It may be argued that just as with salvage and general
average the claim and not the remedy is peculiar to Admiralty so in the context of the
action in rem it is procedure and not the remedy which is unique. In 1972 in The
Conoco Britannia 46 Brandon J. intimated that, in his view, the statutory provisions
empowering each branch of the High Court to consider the remedies available in every
branch meant that in an action in rem, first, an equitable remedy could be awarded and,
secondly, that it was arguable that a money judgment exceeding the value of the res
could be awarded.
25.31 Such an approach necessarily implies that the power to award remedies
overrides any distinction in concept between actions in personam and actions in rem
(as to which see infra). Whether or not remedies in personam are available in actions
in rem the action in rem carries with it its own unique remedy —the judicial sale. The
ability to bring an action in rem creates the ability to arrest the property (usually a ship)
in respect of which the action is brought. Once under arrest, the claimant may ask that
the property be sold and, subject to priority quest ions, the proceeds made available for
claimants in rem—i.e. all those who issue in rem claim forms prior to the distribution
of the fund. Types of remedies Actions “in personam”
25.32 A major division, when considering the enforceability of judgments and
awards, is that between money judgments and orders focusing on acts other than
payment of money. Property claimed may be ordered to be sold ( see 25.54).
(i) Payment of money
GROUNDS OF THE REMEDY
25.33 The category of "money judgments" should not be allowed to conceal
distinctions between grounds of money judgments —compensation for loss or penalty for
conduct (damages), proprietary relief, repayment of debt, reward for services rendered.
A liquidated sum of money may be due because of agreed compensation, because the
action is to enforce a debt as the result of proprietary relief or the consequence of
particular statutory provisions. An unliquidated sum of money may be due not only as
compensation for loss but as a reward for services rendered or as a contribution to a
loss suffered directly by others. Apart from any application of unjust enrichment the
award for services rendered is not developed in English law except for salvage in
maritime law, and the principle of contribution towards loss applies generally only in
respect of those jointly liable for loss. In maritime law, however, it applies so as to
enforce contribution from those who have not suffered loss to those who have —a
sacrifice of some for all (general average). Any distinction between maritime and other
claims lies in their substantive basis rather than in the remedies available. Once decide
on liability and the remedy follows.
COSTS AS DAMAGES
25.34 Where proceedings are brought in breach of a jurisdiction clause reasonable
expenditure in proceedings to strike out the action may be recovered as damages. 47 In so
concluding the Court of Appeal commented (i) it was not contrary to international
comity even if in the foreign court each party normally bears its own costs, (ii) there
was no question of res judicata as the application in respect of damages for breach of
contract was not the same as costs at issue in earlier proceedings, (iii) in the type of
case before the court the rule that costs should be a matter only for the earlier
proceedings does not apply. The court left to the future the resolution of cases in which
only part of the costs incurred were originally recovered.
25.35 Once admit that an English court can restrain a party from taking or
continuing foreign proceedings and the availability of damages follows. The framework
for those damages is the breach of contract, but it is in substance an issue as to costs.
Ignoring the rule of the foreign court as to costs takes the intervention created by the
restraint one step further. 48
JUDGMENTS IN FOREIGN CURRENCY
25.36 After some judicial skirmishing it was established in 1975 by the House of
Lords that English courts may give judgments in foreign currency.49 In 1973 the courts
had recognised that arbitrators sitting in England had power to make awards in foreign
currency.50 In establishing that judgments could be given in foreign currency the House
of Lords also held that, if there was need to enforce the judgment, the amount awarded
should be converted into sterling at the date of leave to levy execution or enforce an
award.51 Judgment should be given in the currency indicated by the contract or lac king
that, that in "which most truly expresses [the] loss". 52
INTEREST ON DEBTS AND DAMAGES
25.37 Prior to the union of the court structure in 1875 the power to award interest
varied as between courts of common law, equity and Admiralty. By the Judgments A ct
1838 decrees and orders of courts of equity were made to have the effect of judgments
at common law. Every judgment debt was to carry interest at a statutory rate from the
date of judgment, the rate being amended in 1993. 53 By a further amendment in 1998 the
date from which interest is to run is that specified by rules of court, such rules may
confer on the court the power to disallow all or part of any interest payable. 54 A claim
for interest must be included in the Particulars of Claim. 55 By the Private International
Law (Miscellaneous Provisions) Act 1995, section 1 as from 1 November 1996 the rate
of interest where a judgment is expressed in foreign currency is to be declared by the
court.
25.38 A provision in the Law Reform (Miscellaneous Provisions) Act 1934
conferring the power to order the payment of interest between cause of action and
judgment56 failed to take account of late payments of money due prior to the judgment
and made no reference to arbitration. The Administration of Justice Act 1982 57
provided for power in the High Court to award interest on late payments, adding section
35A to the Supreme Court Act 1981:
"(1) Subject to rules of court, in proceedings (whenever instituted) before the High
Court for the recovery of a debt or damages there may be included in any sum for which
judgment is given simple interest, at such rate as the court thinks fit or as rules of court
may provide, on all or any part of the debt or damages in respect o f which judgment is
given, or payment is made before judgment, for all or any part of the period between the
date when the cause of action arose and—
(a) in the case of any sum paid before judgment, the date of the payment; and
(b) in the case for which judgment is given, the date of the judgment."
25.39 Further, where the debt is paid in full after proceedings are instituted but
before judgment, the court may order interest to be paid in respect of the period between
the date of the debt arising and th e date of payment. 58 The parties before an arbitral
tribunal may agree on the powers of the tribunal regarding interest. Unless otherwise
agreed, the tribunal has wide discretion as to the type of interest, dates relevant to its
applicability and rates up to and subsequent to the date of the award. 59 It is for the party
seeking interest whether pre or post award to ensure that that is included in the award.
On an application for leave to enforce an award as a judgment the court ha s no power to
award post award interest if it is not included —as, under the Arbitration Act 1996,
section 66(2), the judgment must be entered in terms of the award. 60
(ii) Orders other than for the payment of money
PROPRIETARY RELIEF
25.40 Such relief is claimed on the basis of entitlement —that the defendant has or
claims the use or control of an asset which the plaintiff claims as owner or holder of a
lesser proprietary interest. It may be that as a remedy the plaintiff is entitled only to
damages as compensation. In some cases, however, the claim is essentially to funds on
the basis of ownership and in others, delivery up of a tangible asset which would be
difficult to resist—such as, for example, where a shipowner claims possession from a
charterer after the ending of the charter or there has been a fraudulent sale. In the latter
context a consequential and necessary remedy where registration is applicable, is
rectification of register. 61
25.41 Tracing. The legal and equitable remedy of "tracing" permits a plaintiff to
follow a proprietary interest he claims in an asset through to other assets (including
money) substituted for it. 62 Care must be taken to distinguish between the right to follow
the interest in the hands of the person original ly having it and the right to follow it as
against others. Tracing is essentially a remedy to overcome loss of identity —whether it
can be used against parties other than the "original" defendant depends on whether the
claim enables it to be enforced against a third party (i.e. is proprietary).
ENFORCEMENT OF CONTRACTS AND OTHER ACTS
25.42 Specific performance is available as a discretionary remedy and has been
used to enforce a contract for the sale of a ship. 63 It must be recalled that ships and other
chattels are "good" under the Sale of Goods Act 1979, and, it may be argued, that the
availability of the remedy does not mean that the claimant is a "beneficial owne" —as it
would in the case of land. 64 Mandatory injunctions may be granted to enforce other acts,
but not directly decree performance of a contract for services such as a time charter. 65
However injunctive relief may be granted even if the practical effect is to compel
performance. So where there was a commercial arrangement not involving personal
services (as a time charter) an interim injunction would lie to prevent withdrawal of
vessel from a pool available for such a charter. 66
25.43 This approach is difficult to fit in any but a technical way with the principle
that specific performance will not lie in respect of a contract of service. It would seem
that despite that declaration it all depends on the nature of the contract and possibly the
need to make performance the indirect r esult. It would seem probable that the next move
is to jettison the latter requirement.
TERMINATION OF CONTRACTS—RESCISSION AND RECOGNITION OF
REPUDIATION
25.44 A party to a contract is entitled to rescind a contract on the basis of an
element external to the contract rendering it voidable (as, for example, fraud or other
misrepresentation or, in some instances, mistake). The effect is to place the parties in
the position they were in prior to the contract and a court order may be requir ed to
accomplish this. A party to a contract is entitled to treat the contract as "repudiated" if
the other party is so in breach that the contract is deemed terminated. Such a breach may
arise because of breach of a specific term stating that breach will have that effect or
because it goes to the root of the contract. The effect is to relieve the innocent party (or
in some cases both parties) from future obligation. 67 There is no court order required in
the exercise of this remedy, issues before the court turning simply on whether treating
the contract as repudiated was justified.
ENFORCEMENT OF ARBITRAL AGREEMENTS AND AWARDS
25.45 A party to an arbitration agreement may obtain a stay of legal proceedings
contrary to it unless the agreement is null and void , inoperative or incapable of being
performed or, when in force, in the case of a domestic agreement, there are other
grounds for not requiring the parties to abide by the agreement. 68
25.46 An arbitral award may be enforced by an action in personam on the award
(i.e. the contract to comply with the award) or by permission to enforce the award as a
judgment under the Arbitration Act 1996. 69 The two differ only in the means, there being
no need under the Arbitration Act for an action on the award. In b oth there is a need to
establish the arbitration agreement and the award. On challenge to the award on grounds
of substantive jurisdiction, serious irregularity or point of law a court may confirm, vary
or set aside the award or, save as regards jurisdiction, remit the award in whole or in
part.70
(iii)Prohibition or restraint of acts —injunctions
25.47 The injunction is available in its interim or final form both as a substantive
remedy and as an aid to execution of a judgment. 71
(iv) Compensatory orders
25.48 Many judgments and orders are compensatory —compensating the claimant
for loss or damage. In the main these will be money judgments.
(v) Declaratory orders
25.49 A court may make a binding declaration of right either as an interim or final
remedy.72 The development of this type of relief in commercial disputes "should not be
constrained by artificial limits wrongly related to jurisdiction". It is a matter of
discretion.73
Negative declarations
25.50 English courts for long approached negative declarations (i.e. declarations
of nonliability) with scepticism. Where there was a foreign element in the case they
were seen as in the main tactical with often a high degree of forum shopping involved. It
was suggested that the jurisdiction to grant them required the threat of proceedings. It is,
however, now accepted that there is jurisdiction to grant them in both transnational and
domestic disputes. 74 Further it has been recognised that there is "little if an y difference"
between the positive and negative declarations. 75
25.51 The granting of both a positive and a negative declaration is a matter of
discretion—the issue is first whether it would serve "a useful purpose" and secondly if
so whether it should be granted. In exercising that discretion the court should bear in
mind the reversal of the roles of the parties and possible injustice to an unwilling
defendant. 76 On the other hand where a substantive claimant is "temporising" it is a
proper course to take to force the issue. 77 Subject to the party against whom the
declaration is sought being properly joined 78 the question in a transnational dispute,
where there are relevant foreign proceedings outside the European jurisdiction regimes,
is in truth an aspect of forum conveniens in the context of the remedy sought. 79 In cases
within such a regime the jurisdiction will depend on compliance with the regime ( see
Chapter12). Actions “in rem”
25.52 Ex hypothesi an action in rem relates to a thing—a thing which may be a
chattel or security lodged in its stead. Where it is a chattel it is available for all claims
in rem and the issue of priority is necessarily raised. Where bail is lodged with the
court or security is provided on the basis of a contractual arrangement between plaintiff
and defendant there is no question of priority —there is simply a sum of money available
to satisfy the claim. Where security other than a res is provided, the "thing" remains the
defendant’s asset and is, therefore, also liab le in an action in personam—and the
question of priority of claim again becomes relevant. And it must be recalled that in
many cases actions in personam or in rem are concurrent proceedings in relation to the
same claim.
25.53 Apart from priority the primary remedial questions relevant to an action in
rem are (i) the availability of the sale by the court; and (ii) the restriction (if any) on
remedies in personam.
Sale by the court
(A) GENERAL POWERS
25.54 In any action a court has power to order the sale of property the subject of a
claim in personam or in rem which is perishable, likely to deteriorate or in relation to
which there is good reason for sale. 80 In an action in personam such a sale of itself
would be subject to encumbrances existing prior to the sale.
(B) ASREGARDSACLAIM“INREM”25.55TheAdmiraltyCourtmayordertheappraisementandsaleofproperty81at
any stage of the proceedings in rem on the application of a party to the action. 82, 83 An
order for sale may have added to it an order specifying the period after which priorities
will be determined and publication of the details of sale and the opportunity to lodge
claims within the period. 84
25.56 A sale pending suit is normally ordered o n the grounds that retention of the
property will cause the plaintiff’s security to diminish if for no other reason than the
mounting costs of arrest. It is unusual that such an order is made in a defended case
where alternative security will be provided, but it may be made where it would be
unreasonable to keep property (particularly a ship) under arrest for a long period. 85
However, where (i) the plaintiff would be in no better position except that arrest costs
would cease; and (ii) a sale after release would bring a greater price, the ship may be
released from arrest rather than sold. 86
25.57 A notice of an application concerning the sale of any property under arrest
must be served on all parties to the claim an d all persons who have requested cautions
against release.87 The order will be issued to the Admiralty Marshal that the property to
be sold "for the highest price that can be obtained" but not for less than the certified
value without an order of court or in such other way as may be ordered. 88 The
applicant’s solicitors will be required to undertake to pay all fees and expenses. Once
an order is made it is contempt of court for the owner to attempt to sell the ship. 89 To
allow such a course would make the Marshal’s task impossible. 90
25.58 The Marshal may sell the property in a foreign currency. The proceeds,
whether in a foreign currency or in sterling, will be paid into court. 91 The effect of a
sale of property under arrest in an action in rem is to give a title free of encumbrances
to the purchaser. 92 The practicality of such an order depends on mutual recognition
between states. 93
Remedies "in personam"
25.59 Since the decision in The Dictator in 1892 the English rule is clear in that
participation in the proceedings of any kind will mean that henceforth the action is one
of personam as well as rem (see Chapter 9). As a consequence all remedies in
personam and in rem are available.
25.60 If in an action in rem no person appears as a defendant the weight of English
authority supports the proposition that there can be no liability against the defendant
other than that connected with the asset in relation to which the claim in rem is made.
The liability is limited to the thing and matters concerning it. 94 In 1907, in The Burns,95the
Court of Appeal emphasised that "no personal liability can be established" ag ainst
owners who do not appear and this is not affected by the later recognition that, as with a
claim in personam, a claim in rem is against a defendant. The point as to remedy goes
not to whether any person is liable but the focus of the remedy on the re levant asset.
This focus is reflected not necessarily in any remedy which by definition is " in rem" but
in the limitation of remedies to the asset. It follows that the remedies are limited in kind
and amount to the res.
25.61 However, in 1972 in The Conoco Britannia,96 Brandon J. suggested that if
the issue of liability for an action greater than the value of the thing arose a court would
have to look carefully "at the form of judgments in Admiralty actions in rem in the High
Court and the relevance and app licability of the present rules of the Supreme Court
relating to money judgments". He suggested that perhaps the provisions of the Supreme
Court of Judicature (Consolidation) Act 1925 and the Administration of Justice Act
1956 would lead to the disappearan ce of any distinction between "what can be done
when a defendant appears and what can be done when he does not appear". However,
with respect, neither practice as to forms of judgment nor statutory provisions relating to
money judgments can overturn the cl ear focus of the claim in rem on a particular asset
of the defendant.
(A) DAMAGES
25.62 Although a claim in rem lies against a defendant there is no basis for the
award of damages other than those made available through sale of the property or a fund
representing the property. Given the nature of the action in rem that limitation follows
unless that defendant creates jurisdiction in personam by acknowledging service of a
claim form without contesting jurisdiction. To move to such a position is to move to an
acceptance that seizure of assets gives jurisdiction generally over a defendant. And that,
surely, is contrary to accepted English jurisdictional principles.
(B) OTHER REMEDIES
25.63 Specific performance or injunction. In The Conoco Britannia, Brandon J.
held that a claim for specific performance could be made in an action in rem, and that
any question of whether it should be made against a "defendant" who has not appe ared
was a matter of discretion and not jurisdiction. The view was based on statutory
provisions conferring the power to consider all claims (legal or equitable) in one
proceeding. But, with respect, this assumes the validity of the argument that there is no
difference between an action in personam and an action in rem—the question at issue. It
is the same question as that raised in the context of damages.
25.64 The principle that equitable remedies in personam require jurisdiction in
personam was applied in 1973 in the Canadian Federal Court in Antares Shipping
Corpn v. The ship "Capricorn"97 and in 1980 by Sheen J. in the High Court in The Stolt
Filia.98 So long as jurisdiction in personam is not based on seizure or presen ce of
property it is difficult to see how liability in personam can follow from an action in
rem only. 25.65 That is not to say, however, that any remedy apart from sale is restricted
to damages. The key is the focus on the property and in that context there may be
proprietary relief (see supra) including a declaration and, where appropriate,
rectification of the register. 99 2. Enforcement of Judgments of English Courts
25.66 A judgment for the payment of money or delivery of goods will order the
defendant to pay or render up the goods. Interest runs in respect of a judgment debt from
the moment of judgment when damages are assessed ( see above). A judgment for an
order other than the payment of mon ey will simply order that an act be done or be not
done. Judgment for money payment
25.67 A judgment for the payment of money may be enforced through one of the
following:
(i) A writ of fieri facias authorises an enforcement officer to seize and sell the
debtor’s goods to satisfy the judgment, although the execution of this may be stayed. 100
The effect of such a sale of property in execution of a judgment does not provide a
purchaser with any better title than that held by the debtor. A purchaser with not ice of
the issue of the writ will take subject to any claim reflected in it once the writ is
delivered to the officer. 101
(ii) Through third party debt orders the court may order any person in the
jurisdiction indebted to the judgment debtor to pay the judgment creditor. On application
a judge may make an interim order imposing an obligation to retain a specified amount
until leaving. A final order may be made at the hearing requiring payment. 102
(iii) An order for foreclosure or sale. A mortgage may be enforced by an order for
foreclosure, for sale or appointment of a receiver. An equitable charge may be enforced
by an order for sale or appointment of a receiver.
(iv)A charging order103 on a judgment debtor’s interest in land, securities or funds
in court will create an equitable charge enforceable against a trustee in bankruptcy or
liquidator of a company—such charge not being a direct method of enforceability but
providing security for the claim. An order will be enforced by the remedy applicable to
an equitable charge, i.e. by obtaining an order for sale.
(v) Appointment of a receiver by way of equitable execution .104 As a method of
execution the appointment of a receiver is seen as available lacking any other method. It
amounts to a charge over personal property but only if the receiver is directed to pay the
money to or hold it for the execution creditor. 105
(vi) An order for sequestration of property or committal of or fine imposed on
the defendant for contempt of court may result from failure to comply with an order of
the court.106
(vii) Proceedings may be taken in bankruptcy or winding up of a company.
(viii) A freezing injunction may be granted to ensure the non -dissipation of assets
pending execution of a judgment, 107 with the sanctions set out in (vi) for failure to
comply with the injunction.
(ix) According to the Civil Procedure Rules by a judgment creditor in rem, arrest
of maritime property. 108 Judgment other than for money payment
25.68 A judgment for an order other than the payment of money may be enforced:
(a) through a writ of delivery up of goods or money or where the order is to
deliver within a specified time and delivery is not made, a writ of sequestration or
order of committal;109
(b) in the case of an order to do or refrain from doing an act through a writ of
sequestration or order of committal. 110
(c) According to the Civil Procedure Rules by a judgment creditor in rem, arrest of
maritime property. Enforcement of arbitral awards made in England
25.69 Awards will be enforced either as a judgment on an action on an award or
after application to enforce in the same man ner as a judgment. 111
1. So it may be abuse of process (but not res judicata) not to join all persons in an
action who were later said to be liable and sued. In such circumstances it is for the
party claiming abuse of process to establish it and for the c ourt to balance the interests
of the parties in that context (Bradford and Bingley Building Soc. v. Seddon [1999] 1
W.L.R. 1482).
2. The Indian Grace [1993] A.C. 410; [1993] 1 All E.R. 998 ( see Chapter 27). An
issue estoppel may arise when there has been no argument on the merits if a case has
been put followed by submission to an order —the issue could have been litigated. See
SCF Finance Co. Ltd v. Masri (No. 3) [1987] 1 All E.R. 194.
3. [1997] 1 Lloyd’s Rep. 1.
4. See The Rena K [1979] 1 All E.R. 397—the point being raised subsequently to
the Indian Grace in The Bumbesti [1999] 2 Lloyd’s Rep. 481 at 489 in relation to a
non-maritime lien claim.
5. Or the claimant has a twofold security. See The Irina Zharkikh [2001] 2 Lloyd’s
Rep. 319 (N2) (and the analysis of authorities in the judgment) —holding an action in
rem available after an unsatisfied arbitral award, applying the Rena K (fn. 4).
6. See The Rena K [1979] 1 All E.R. 397 at p. 416; The Stella Nova [1981]
Com.L.R. 200.
7. The Stella Nova (fn. 6). As to whether an action in rem may be brought on the
award compare The Saint Anna [1983] 1 Lloyd’s Rep. 637, with The Bumbesti [1999]
2 Lloyd’s Rep. 481—discussed in Chapter 2. See also fn. 4.
8. But not contrary to public policy if the award is to be enforced. See Arbitration
Act 1996, ss.81(1)(c), 103(3).
9. One of the grounds on which a claim form may be served out of the jurisdiction
with permission is to enforce a judgment or arbitral award ( CPR 6.20(9)) and the nature
of the judgment and contacts of the party with England are relevant to the grant of
permission and any enforcement (see infra). As to enforce an arbitration award see also
CPR 62.16, 18. As to enforcement of judgments under the Brussels and Lugano
Conventions see Chapter 28. As to costs see The Ikarian Reefer [2000] 1 All E.R. 37.
10. See Mackinnon v. Donaldson Lufkin Corpn [1986] 1 All E.R. 653 (the issue
being disclosure of documents by a bank not a party to the proceedings). In Canada
Trust v. Stolzenberg [1997] 4 All E.R. 983 (C.A.) the court stressed the power to order
production of such documents from a third party bank to decide if there is jurisdiction
over the substantive claim. But whether it would be exercised depends on an assessment
of the various relevant factors referred to in Mackinnon. See also Derby v. Weldon (No.
2) [1989] 1 All E.R. 1002. As to a somewhat modified concern over intervention se e
the anti suit injunction (see 25.11).
11. See Phrantzes v. Argenti [1960] 2 Q.B. 19.
12. As to interim relief in litigation see Chapters 14–16, in arbitration proceedings
see Chapter 13.
13. See e.g. Sokana v. Freyre [1994] 1 Lloyd’s Rep. 57. So the court requires the
case for the injunction to be established to a high degree of probability. See Bankers
Trust Co. v. Pt Jakarta International Hotels [1999] 2 Lloyd’s Rep. 910, and see
25.14n.
14. See e.g. Amoco (UK) Exploration Co . v. British American Offshore Ltd
[1999] 2 Lloyd’s Rep. 772.
15. But the rationale remains.
16. As expressed by Lord Hobhouse in Turner v. Grovit [2002] 1 W.L.R. 107
(H.L.).
17. At para. 26. See O.T. Africa Line v. Magic Sportswear Corpn. [2005] EWCA
Civ 710.
18. O.T. Africa (fn. 2) in which Canadian and English proceedings were
concurrently extant at the date of the C.A. decision.
19. See Airbus Industrie Gie v. Patel [1998] 1 Lloyd’s Rep. 631 (H.L.) per Lord
Goff (describing the common law world as a "jungle of separate, broadly based
jurisdictions); Donoghue v. Armco [2000] 1 Lloyd’s Rep. 579 (C.A.), para. 56 per
Brooke L.J. (the right of English courts "to protect their own jurisdiction" where there is
a jurisdiction agreement) but note the view of H.L. that in this case outweighed by other
proceedings (see fn. 27). There must be jurisdiction over the defendants to the
injunction claim—through service in or out of England. See e.g. Amoco (UK)
Exploration Co. v. British American Offshore Ltd [1999] 2 Lloyd’s Rep. 772; Credit
Suisse First Boston (Europe) Ltd v. MLC (Bermuda) Ltd [1999] 1 Lloyd’s Rep. 767.
20. The English courts seeing the power as based on abuse of process. See Turner
v. Grovit [1999] 3 All E.R. 616 (C.A.). But see the contrast drawn by Lord Goff
between the Convention regimes and the common law in Airbus Industrie Gie v. Patel
(fn. 19). The relationship of an anti suit proceedings to the suit in which there is a
challenge to jurisdiction in the suit was referred to the ECJ ( Toepfer International
GmbH v. Société Cargill France [1998] 1 Lloyd's Rep. 379 (C.A.), but the case was
settled. It finally reached the ECJ in Turner v. Grovit (fn. 37).
21. See 25.
22. So in relation to arbitrations it is irrelevant that there is no power to grant final
injunctions under the Arbitration Act 1996 (see Welex A. G. v. Rosa Maritime Ltd
[2003] EWCA Civ 938, para. 40).
23. Donohue v. Armco (C.A.) fn. 19 paras 24, 45 (H.L.) (fn. 36), paras 35, 39. But
there may still be a reference to the criterion of "vexatious and oppressive" relevant to
non-jurisdiction agreement cases (as to which see infra). See Society of Lloyd's v.
White, The Times, 14 April 2000. It may be the sole relief sought (Youell, fn. 79). But it
must be shown to a high degree of probability that the proceedings are in breach of
contract—it is not sufficient that it is simply arguable ( American International
Specialty Lines Insurance Co v. Abbot Laboratories [2003] 1 Lloyd's Rep. 267.
24. See in particular The Angelic Grace [1995] 1 Lloyd's Rep. 87 at p. 96 per
Millett L.J. but see Credit Suisse Fides Trust SA v. Cuoghi [1998] Q.B. 818 at 827 per
Millett L.J.—comity requires mutual respect for the territorial integrity of jurisdiction.
Cp. Gilkes v. Venizelos [2000] I.L.Pr. 487.
25. Bankers Trust v. Pt Jakarta International Hotels [1999] 2 Lloyd’s Rep. 910.
26. See Donohue v. Armco (fn. 19), para. 60 per Brooke L.J.; Akai Pty Ltd v.
People’s Insurance Ltd [1998] 1 Lloyd’s Rep. 90. But choice of England as a neutral
forum will render factors such as location of witnesses or convenience of parties of
little relevance (ibid.).
27. Involving consideration of whether England is the natural forum (see Airbus
Industrie v. Patel (fn. 19 Société Nationale Industielle Aerospatiale v. Lee Kim Jak
[1987] A.C. 871 and Chapter 12). For an application of the principles see e.g. Simon
Engineering Plc v. Butte Mining Plc [1997] I.L.Pr. 599 (refusing an injunction taking
into account foreign court proceedings); FMC Corpn v. Russell 1999 SLT 99 (Court of
Session), Deaville Aeroflot Russian International Airlines [1997] 2 Lloyd’s Rep. 67
(construction of Warsaw Convention jurisdiction provisions). And see Through
Transport Mutual Assurance Assoc. v. New India Assurance Assoc. [2004] EWCA Civ
1598 paras 93–97 (considering the principle of Turner v. Grovit (fn. 37) in the context
of a non-EU State.
28. See e.g. Royal Bank of Canada (fn. 32) at paras 9, 10. In a converse situation
the Singapore High Court has issued an injunction to restrain a liability claimant seeking
to preempt a limitation claimant from opting from the choice o f jurisdiction to claim
limitation The Ever Glory, 27 June 2003.
29. As in Midland Bank Plc v. Laker Airways Ltd [1986] W.B. 689. There must be
an interest in the English courts to deal with such cases, i.e. is the natural forum for the
consideration of the issue, see Shell International Petroleum Ltd v. Coral Oil Co. Ltd
[1999] 2 Lloyd’s Rep. 606 (issuing an injunction in respect of proceedings in Lebanon
on the ground that they were bound to fail —"in the true sense purely vexatious").
30. Comity lying at the heart of the matter. See the analysis of Lord Goff in Airbus
Industrie v. Patel (fn. 15). See also the summary of the principles in Glencore
International v. Exter Shipping [2002] 2 All E.R. (Comm.) 1 at para. 42.
31. Airbus Industrie v. Patel (fn. 19)—where the ground for the application was
that one of the foreign states had no jurisdiction to grant such an injunction —that was
not sufficient for intervention by an English court.
32. Compare Sabah Shipyard (Pakistan) Ltd v. Islamic Republic of Pakistan
[2003] 2 Lloyd’s Rep. 571 (C.A.) with Royal Bank of Canada v. Cooperatieve
Centrale Raffejsen Boerenleeenbank BA [2004] 1 Lloyd’s Rep. 471 applied to
limitation proceedings in The Western Regent (24. ).
33. See Tonicstar Ltd v. American Home Assurance Co. [2005] 1 Lloyd’s Rep.
32.
34. Donohue v. Armco (fn. 19), para. 24 (H.L.) para. 63 (C.A) and authorities
cited. In that case Brooke L.J. dissented on this point.
35. See Donohue v. Armco (fn. 19) Akai Pty Ltd v. People’s Insurance Ltd [1998]
1 Lloyd’s Rep. 90 (although this is in some cases precisely the issue and there may be a
debate about the view of the foreign court (as in Donohue (fn. 19)); Society of Lloyd’s
v. White, The Times, 14 April 2000. Consideration should be give n to the stage reached
in the foreign proceedings (Bankers Trust Co. v. Pt Jakarta International Hotels (fn.
12)).
36. See Donohue v. Armco [2002] 1 Lloyd’s Rep. 425 (H.L.) the House exercising
its own discretion and this factor outweighing the force of an English exclusive
jurisdiction in respect of some of claims relevant to the case. Bouygues Offshore SA v.
Caspian Shipping Co. [1998] 2 Lloyd’s Rep. 461 (C.A.). But an injunction may be
granted in respect of the parties to which it does apply despit e the duplication of
litigation (Credit Suisse First Boston (Europe) Ltd v. MLC (Bermuda) Ltd [1999] 1
37. Case 159/02 [2004] 2 Lloyd’s Rep. 169 (ECJ).
38. Through Transport Mutual Insurance Assoc (Eurasia) Ltd v. New India
Assurance Assoc. Co. Ltd [2005] 1 Lloyd’s Rep. 67 applied in The Front Comor
[2005] All E.R. (D) 350. For a detailed and balanced assessment of the various issues
see Gross [2005] LMLLQ 10.
39. In Toepfer International GmbH v. Société Cargill France [1997] 2 Lloyd’s
Rep. 98 Colman J. expressed the view that matters relevant to forum non conveniens
were irrelevant when considering an anti suit injunction to restrain foreign proceedings
to protect arbitration agreements (followed at first instance in The Epsilon Rosa No. 2
[2003] I.L.Pr. 18). But with respect the issue is whether there should be any such
intervention.
40. The Act follows, extends and supersedes the Shipping Contracts and
Commercial Documents Act 1964 (see s.8(5)). For the power to regul ate shipping by
statutory instrument see Shipping and Trading Interests (Protection) Act 1995.
41. Protection of Trading Interests Act 1980, s.1. Orders made are concerned with
US Re-export Control (SI 1982/855, SI 1983/900) relating to US anti -trust laws as they
affect certain UK airlines. 1992 No. 2449 relating to United States control of Cuban
assets. SI 1988/569 relating to enforceability of judgments regarding Australian Trade
Practices (see Chapter 27). As to the scope of the 1983 Order and an unsucc essful
challenge to its validity see British Airways Board v. Laker Airways [1984] 3 All E.R.
39 (H.L.). As to overlap with the EC Counter Measures Regulation in relation to
Extraterritorial US Legislation regarding Cuba and Iran see SI 1 996/3171.
42. I.e. it infringes the jurisdiction of the United Kingdom or is otherwise
prejudicial to its sovereignty, security or relations with other governments (s.2(2)).
Prohibition may also be ordered if court proceedings are not the basis of the
requirement or the requirement does not go to specific documents (s.2(3)).
43. Protection of Trading Interests Act 1980, s.2. Courts are also prohibited from
giving effect to requests for evidence from foreign courts which otherwise could be
acceded to in accordance with the Evidence (Proceedings in Other Jurisdictions) Act
1975 where the Secretary of State certifies that the request infringes on United Kingdom
jurisdiction or is prejudicial to its sovereignty (s.4).
44. See s.4. The effect of the prohibition is limited to acts done in the United
Kingdom in the case of noncitizens or companies not incorporated in the United
Kingdom (s.3(2)).
45. So the principle of limitation of liability in respect of maritime claims attracts
principles of its own, see Chapter 24. The remedy, however, is, in the end, an order for
payment of money as compensation for loss.
46. [1972] 2 Q.B. 543.
47. Union Discount Co. Ltd v. Zoller [2001] EWCA Civ 1755.
48. The principle is not limited to cases in which costs are irrecoverable and an
indemnity against further costs may be awarded AS/DS Svendborg D/S v. Ali Hussein
Akar [2003] EWHC 797.
49. Miliangos v. George Frank (Textiles) Ltd [1976] A.C. 443.
50. Jugoslavenska Oceanska Plovidba v. Castle Investment Co. Inc. [1974] Q.B.
292 (C.A.).
51. Miliangos v. George Frank (Textiles) Ltd [1976] A.C. 443. See Practice
Direction [1976] 1 W.L.R. 83. Where a company goes into liquidation the conversion
date in respect of foreign currency creditors is the starting of the winding up ( Re Lines
Bros Ltd [1983] Ch. 1), disagreeing with the suggestion in Miliangos that it is the date
of admission of the claim.
52. The Despina R [1979] A.C. 685. Virani Ltd v. Manuel Revert y Cia SA [2004]
2 Lloyd’s Rep. 14 (C.A.). As to agreed rate of exchange, see The Agenor [1984] LMLN
130. Where there is a claim and counterclaim the liability is finalised on settlement of
the amounts owing and that is the date for any necessary conversion. See The
Transoceanica Francesca [1987] 2 Lloyd’s Rep. 15.
53. SI 1993/564. As to the statutory rate of interest on unpaid debts see Late
Payment of Commercial Debts (Interest) Act 1998 as amended by SI 2002/1674
implementing EC Directive 2000/3 5 wholly in force on 7 August 2002. (SI 2002/1673).
As to the rate see SI 2002/1675.
54. Civil Procedure (Modification of Enactme nts) Order 1998 (SI 1998/2940).
Interest payable on a judgment will run from the date when judgment is given (i.e.
damages assessed or agreed) subject to a specific provision in the CPR or a court
ordering otherwise (including a date prior to judgment bein g) CPR 40.8; Thomas v.
Bunn [1991] 1 All E.R. 193 (H.L.). As to interest in a default judgment see CPR 12.6,
12.7 where a claim is admitted 14.14. As to the power to award an increased rate of
interest when a judgment exceeds an offer of settlement see 36. 21.
55. CPR 16.4.
56. Where an interim payment exceeds the total liability interest may be awarded
on the overpaid amount CPR 25.8(4).
57. Section 15, Sch. 1, Part 1. In respect of damages for personal injuries or death
exceeding £200 interest shall be included unless the court finds special reasons why it
should not be (s.35A(2)). Interest may not be so awarded for any period while interest
is already running (s.35A(3)). As to the prior rule, see The La Pintada [1984] 2
Lloyd’s Rep. 9. As to a flexible approach depending on the borrowing rate likely to
apply to the claimant see Jaura v. Ahmed [2004] EWCA Civ 210.
58. Section 35A(3).
59. Arbitration Act 1996, s.49. The choice of law or a law objectively applied is
equivalent to agreement of the parties (s.4(5)) and this may affect the scope of the
discretion.
60. Walker v. Rowe [2000] 1 Lloyd’s Rep. 116. Prior to the 1996 Act such interest
would automatically attach (see ibid., para. 17). The reasoning must apply to costs and
interest of any kind.
61. In the case of ships the court has an inherent power to order that rectification
(The Ocean Enterprise [1997] 1 Lloyd’s Rep. 449—the court there qualifying the
statement of power by "at least where there has been no transfer of title to a bona fide
purchaser without notice"—but that surely goes to the exercise of the power, dependent
on the right).
62. See e.g. Romalpa Case [1976] 2 All E.R. 552; Borden (UK) Ltd v. Scottish
Timber Products [1981] Ch. 25 and Chapter 21. As to tracing as an ancillary remedy to
a freezing injunction, see Chapter 16.
63. See e.g. Behnke v. Bede Shipping Co. [1927] 1 K.B. 649; The Stena Nautica
(No. 2) [1982] 2 Lloyd’s Rep. 336. A contra ct may be rectified to reflect the parties’
intention. See e.g. for an application of the principle to a charterparty The Nai Genova
and Nai Superba [1984] 1 Lloyd’s Rep. 353; The Rhodian River [1984] 1 Lloyd’s Rep.
373.
64. The remedy is made available by the Sale of Goods Act 1979, s.52. As to the
consideration of "equitable ownership" in such a context, see The Permina 3001 [1979]
1 Lloyd’s Rep. 327. A purchaser must show that damages are not adequate —The Stena
Nautica (No. 2) [1982] 2 Lloyd’s Rep. 336.
65. Compare The Iran Bohonar [1983] 2 Lloyd’s Rep. 620 with The Scaptrade
[1983] 2 All E.R. 763.
66. Lady Navigation Inc v. Lauritzencool, AB [2005] EWCA Civ 579.
67. See Photo Production Ltd v. Securicor Transport Ltd [1980] A.C. 827. As to
the right to choose whether to treat the contract as at an end and claim damages, or seek
to enforce it, see The Alaskan Trader [1984] 1 All E.R. 129 (shipowners’ no legitimate
interest in keeping a charterparty in existence). The obligation accrued by the date of
acceptance of repudiation remains. See The Blankenstein [1983] 3 All E.R. 510 (the
deposit due in contract of sale of a ship). As to the relationship of rescission,
repudiation and the right to claim damages in the context of the wording of a part icular
contract see Stocznia Gdanska SA v. Lativan Shipping Co. [1998] 1 All E.R. 883.
68. Arbitration Act 1996, ss.9, 86 (not in force). As to limits on court intervention
see s.32(2), Valo do Rio v. Bao Steel [2000] 2 Lloyd’s Rep. 1. See also Chapter 13.
69. As to the procedure see CPR Part 62, 62 PD. An application may be made
without notice but the court may direct that the enforcement form be served on specified
parties to the arbitration (62.18). The form may, with the permissio n of the court, be
served out of England 62.16(2), 18(4). The award itself is confidential unless it was
reasonably necessary to disclose it to establish legal rights against a third party:
Hassneh Insurance v. Mew [1993] 2 Lloyd’s Rep. 243; Insurance Co. v. Lloyd’s
Syndicate [1995] 1 Lloyd’s Rep. 272. As to the judgment on appeal see City of Moscow
v. Bankers Trust Co. [2004] 2 Lloyd’s Rep. 179 (C.A.).
70. Arbitration Act 1996, ss.67 –71.
71. As to interim (including freezing) injunctions see Chapters 14, 16. As to anti
suit injunctions see above.
72. See CPR 25.1(b), 40.20. It will not however use this power to decide
hypothetical or future disputes: Re Barnato [1949] Ch. 258. As to the use of and
limitations on declarations of right when the parties have nominated a body other than
the courts to resolve disputes see Mercury Communications Ltd v. DG of
Telecommunications [1996] 1 All E.R. 975 (H.L.). As to interim declarations, see
Chapter 14.
73. Messier Dowty Ltd v. Sabena SA [2000] 1 Lloyd’s Rep. 428 at p. 434 per
Lord Woolf M.R.
74. Provided as in any case there is jurisdiction over the defendant.
75. See Bristow Helicopters Ltd v. Sikorsky Aircraft Corpn and others [2004] 2
Lloyd’s Rep. 150.
76. Messier Dowty Ltd v. Sabena SA (fn. 73) treating with reserve the statements
in earlier cases limiting the power to grant negative declarations. Under the European
jurisdiction regimes they are treated no differently to any other remedy ( see ibid. and
Chapter 4).
77. See Bristow fn. 75.
78. In Messier Dowty v. Sabena S.A. (fn. 73) the court refused a negative
declaration on the basis that there was at the time of the hearing no justification in
joining Sabena in order to claim the declaration of non -liability as Sabena had not
claimed against Dowty in the substantive proceedings in France and it was doubtful if it
would.
79. See Smyth v. Behbehani [1999] I.L.Pr. 584 (C.A.) —an approach not
inconsistent with the later analysis in Messier Dowty (fn. 73); Youell v. Kara Mara
[2000] 2 Lloyd’s Rep. 102.
80. CPR 25.1(c)(v). See Chapter 14 "interim relief". As to sale as execution of a
judgment see infra.
81. The sale of a ship includes all property on board other than that owned by
someone other than the shipowner (The Silia) [1981] 2 Lloyd’s Rep. 534. As to bunkers
see The Eurosun and the Eurostar [1993] 1 Lloyd’s Rep. 106; The Saetta [1993] 2
Lloyd’s Rep. 268. For jurisdiction as to proceedings, cf. the Supreme Court Act 1981,
s.21(6) and Chapter 2.
82. CPR 61.10. The order may be directed to lie in the office until crew still
aboard her have left. (See e.g. The Vasilia [1972] 1 Lloyd’s Rep. 51; The Fairport
[1965] 2 Lloyd’s Rep. 183 or, pending repairs, see e.g. The Sullivar [1965] 2 Lloyd’s
Rep. 350.) An order for sale before judgment under this rule may only be made by the
Admiralty Judge (61 PD 9.3) while most orders may be made by the Court of the
Admiralty Registrar. It is said in the comments in Civil Procedure that save in special
circumstances according to case authorities the property must be under arrest ( The
Wexford (1888) 13 P.D. 10, The Berris 1905 Fo. 497) but the rule contains no such
restriction. There is no such restriction in the power applicable generally. A court may
order the discharge and sale of cargo not under arrest where a ship in which the cargo is
loaded is under arrest and an order for sale is made in respect of it. (See The Myrto
[1978] 1 Lloyd’s Rep. 11, at p. 13.) For the general power in relation to discharge of
cargo where either cargo or ship is not under arrest see 61.8(8) –(10).
83. It would seem that such an application may be made by the Marshal as part of
the general powers in respect of property under arrest.
84. CPR 61.10(2).
85. See The Myrto [1977] 2 Lloyd’s Rep. 243, at pp. 259 –261 where Brandon J.
considered the principle of sale pendente lite. On appeal, his decision on this point was
upheld ([1978] 1 Lloyd’s Rep. 11).
86. See The Marco Reefer [1981] LMLN 50.
87. 61 PD 9.1. Any application not falling within this rule would be within CPR
Part 23 (applications) or Part
25 (interim remedies). For an example of a defendant owner requesting the order,
see The Westport [1965] 1 Lloyd’s Rep. 547.
88. See 61 PD 9.2 and Admiralty Form No. ADM 14. In The Halcyon the Great
(No. 2) [1975] 1 Lloyd’s Rep. 525, Brandon J. ordered a re -offering of a ship on the
undertaking of parties opposing a sale below the apprais ed value to indemnifying the
court against any loss following from non -acceptance of the highest bid then available.
89. The Jarvis Brake [1976] 2 Lloyd’s Rep. 320.
90. Ibid. But an arrest and subsequent order for appraisement and sale does not
affect the terms of a charterparty in relation to the ship. So if by those terms a ship is
redelivered by charterer to owner and the owner takes over and pays for fuel on board
the title to the fuel passes to the owner despite the order ( The Span Terza (No. 2) [1982]
2 Lloyd’s Rep. 72 reversed on a construction point [1984] 1 Lloyd’s Rep. 199 (H.L.)).
91. ADM 14. As to investment when in foreign currency see 61 PD 9.5 –8.
92. See e.g. The Acrux [1962] 1 Lloyd’s Rep. 405; The Cerro Colorado [1993] 1
Lloyd’s Rep. 58. It may be contempt of court to place an advertisement stating that
despite any sale the ship will remain encumbered ( ibid.). Compare the sale under a writ
of fieri facias (see infra).
93. See The Acrux (fn. 92); The Ship Galaxias [1989] LMLN 240 (Fed. Ct.
Canada).
94. Although there are "defendants" in actions in rem. See Chapters 2, 10.
95. [1907] P 137. See further Chapter 10.
96. [1972] 2 Q.B. 543. See further Chapter 10.
97. [1973] F.C. 955—on appeal held not within Admiralty jurisdiction [1978]
DLR (3d) 28.
98. [1980] LMLN 15.
99. E.g. as in The Ocean Enterprise [1997] 1 Lloyd’s Rep. 449.
100. Enforcement officers have the powers of sheriffs at common law (Courts Act
2003 s.99, Sched. 7.) See CPR Sched. 1, RSC Ord. 46, r. 1. Ord. 47, r. 1). In granting a
stay under Ord. 47 the court has declared its powers to pierce the corporate veil and to
probe into real control of companies. Orri v. Moundreas [1981] Com.L.R. 168;
Canada Enterprises Corpn Ltd v. MacNab Distilleries Ltd [1981] Com.L.R. 167.
101. Courts Act 2003, Sched. 7. Notice of an issued but unexecuted warrant of
execution in the hands of a district judge or county court results in a similarly lower
priority of a purchaser (ibid.).
102. Seamen’s wages may not generally be attached. (See the Merchant Shipping
Act 1995, s.34(1) and Chapter 18.) As to that which may be attached, see extension of
procedure through the Supreme Court Act 1981, s.40, as amended by the A dministration
of Justice Act 1982, s.53, Banking Act 1987, s.108(1), Sch. 6.
103. See Charging Orders Act 1979; (replacing garnishee proceedings) CPR 73,
Sect. 1.
104. See the Supreme Court Act 1981, s.37(1); CPR 69, 69 PD 4.1.
105. See e.g. Re Potts [1893] 1 Q.B. 648; Re Pearce [1919] 1 K.B. 354. As to
appointing a receiver in respect of foreign assets see Derby v. Weldon (No. 2) [1989] 1
All E.R. 1002. A receiver may be appointed to receive future debts as well as debts due
at the date of order (Soinco Saci v. Norokuznetsk Aluminium Plant Base Metal Trading
Co. [1997] 2 Lloyd’s Rep. 339).
106. See RSC Ord. 45, r. 5; RSC Ord. 52. Where there is non -compliance with an
injunction or specific performance, so far as practicable the court may direct that t he act
be done by another at the cost of the disobedient party, Ord. 45, r. 8.
107. See CPR 25.1(f), 25.2. (Orwell Steel Erections v. Asphalt and Tarmac (UK)
Ltd [1985] 3 All E.R. 747). As there is a power to grant such an injunction as incidental
to and dependent on the enforcement of a substantive right it may be granted in respect
of a judgment debt owed by another (Mercantile Group AG v. Aiyela [1994] 1 All E.R.
110). Such an order may apply to assets brought into England after the order is made
(Soinco Saci (fn. 105)). Other interim remedies for preservation of assets may be
available (see CPR 25.1 and Chapter 14).
108. CPR 61.5(1)(b). See Chapter 15.
109. RSC Ord. 45, r. 4 (CPR Sch. 1). As to the procedure relating to issue of writs
of execution see RSC Ord. 46 (CPR Sch. 1).
110. RSC Ord. 45, r. 5.
111. See 62.18 referring to the statutory provisions authorising such enforcement.
As to foreign awards see Chapter 27. As to foreign awards enforceable in the country
where made as judgments see 62.20 and Chapter 27.
Part VI
Foreign Law
Chapter 26
Application of Foreign Law 1. The English Approach

26.1 The presence of a foreign element of any kind in any dispute raises the
possibility that a foreign rule may be used by an English court to resolve that dispute. To
decide which of a number of potentially applicable rules applies, English law
traditionally adopted what might be labelled an automatic pigeon -hole approach. It
groups claims into categories (i.e. it "classifies" a claim) and attaches to these
categories choice of law rules. As a safety valve to prevent a domestic explosion
through an unacceptable result by this automatic process, it provides for rejection of the
rule because of "public policy". The traditional approach is largely maintained subject
to the introduction of flexibility in tort claims.
26.2 The conflicts process of English law is largely judge made, and it is
relatively rare to find a choice of law rule in a statute. However, a legislative
dispositive provision may be construed as or be stated to be "mandatory" in that it is to
apply to every case within it whether or not according to the process it would be the
governing law. 1 More fundamentally there may be legislation providing for choice of
law in respect of particular matters. Of these, three are "applicable law" statutes —the
Foreign Limitation Periods Act 1984, the Contracts (Applicable Law) Act 1990 and the
Private International Law (Miscellaneous P rovisions) Act 1995.
26.3 The 1984 Act was intended to bring English law more in line with other
systems in recognising that rules as to limitation of time applicable to a claim should be
those of the law governing the claim rather t han (as a matter of procedure) the forum.
The Contracts (Applicable Law) Act 1990 implemented in English and Scottish law the
Rome Convention 1980 on the law applicable to contractual obligations. 2 The Act3
provides rules for deciding the law applicable to contracts within its scope including
provision for the mandatory dispositive rule ( see Contract infra). By the Private
International Law (Miscellaneous Provisions) Act 1995 rules are provided for the law
applicable to substantive issues characterised as t ort or, for Scottish law, delict 4 (see
Tort infra). There is no doubt that, unless qualified, where statutory rules provide for
choice of law these are mandatory in the sense that parties cannot contract out of them. 5
1. The Four Stage Process
26.4 Subject to statutory provisions as to choice of law the process consists of four
stages. 1. The relevant issue before the court is classified as either "procedure" or
substance. If classified as procedure the issue is referred to forum law: if substantive,
as falling into one of a number of categories based on legal concepts (such as contract,
tort or property). 6
26.5 2. The classification of the issue leads to identification of the "selection rule"
(the connecting factor)—leading to the system of law or rule gove rning the issue. Each
category has attached to it "selection rules" which automatically apply —leading to the
rule which will apply to the disposal of the issue (the dispositive rule). So, for example,
any question relating to the validity and effect of a transfer of a tangible thing is referred
to the law of the place where the property was at the time the issue arose and a
contractual issue to the "law applicable to the contract". 7 Where a statute creates a
cause of action but does not contain its own choice of law provision 8 it may be
classified within an established substantive category such as tort or simply as a statutory
claim sui generis. So a claim under the Fatal Accidents Act 1976 could be viewed as
statutory or (if it is based on the defendants’ negligence) tortious. 9 A wages claim within
the Supreme Court Act 1981, section 20(2)(o), could be regarded as a statutory claim
having its own choice of law rules or a claim in contract, its resolution depen ding on the
law applicable to the contract.
26.6 3. The identification of the governing system of law and ultimately the
dispositive rule. This seen by some as two steps 10 but it would seem that the final step
is simply to seek a response as to how the app licable law deals with the issue.
26.7 4. In appropriate cases there will be consideration of "public policy" —does
it nullify the selection process of stages 1 and 2? Public policy flits as a ghost
throughout the choice of law process. On occasion, it seems to have been used fairly
unashamedly to "classify" as issue so as to provide the basis for selection of the desired
dispositive rule; but its primary manifestation is an escape route from an unpal atable
result reached through the application of stages 1 and 2. If the application of the
dispositive rule selected by the process produces a domestically unacceptable result it
seems as if the result will be replaced by the application of English law.
26.8 However many stages are identified, no stage is inflexible and is subject to
change. Further where the selection rule is statutory there will be a question of
construction of its scope without a rigid application of any selection category. The
purpose of the process should always be borne in mind —to select the most appropriate
law to govern an issue. 11 In other words the purpose is to match the issue to the
appropriate rule. The operation of English “public policy” on foreign legislation
26.9 English courts will not enforce foreign revenue laws, 12 foreign penal laws 13
laws in violation of international law 14 or repugnant to public policy. 15 Non-penal laws
providing for expropriation of assets will be recognised insofar as they affect assets in
the relevant foreign territory at the date of seizure but not otherwise. 16 2. Limitations
on the Selection Process (a) The scope of the dispositive rule Substantive limitation
26.10 Clearly, it is only if the rule by its own terms applies to an issue that it
comes into contention as a potentially governing rule; but it must be stressed that its
scope is a matter of domestic law of which it is part as distinct from its application as a
result of the choice of law process. So the Hague -Visby Rules apply by virtue of Article
X:
"Article X
The provisions of these Rules shall apply to every bill of lading relating to the
carriage of goods between ports in two different States if:
(a) the bill of lading is issued in a contracting State, or
(b) the carriage is from a port in a contracting State, or
(c) the contract contained in or evidenced by the bill of lading provides that these
Rules or legislation of any State giving effect to them are to govern the contract,
whatever may be the nationality of the ship, the carrier, the shipper, the consignee,
or any other interested person."
26.11 It is only if the case is within Article X or any statutory provision applying
the rules 17 that the question arises whether the provisions apply as part of the law
governing the issue. 18 So in The Komninos S19 the contractual application of English
law to a contract of carriage of goods by sea did not include the rules —for the case fell
outside the ambit of the rules as applied by the rules themselves and the Act applying
them. If the case is within the ambit of the rules whether or not they apply depends on
the conflicts process of the forum. Statutory provisions —is a connecting link required?
26.12 Provided a matter falls within the material scope of a statutory provision the
question arises of the connection (if any) required between the matter and England for
the provision to operate. Traditionally where there was no indication the general
presumptive limitations were to acts within the territory of the United Kingdom and
(possibly) to British subjects wherever they may be. The limitations to the territory is a
recognition of practicality and recognition of other legal systems, but in today’s world it
is unlikely that the reach of English civil legislation would be seen to extend generally
to British citizens when in other states. In 1974 in The Esso Malaysia 20 Brandon J.
considered the application of the Fatal Accidents Act 1976 to a claim based on the
death of a foreign seaman resulting from a collision between two foreign ships on the
high seas. Brandon J. drew a distinction between statutes 21 (i) creating new rules of
conduct and (ii) removing exception s to common law liabilities or attaching new
liabilities to the violation of existing rules of conduct. The territorial limitation, in the
judge’s view, attached only to category (i). Such a dichotomy makes sense only if it
accepted that the common law rules being amended themselves apply extraterritorially.
And, it may be asked, wherein lies the rationale between common law and statutes in
respect of territorial application?
26.13 Despite any presumption relating to extra -territoriality the scope of the
statute will depend on the nature of the statute and the response to the enquiry as to
persons and events intended by Parliament to be within the provisions. It is in essence
an enquiry as to the need for a connecting link and if seen as requiring such a lin k,
identifying it. Apart from express provision 22 identification of the link depends on the
policy of the statute. 23 So it may be that the connecting link is a relevant event in
England (as in respect of carriage at least departure or arrival in the United Kingdom24),
or that the statute applies only if English law is the governing law 25 or that it applies in
English proceedings whatever the governing law (the mandatory dispositive rule). (b)
The mandatory dispositive rule
26.14 Until 1982 (apart from the general application of public policy) English law
had rarely consciously considered the question of whether a rule "overrode" the
conflicts process. 26 However, in 1965, in a maritime context, the construction of
"maritime liens" in the statutory jurisdiction framework was decided in The Acrux27 to
mean English maritime liens. In 1982 in The Morviken 28 the House of Lords held that
the statutory provision prohibiting derogation from the Hague -Visby Rules could not be
avoided by choice of law. The concept of the mandatory rule attains statutory
recognition through the Contracts (Applicable Law) Act 1990 and the Arbitration Act
1996. In the Contracts Act basic references of substantive contractual issues are to the
law selected by the parties or where there is no selection, the law of the country most
closely connected to the contract. These however are subject to (i) forum mandatory
rules, 29 and (ii) despite choice the rule of another country if that rule cannot be
derogated from by choice and all other relevant elements point to that country. 30 Forum
mandatory rules are those which apply irrespective of choice of law, foreign mandatory
rules are those which cannot be derogated from by contract. In the Arbitration Act a
number of provisions are specified as "mandatory" and as applying notwithstanding any
agreement to the contrary. 31 (c) Foreign law deemed to be English law
26.15 Foreign law must be proved as a matter of fact. If it is not proved (or
pleaded) it is deemed to be identical with English law. Parties may, therefore, control
the application of foreign law. 3. Choice of Law and Jurisdiction (a) Discretionary
jurisdiction—relevance of governing law
26.16 In most contexts questions of governing law arise only after jurisdiction has
been established. However, jurisdiction may depend on governing law. First, where
there is an express and enforceable choice by contract the law selected may impose a
jurisdiction framework (as, for example, through the Hamburg Rules 32 and Athens
Convention on Carriage of Passengers and their Luggage 33). Secondly, where
permission of the English court is required to create jurisdiction through service of a
claim form out of England the exercise of discretion to give permission may depend on
first on the claim being classified as contract and secondly that contract 34 being
governed by English law. 35 Thirdly, a jurisdiction or arbitration agreement will depend
for its validity either on that agreement as such or the law governing the substantive
contract.36
26.17 It may be arguable that in deciding whether to exercise jurisdiction courts
should pay more attention than they presently do to the question of which law they will
have to apply. 37 So where jurisdiction depends on the existence of a transaction (such as
a contract) or a right (such as a maritime lien) it may be preferable to refer that questio n
to a law other than the forum (i.e. the putative proper law). It has, however, been said
that such a matter of an English court’s "procedural competence" should be determined
by an English rule.38
26.18 However, the Rome Convention 1980 now provides that the existence and
validity of a contract or a term is, with one qualification, to be adjudged by the law
applicable if it were valid. 39 So, provided the contract (or term) falls within it, there
will remain no question of an English court applying the lex fori to decide on its
jurisdiction if that jurisdiction depends on the existence of the contract. 40 But the
provision does not meet the issue of the applicable law depending on which of a number
of terms is valid. Further, the Convention does not encompass arbitration or jurisdiction
agreements and the validity of such an agreement clause may be critical to the
identification of the proper law.
26.19 The English courts have applied the principle now in the Rome Convention
in considering whether to grant leave to serve a claim form out of the jurisdiction —at
least where it was an English arbitration clause. 41 On the other hand where the issue
was whether a contract incorporated an arbitration clause, and there were two possible
such clauses (with different consequences) the law of the forum (English law) was
applied.42 This is but another example of the limitations of a principle of choice based
on a particular factor (i.e. here, the putative proper law) and there is more than one such
factor. The issue does not, however, differ whether or not jurisdiction is at stake ( see
infra) and the view that the only practical course is to apply the lex fori is difficult to
contest. (b) Statutory claims
26.20 A claim based on a statute may be restricted either by the statutory provision
or judicial construction to a claim valid in English law. Jurisdiction and choice of law
thereby merge. So, for example, the restric tion of maritime liens recognised in English
courts to English maritime liens may be seen as a jurisdictional or choice of law rule. 434.
Maritime Claims and the English Choice of Law Process The problem of the high
seas
26.21 Any choice of law rule linking a dispute to a legal system on the basis of
locality or territoriality must be modified as regards events occurring at a place not
within the territory of any legal system. The need for such modification may be
minimized in maritime law by treating ships as territory and limiting the area of
uncertainty to events occurring otherwise than on board a ship. 44 Classification of
maritime claims
26.22 While classification is for English law, it must be undertaken with the
appreciation that these categories may not match those of foreign law. So the process
must not be equated with the approach in domestic law. Further, where the English law
is Convention based it may be that the concepts are those of the Convention itself. 45
Subject to that proviso the primary classification of procedure/substance applies to
maritime claims as to other claims. 46 In regard to substance, maritime claims as listed in
the Supreme Court Act 1981, section 20, can be classified for the purpose of choice of
law selection rules into the categories on which in English law selection is based, i.e.
contractual, tortious, proprietary, restitution (or based on unjust enrichment), and
statutory. 47 To be consistent with the general approach, the classificat ion should be
based on the issue raised by a particular claim and not the categories of claim listed in
the Act.48 So, for example, (i) section 20(2)(d) in specifying "any claim arising out of
any agreement relating to the carriage of goods in a ship or to use or hire of a ship"
encompasses claims in contract and tort; (ii) claims in the nature of salvage may be
contractual or based on unjust enrichment; and (iii) mortgage claims may be proprietary
or contractual.49 Statutory claims—Admiralty jurisdiction and choice of law
26.23 A statutory maritime claim may be construed as raising a statutory issue and
having its own choice of law provision. So an application under the Merchant Shipping
Acts or an oil pollution claim may be so regarded. Apart from mortgage claims (in
regard to which statute provides for the power to hear such claims based on foreign
law50) and any other statutory provision 51 the question of whether a claim based on
foreign law will lie depends on statutory construction. So far as actions in personam
are concerned there is no reason why the general choice of law process should not
apply. If this is correct any claim falling within Admiralty jurisdiction will be adjudged
by the rule selected by the classification and selection rule process —subject only to
forum mandatory rule and public policy.
26.24 As regards actions in rem, whether an action based on foreign law will lie
turns entirely on the construction of sections 20 an d 21 of the Supreme Court Act 1981.
Where foreign law has been applied it appears to be approached rather as a matter of
jurisdiction (i.e. whether to admit the foreign law claim) than applicable law (i.e. a
conscious assessment of the law to govern the va lidity of the claim). English courts have
admitted claims, the characterisation of which under foreign law matches those of
similar claims in English law within the in rem jurisdiction. So foreign law has been
consulted to ascertain the rights of seamen. 52 In particular, a payment of social security
contributions under foreign law has been admitted as a wage claim just as such a
contribution under English law would be admitted. 53 Further, on occasion, courts have
suggested that the question of whether a cla im fell within necessaries could be referred
to foreign law. 54
26.25 On the other hand, in 1965 in The Acrux,55 Hewson J. held that as regards
section 21(3)—which provides for the availability of an action in rem to enforce a
"maritime lien or other charge"—"maritime lien" meant an English maritime lien and
that "other charge" was restricted to a foreign claim having the characteristics of one of
those attracting an English maritime lien. In respect of a maritime lien, the judge thereby
reached the same conclusion as later reached by the Privy Council in The Halcyon
Isle56—that in English law maritime liens are in substance English maritime liens.
26.26 It does not, however, necessarily follow from limiting maritime liens to
English maritime liens that the ability to bring an action in rem is similarly limited.
Because of the differing legal consequences of maritime liens and actions in rem,
different issues of policy are involved. Further, the issue in The Acrux went to the type
of claim attracting a maritime lien while the issue in respect of the ability to bring an
action in rem is restricted to whether claims within the statutory concept (e.g. of
disbursements) can be admitted because of characteristics identical with those
recognised in English domestic law as falling within the category. In this sense the
analogy is more accurately with a mortgage, in which respect English law, having
defined "mortgage", recognises foreign rights satisfying the definition. 57
26.27 Lacking specific statutory limitation, it is suggested that any statutory heads
of claim should be taken to encompass foreign claims falling within the concept
reflected by the head. There is no doubt, however, that a foreign claim not falling within
any head would not be admitted as the basis of an action in an English court. There is no
"gate" in the statute through which it could go. 2. Alternative Approaches to Selection
by Classification Qualified by Public Policy
26.28 The "classification" approach has been strongly criticised in the United
States where in many jurisdictions the applicable law is that with which the issue has
either the "most significant relationship" or the law having the greatest "governmental
interest". The two approaches are sometimes distinguishable in theory but often overlap
in application. Unlike the "classification" approach these approaches are openly based
on an assessment of dispositive rules which might govern the dispute, and on occasion
an evaluation of the rules in the context of elements assessed as relevant to the issue
(including the contacts between issue and the various rules). 58
26.29 The selected dispositive rule is reached on assessment of its claim to
resolve the dispute. So, in applying "the most significant relationship" test a court must
decide which legal system because of its contacts and the purpose of its relevant rule, is
"most significantly" connected with the dispute. In applying "governmental interest"
criteria a court would assess the interest in each state connected with the dispute in
adjudging it.
26.30 In the United States the application of these criteria is commonplace in some
states but their application in Admiralty matters is uncertain. 59 In England the criterion
of the significant legal relationship is reflected at least to some extent in the reference of
contractual issues both within and outside the Rome Convention to the law having the
closest connection. In tort judicial development is reflected in the Private International
Law (Miscellaneous Provisions) Act 1995, section 12 ( see infra) through provision for
displacement of the general rule of place of the tortious event by a "substantially mo re
appropriate law". There is no evidence of any influence in regard to other issues.
26.31 However it may be argued that the emphasis on the search for the
appropriate law and the view that this involves an assessment of both the nature of the
issue and its link with the dispositive rule goes some way towards the criterion of "most
significant relationship". The format remains that of classification but the inquiry or
assessment rejects any mechanical process based only on legal categories and s election
rules. 3. The Categories and Their Selection Rules 1. Substance or Procedure
26.32 In English law procedural issues 60 are referred to the law of the forum. Such
a choice of law rule is common to many legal systems. It makes complete sense insofar
as "procedure" refers to the steps in proceedings to enforce the claim and formal
requirements for bringing a claim. 61 It may be, however, that the purpose of a legal rule
may be achieved either through procedure or substantive provision —liability may be
made to depend either on "liability" in substance or on the availability of a remedy. So,
for example, there may be no liability unless others are sued (substantive) or there may
be no implementation of liability unless others are sued (procedure). On the
classification will depend whether the rule is such as to attract the law applicable to the
substantive issues or is governed by the law of the forum. 62 While the classification
gives control for the scope of each law to the legal system of which it is part such a
distinction of itself is perhaps more technical than real —the query should go to control
over liability, whether by lack of foundation for the remedy or remedy. The
consequences of classification of a right inherently substantive as procedural were
emphasised by the approach of the majority of the Privy Council in The Halcyon Isle 63
that a maritime lien is essentially a matter either of procedure or jurisdiction ( see
infra).
26.33 Further, in English eyes "procedure" is not restricted to steps leading to or in
proceedings and (at least arguably) encompasses questions of (a) time bars; (b)
priorities; (c) remedies; and (d) evidence —all of which undeniably have substanti ve
connotations. While it is arguable that these are matters which may be for the forum such
allocation should not be on the artificial basis that they are "procedural". (a) Time bars
26.34 Until the Foreign Limitation Periods Act 1984 64 English law viewed the
issue of time within which any action must be brought to enforce a claim as procedural.
By that Act save for matters to be determined by the law of England and of some other
countries limitation questions arising in English proceedi ngs are referred to the law
governing the substantive matter in dispute. 65 The exception as to public policy is to be
to the causing of "undue hardship" to a party or a person who might be made a party. 66
The Act applies to proceedings and arbitrations com menced after 1 October 1985 and
to limitation periods that had not by then expired. The issue of whether a right exists is
on any view substantive and therefore the termination of a right after a period of time is
rightly seen as a matter of substance. Any issue of destruction of the claim is substantive
and is for the law governing the action. 67
26.35 Since the coming into force of the Contracts (Applicable Law) Act 1990
(i.e. 1 April 1991) the escape route from foreign law limitation periods may not be op en
in respect of contracts. The Rome Convention enacted by the statute provides that the
law applicable to a contract shall apply to "the various ways of extinguishing
obligations and presumptions and limitation of actions" (Article 16). (b) Priorities
26.36 Any reference of priority to the law of the forum assumes that questions of
the substance or nature of a right (which should be a matter for the law governing its
creation) and priority of the right as against other rights are distinct issues. But, o n the
contrary, priority may be dictated by the nature. So, under United States law, there are a
considerable number of maritime liens which as between them are subject to a priority
framework geared to the classification of the liens. In English law there are a restricted
number of maritime liens with a priority framework geared to the relationship of the
varying types of lien. To distinguish nature and priority is to draw a distinction
inherently inconsistent with the whole framework of which the two aspe cts are part.68
26.37 Following that argument, the role of the forum as such in any matter of
priority can be questioned particularly when the governing law of all relevant
transactions is the same or where there are differing laws each leading to the same
result. It is only where there is a conflict because of differences in the laws governing
the competing transactions that the forum may be said to have an umpire’s role simply
because it is the forum. Otherwise, it is artificial to refer the connected iss ues of
priority and substance to different laws. The role of the law of the forum
26.38 The rule that priorities are for the forum seems firmly established only as
regards claims between creditors in bankruptcy, winding up of companies,
administration of estates 69 and in rem creditors in Admiralty. 70 Policy arguments
provide strong reasons for priorities as between interests in land and chattels to be
"referred to the law" of the place of the land 71 or chattel, 72 that following the law
governing transactions concerning them. That is where the control lies. Whether the
same reasoning applies to rights in intangibles is not necessarily so 73 (see below).
Given the nature of the right there is a greater risk of different laws applying to different
assignments and therefore a stronger case for reference to one law. That is not
necessarily the law of the forum, for it may be that (following the approach of the Rome
Convention) the law applicable to the right to which the assignment relates has the
strongest claim.
26.39 Provision is made in Article 12 of the Rome Convention for the law
applicable to (i) the assignment of a right as between assignor and assignee and (ii) also
the conditions under which the assignment may be invoked and the relationship between
assignee and debtor. The latter, it has been held, approaches the matter like the former
as (in Convention terms) contractual 74 (see below). Priority as between assignees falls
within the provision in the sense that it necessarily involves the relationship of each
assignee and the debtor and the conditions on which each may be invoked. Although
therefore there is no contractual connection between assignees, in the broad se nse of the
Convention, the issue may remain contractual ( see further 26.44). Maritime claims
26.40 In the area of maritime claims in rem authorities as to any distinction
between nature and priority of rights are unclear and unsatisfactory. It is, however,
possible to argue that the distinctions between substance (or nature) and priority and the
choice of law consequences have been judicially maintained. The decision of the Privy
Council in 1980 in The Halcyon Isle 75 widens the scope of law of the forum through
rejection of the concept of the maritime lien as substantive (as to which see infra).
26.41 Prior to The Halcyon Isle the preferred doctrine was that an English court,
faced with a claimant relying on a right, the nature of which wa s governed by foreign
law, should identify the characteristics of the right according to that law. 76 The court
should then fit those characteristics into the English domestic hierarchy. If the foreign
right had by its governing law the characteristics (for example) of a maritime lien it
should be so labelled. Any question of priority would then be referred to English law.
As has been said, the problem with this neat theory is that its application takes no
account of the rationale of the forum system of prio rity.
26.42 The argument that priority is a matter of substance supports the contention
that forum law should have little role to play and at most as an umpire in matters of
procedure. However, in that context it is arguable that for the forum’s interventi on to
stop at priority between claims, the nature of which is referred to another legal system,
makes as little sense as to impose its priority rules on a situation wholly governed
otherwise by another more closely connected law. A proprietary hierarchy si mply
cannot be split into matters of creation and matters or priority. So, for example, in
English law an essential element of the concept of equitable interests is their priority as
against interests at common law. (See 23.5).
26.43 It is suggested that in terms of English law a priority issue necessarily poses
a proprietary issue and the whole should be considered a matter of substance, the law of
the forum having a claim to govern it only as an arbiter where the rights are governed by
different laws. 77 In that role it is justifiably imposed, always accepting that jurisdiction
is based on some substantial connection with the dispute and that no other one law has a
greater claim as being more closely connected with it. However as seen earlier any
classification for conflicts purposes is not necessarily nor even desirably that of a
national law. It is perfectly possible to construe priority of contractual assignments as
remaining essentially contractual (see 26.39). Further, reference of priority to the law
governing the right assigned provides a single connected link for all matters concerning
it. (c) Remedies
26.44 It seems clear that only the type of remedy recognised in English law is
available78 but such restriction has little importance in respect of maritime claims based
on common commercial considerations. It is questionable, however, where the concept
of "remedy" begins and ends. As regards damages, subject to statutory provisions 79
matters of quantification are for the forum but matters of remoteness arguably are
substantive and to be referred to whatever law governs the primary issue. 80 Similarly,
"heads of damage" (i.e. the damage or injury which may be the basis of an award) are
matters of substance.8 1 (d) Limitation of liability
26.45 It is arguable that the right to limit is substantive and the amount recoverable
procedural or remedial. However, in English proceedings limitation of liability has
traditionally been seen as a matter for the forum. 82 The only concession has been to
recognise that a payment made out of England will be taken into account in respect of
the amount due—but only on the basis of English law. The more the Convention on the
Limitation of Liability for Maritime Claims 1976 is applied the less the need for a
uniform approach on conflicts rules. 83 The emphasis on forum law, however, does little
to assist in resolving difficulties inherent in the insistence of states on applying their
own domestic principles to a topic the existence of which is widely recognised. The
principles relevant to limitation of liability and their modern relevance (including the
applicable law) are discussed in the context of the topic in Chapter 24. (e) Evidence
26.46 Subject to statute, admissibility and proof are matters for the law of the
forum84 but the question of which facts are in issue 85 and the interpretation of any
document is clearly a matter of substance for the law governing the issue to whic h it is
relevant. By general principle presumption of law is arguably substantive, 86 while it is
clear that the question of burden of proof is for the forum. 87
26.47 By the Contracts (Applicable Law) Act 1990 the law governing the contract
applies "to the extent it contains in the law of contract rules which raise presumptions of
law or determine the burden of proof". 88 It appears therefore that for this provision to
operate not only must the matter be contractual but the rule be a "contract ual" rule or
presumption. It remains arguable that general rules of burden and presumption are
outside the Act. 2. Choice of Law for Substantive Issues
26.48 The choice of law framework is based on the connection of selection rules
to legal "categories" reflecting in large measure but not limited either to domestic
concepts or the contents of such categories ( see 26.5, 28). So established choice of law
categories in English law are (a) contract; (b) tort; and (c) property; (d) restituti on or
"unjust enrichment". Of necessity, a choice of law question raised by a statutory claim
will be subject to the selection rule relevant to the issue posed. As has been said, that
issue may be sui generis or may be classified as falling within one of the established
categories. "Statutory claims" must therefore be considered as a category —though
without any implication of a selection rule common to the category.
26.49 These categories are applied to maritim e claims but two types of claim not
forming part of the general law (general average and salvage) require further
consideration. Each has aspects of contract and unjust enrichment.
26.50 Classification of an issue into a category is therefore fundamental t o the
present English choice of law process. Classification should be a matter for English law
and, once classified, the claim referred to the law attached to that category. The view on
classification of the law to which the matter should be referred is ir relevant, for the
issue is being referred to it for disposition, not for an answer as to how it would regard
the issue for its choice of law process. As a consequence the preferable view is that it
is irrelevant whether the "proper (or applicable) law" of a contractual issue itself
regards it as "contractual"—the question is how it would dispose of the issue.
26.51 There is a view that once the process continues into the foreign law with
"secondary classification" so as to apply only that part of the law which relates to the
concept (e.g. contract) on which the reference is based. This, it is suggested, is not only
to ask a wrong and unnecessary question but to run the risk of imposing the categories of
the foreign law. It also complicates further an already complex matter, 89 requiring
evidence of foreign law not only on the resolution of the issue but its conceptual
approach.90
26.52 A case may concern issues falling into more than one cat egory, e.g. contract
and a tort. It is essential to "classify" each issue and analyse it in the context of the
dispute as a whole. 91 If one issue is paramount it is arguable that all issues should be
referred to the law governing it, but whether that be co nsidered or not it is necessary
clearly to define the role each issue plays in the dispute. In Sayers v. International
Drilling Co. NV 92 the plaintiff (an Englishman) was injured on an oil rig off the
Nigerian coast while employed by a Dutch oil company. H is action against his employer
was based on negligence of his fellow employees. The employment contract excluded
any liability for injury save as provided in a compensation scheme by the company.
Such a clause was void in English law but valid in Dutch law . The majority of the Court
of Appeal approached the question of liability as one of contract —and in choice of law
terms of which law was to govern the validity of the contract. However, the action was
based on tort and the role of the contract, if any, wa s to provide a defence. Therefore,
the question as to the proper law of the contract should have been regarded more
accurately as a preliminary issue leading to the question whether such a contract, if
valid, provided a defence in the law (or laws) applicable to the tortious claim. (a)
Contract
26.53 The conflicts framework differs at least in approach depending on whether
the contract falls within the scope of the Rome Convention on the Law Applicable to
Contractual Obligations 1980 as enacted into English law by the Contracts (Applicable
Law) Act 1990. 93 It was brought fully into force on 1 March 2005 with the
implementation of provision conferring jurisdiction as to interpretation of the
Convention by the European Court. 94
26.54 By Article 2 any law specified by the Convention applies whether or not it
is the law of a contracting State, and it is therefore irrelevant for its application in
English law whether the dispute has any connection with a contracting State. So far as
cases are within it the Convention as enacted reflects English law. By section 2(3) of
the Act the Convention is expressly applied in the case of conflicts between the laws of
different parts of the United Kingdom. It applies to contracts entered into on or aft er 1
April 1991. It contemplates only the laws of countries and is not applicable to a choice
between a national and non national law (such as Sharia).95
26.55 Although most substantive maritime contracts are within the Convention
jurisdiction and arbitration agreements are excluded, and there are other issues falling
outside it. The pre Act law remains relevant therefore both generally in respect of
contracts entered into before the specified date and excluded matters before or after the
date. Whether a contract is within or outside the Convention when seeking the law
governing a contract or a contractual issue the necessary first step is to identify the
contract or issue. 96 Where there are a number of arguably interlinked contracts it is
essential to decide on the connections between them (if any) for an analysis of the
governing law or laws. 97 The law apart from the 1990 Act
The proper law of the contract
26.56 The basic general principle is that, subject to statutory provisions and pub lic
policy, issues will be referred to the "proper law" of the contract —a concept which
under the 1990 Act becomes the "law applicable to the contract". The "proper law" is
that which the parties have selected (expressly or by implication), 98 or, if no selection
has been made, that law with which the transaction has its closest and most real
connection. 99 It follows that there can be no "floating proper law" —it cannot be
determined by an event occurring after the contract was entered into, 100 such as the
selection of a venue for general average adjustment 101 or the hearing of a dispute in a
jurisdiction at a place at the option of one of the parties. 102 However the option to
arbitrate in different places is not the adoption of a floating proper law —but is unlikely
to imply a choice of law. 103
The ambit of the proper law
26.57 It is by no means clearly established through authority, however, that the law
governing each and every contractual issue is the same. Where there is no selection of
the governing law by the parties there may still be argument as to whether a particular
"category" such as, for example, performance, should be identified as raising issues
distinct from any general question of right or obligation 104 or enforceability. The
tendency is to refer all matters to the proper law—matters of formation, illegality and
formality arguably may involve other laws. Renvoi is not applicable to contract. 105
MATTERS OF FORMATION—AGREEMENT, FORMALITY, CAPACITY
26.58 There is little authority specifically on any of these matters, and such as
there is may arguably be dismissed as outdated. In respect of formality, it is sufficient to
comply with the law of the place of contracting and, as to capacity, it may be sufficie nt
to comply with the law of domicile. Lacking convincing authority it would seem to
require strong argument to sever any particular category from the general modern rule of
the "proper law". However, in any given circumstance (as, for example, regards
formality) it may be possible to contend that the expectation of the parties or one party
is a factor strongly pointing to an application of a "proper law" to that aspect which
would not necessarily be the "proper law" applicable to other aspects.
26.59 The "putative proper law". An unresolved question is whether the issue of
agreement (i.e. whether there is a contract) is a matter for the lex fori or the putative
proper law.106 The trend of authority 107 and international agreement 108 tends to the proper
law of the contract as the governing law at least in the sense that it is sufficient for
validity to comply with that law. 109
26.60 If it is the putative proper law the reference could either be to the proper
law if the contract was valid or to the proper law "objectively" ascertained —which,
presumably, means ignoring any question of validity. The "objective" approach is
perhaps more logical in theory but may result in a contract being valid by one law only
to be invalid by the law which then becomes the proper law. Is the contract then to be
declared invalid or treated as valid despite the view of the law applicable to it?
26.61 The argument for the lex fori is that there is no route to the proper law until
it is established that there is a contract and that it is for the forum to decide the basis of
the reference. To refer the validity to the proper law is to beg the question —particularly
if the terms of the contract at issue are relevant to ascertainment of th e proper law (such
as a jurisdiction, arbitration or choice of law clause).
26.62 It seems preferable to accept that if the putative proper law is to be the
appropriate law to resolve any issue of agreement it is that which would apply if
agreement were established. However, this cannot work if there is more than one
potentially putative proper law depending on the content of the agreement (as, for
example, where there are two arbitration clauses at issue). In that case there is little
alternative to the law of the forum—if only on the ground there is no law with a greater
claim.110
ILLEGALITY
26.63 It seems accepted that a contract illegal by its proper law or , England being
the forum, by English law is unenforceable in England. 111 Further, it is arguable that a
contract illegal according to the law of the place of performance will not be enforced;
but, it is also said that such lack of enf orceability is restricted to cases where the proper
law would declare the contract unenforceable. 112
THE PRIMACY OF THE PARTIES’ CHOICE AND ITS LIMITATIONS ON THE
PARTIES’ CHOICE
26.64 In the traditionally accepted leading case establishing the supremacy of the
parties’ choice—the Vita Foods case113—it was said that the choice must be "bona fide
and legal". Such a limitation can be stretched or restricted almost at will and in a sense
obviously begs the question. Essentially, the limitations will be of two kinds:
(i) prohibition from evasion of a forum mandatory rule; 114 and
(ii) refusal to recognise the choice as to do so will lead to the application of a rule
or the reaching of a conclusion contrary to English public policy.
26.65 (i) The forum mandatory rule. The principle was applied by the House of
Lords in The Morviken 115 to the Hague-Visby Rules as enacted by the Carriage of
Goods by Sea Act 1971. The obligation specified in the rules (Article III, rule 8) not to
derogate from the liability of the carrier or the ship cannot be avoided by selection of a
law which would not apply the rules.
26.66 Parties may apply the Hague-Visby Rules as enacted in England to a contract
not within the boundary provisions of the rules (e.g. to a charterparty). If in the contract
they also opt for a law other than English law, any application of "English" rules to the
dispute by an English court can only rest on selection by the parties of the mandatory
rules despite the choice of law. In such an instance, the application of the English rules
is one of the construction of the contract rather than imposition by statute. The effect may
be simply to incorporate the English ver sion of the rules into a contract governed by a
foreign law.116
26.67 The choice of English law to govern a contract of carriage will only of itself
necessarily make the Hague-Visby Rules applicable if they are applied to the contract
mandatorily by that law. If it is a charterparty to which the rules are applied only by the
contract it is a question of construction whether they are applied. In 1990 in The
Komninos S117 it was held that a choice simply of "British law" did not apply the rules.
Concern has been expressed at the consequence of non -application of rules of either
English law (as applied to the contract) or Greek law (the other possible proper law)
which would have applied. However the decision seems correct. Unlike some
circumstances where neither of two identical domestic rules applied because of the
reference of different issues to the two laws, in this context the apparent gap is the need
in English law to specify a particular aspect of that law for it to operate.
26.68 (ii) Public policy. Public policy is as impossible to define in this context as
any other and represents the "fail safe" mechanism of the English choice of law process.
To some, particularly in the United States public policy should play a primary selective
role but, certainly in relation to the proper law, it should be construed as referring to
fundamental principles at the heart of the English system. 118
Where there is no selection—"closest and most real connection"
26.69 This concept has been expressed in terms of intention —i.e. the law that
reasonable businessmen would have intended to govern if they had thought about it. 119 It
is, however, preferable to move away from inferred intention and to assess the
connections objectively. Certainly that is the approach in recent cases. 120
26.70 The major criticism of the English approach is that it amounts to a numerical
totting up of contacts with the verdict going to the majority. With the rejection of any
presumption there is certainly a danger that in despair a court will base its conclusions
on quantity rather than weigh the contacts in the context of the transaction. 121 In Coast
Lines v. Hudig and Veder 122 Megaw L.J. emphasised that the focal point was t he
transaction and not the contract which formed the first part of the transaction. As a
consequence, he concluded that as the relevant transaction to the issue of the case was a
charterparty of an English ship dealing with activities of that ship the prop er law was
English. This approach is to be preferred rather than an approach which concentrates on
particular aspects of the contract itself or simply "weighs" without indicating the
relevance of that which is put in the scale. 123
Jurisdiction or arbitration agreement
SELECTION OF LAW AND JURISDICTION
26.71 A clause selecting a place of jurisdiction (or arbitration) and law will
operate as a selection of both. Further, English courts will not shrink from rejecting the
choice of a foreign court while upholding the choice of law. 124 An inference of choice
of law may be drawn from an arbitration of jurisdiction clause 125 but, subject to any
public policy issue, the validity of the clause depends on the law applicable to th e
contract.126
VALIDITY OF THE CLAUSE
26.72 An arbitration or jurisdiction agreement raises issues of formation, rights
and obligations and performance identical to a contract on a substantive matter. Such
agreements are, however, often part of a contract on a substantive matter. An arbitration
clause is separable from the substantive contract ( see Chapter 13). However, it would
be unusual for the validity of the arbitration or jurisdiction agreement forming part of or
attached to the substantive contract to be different from that contract ( see infra).
26.73 As indicated earlier whether an arbitration, jurisdiction or choice of law
agreement is valid is part of establishing the foundation for ascertaining the proper law
of the substantive contract. It was held by the Court of Appeal in The Parouth127 that
whether arguably there is a contract governed by English law so as to justify service of
a writ out of the jurisdiction is a matter for the putative proper law of the contract —and
that in identifying that law an arbitration clause should be taken into account. In 1981 in
The Atlantic Emperor the Court of Appeal was of the view that if The Parouth was
right the approach applied to a case in which the issue was confined to the validity o f
the clause rather than the contract as a whole.
26.74 Where the substantive contract is within the 1990 Act such an approach
would mean a reference to the law which would be applicable under the Convention to
the contract if the clause was valid and the issue was the law applicable to the
substantive contract. However, if the issue is the validity of the arbitration or
jurisdiction clause this would fall outside the Convention. If the law applicable to the
substantive contract depends at least in part on the validity of the arbitra tion or
jurisdiction clause this, it would seem, would have to be decided as a preliminary point
so as to identify the factors relevant to the selection of the applicable law under the
Convention.
26.75 The reference to the putative proper law will not wor k however where the
clause itself refers to more than one law nor where the issue is which of two or more
clauses are part of the contract. So in The Heidberg128 after an exhaustive examination
of the authorities Judge Diamond Q.C. applied English law as the lex fori to decide
whether either of two arbitration clauses were incorporated into a bill of lading —no
other law had been shown to have a greater claim. The alternative was to apply the
proper law of the bill of lading ignor ing either clause but as the learned judge pointed
out that is to assume what is at issue —for the arbitration clause is a valid factor in
deciding the proper law. The conclusion therefore seems as practical as it is justifiable —
particularly given that reference to foreign laws is in the end a matter of how much
control over an issue is to be surrendered by the forum. The basis for that surrender (or
transfer) must in practice be for the forum.
THE CONTENT OF ARBITRATION AND JURISDICTION CLAUSES
26.76 (a) Arbitration clause. In 1981 in Black Clawson International Ltd v.
Papierwerke Waldhof-Aschaffenburg AG (No. 2) 129 Mustill J. pointed out that in
relation to a contract containing an arbitration clause there are four relevant systems of
law:
(i) the law governing the substantive agreement to submit future disputes to
arbitration;
(ii) the law governing the agreement to arbitrate;
(iii) the law governing the contract to refer a particular matter to arbitration;
(iv) the law governing the arbi tral proceedings.
26.77 On the distinction between the differing laws, Mustill J. said:
"If this analysis proves correct, so that the individual contract to refer has a life
which is independent of, though springing from, the original agreement to arbitrat e future
disputes, it must follow that at least in theory the two sets of contractual relations may
be governed by different laws. It may be objected that this piles up the proper laws
absurdly high: we already have the substantive proper law, and the lex fori; to these we
must now add the proper law of the continuous agreement and the proper law of the
individual contract to refer. In practice, this objection is unlikely ever to arise. In the
great majority of the cases the same law governs all aspects of the matter. Where the
laws diverge at all, one will find in most instances that the law governing the continuous
agreement is the same as the substantive law of the contract in which it is embodied and
that the law of the reference is the same as the lex f ori."
26.78 However, it was clear, he said, that the individual contract to refer the matter
to arbitration and the original arbitration agreement could be governed by different
laws. Subject to mandatory provisions of the Arbitration Act 1996 the analysis remains
relevant. Most such provisions are concerned with the arbitration proceedings, some
applying only if the seat of the arbitration is in England, a few wherever the seat is 130
and two wherever the seat, if the law applicable to the arbitration agreemen t,131 is
English law. 132
26.79 (i) The law governing the substantive agreement. The selection of an
English arbitration is a "strong indication" of a selection of English law as the law
governing the substantive agreement. The clause must be construed with the rest of the
contract but it will require strong contrary evidence to displace the conclusion that
choice of place of arbitration is not also choice of law. 133 However, where the
arbitration provides for "a dual situs" (i.e. one of two places) the indication that both
laws are to apply is "much less strong". No inference can be drawn as to the proper law
simply from the provision as to the place of the arbitration. 134
26.80 (ii) The law governing the agreement to arbitrate. While this may be
subject to a law different to that governing the substantive agreement 135 it is likely to be
the same.
26.81 (iii) The law governing the agreement to arbitrate a particular dispute. In
most cases where this differs from the law governing the substantive contract it will be
identical with that governing the proceedings —but it is all a matter of construction.
There may, however, be an ad hoc agreement superseding the continuing agreement,
particularly where the continuing agreement is void. The ad hoc agreement may be
subject to a different law to the continuing agreement. 136
26.82 (iv) The law governing the proceedings. This need not be apparent at the
time of the agreement in respect of o ther than applicable mandatory provisions of the
Arbitration Act 1996—there can be a floating curial law. 137 This will normally be the
law of the place of proceedings but a different selection could be upheld 138—although
this amounts to allowing choice of procedure, contrary to the normal rule that procedure
is for the forum. It may well be that a court will strain to construe such an agreement as
being a selection of the place of arbitration with the incorporation of consistent
provisions of the other law. 139
26.83 (b) Jurisdiction clause. The relationship between the proper law and a
jurisdiction clause may be analysed in the same way as the proper law and an
arbitration clause. While a jurisdiction clause is strong evidence of the proper law of
the contract of which it is part, it is not of conclusive effect. 140 It is arguable, as with an
arbitration clause, that the clause itself is subject to the proper law to be gathered from
the contract as a whole, or arguably governed by its own proper law.
26.84 Where a party takes proceedings pursuant to a jurisdiction clause, unlike an
arbitration clause there is not likely to be a separate agreement to submit a particular
matter apart from the clause in the contract. Proceedings taken under a jurisdictio n
clause will be governed by the law of the forum. The Contracts (Applicable Law) Act
1990
26.85 The law applicable to a contract entered into on or after 1 April 1991 (if
within the Convention) is to be identified in accordance with the criteria of the Rome
Convention on the Law Applicable to Contractual Obligations 1980 (as amended) as
enacted in the 1990 Act. 141 Save for insurance contracts covering risks in the European
Union,142 if the issue falls outside the Convention it will remain subject to the criteria in
operation prior to the Act. The Convention adopts as its basic principles those in force
in English law (though with different terminology) —the choice of the parties and,
lacking choice, the law of the country most closely connected with the contract.
26.86 In addition to special protective provisions in respect of consumers and
employees the Convention differs from the common law in adopting, where there is no
choice of law by the parties, the "characteristic performance" of the contract as the focal
point for identifying the governing law and rebuttable presumptions of the applicable
law as the law of the place of residence or of the party undertaking that performance. As
with the common law renvoi is excluded.
26.87 Special mandatory protection is accorded to consumers under certain
consumer contracts 143 and individual employment contracts and effect of a choice of
law by the parties is qualified. 144 If there is no choice (a) in specified circumstances the
consumer contract is governed by the law of the country of the consumer’s habitual
domicile; (b) an individual employment contract is governed by the law of the place of
habitual work or, if there is no such law, that of the place of business through which the
employee was engaged. 145
26.88 Apart from provisions relating to the application of mandatory rules of
foreign law, rather than the law applicable to the contract an d issues of nullity, the
Convention is given the force of law in the United Kingdom and applies whether or not
the law applicable is the law of a contracting State. 146 It is subject to the interpretation
of national courts and, since 1 March 2005 when the appropriate Protocols came into
force, the European Court of Justice. 147
Matters excluded from the Convention
"1. The rules of this Convention shall apply to contractual obligations in any
situation involving a choice between the laws of different countries.
2. They shall not apply to:
(a) questions involving the status or legal capacity of natural persons, without
prejudice to Article 11;
(b) contractual obligations relating to:
wills and succession,
rights in property arising out of a matrimonial relationship,
rights and duties arising out of a family relationship, parentage, marriage or
affinity, including maintenance obligations in respect of children who are not legitimate;
(c) obligations arising under bills of exchange, cheques and promissory notes and
other negotiable instruments to the extent that the obligations under such other negotiable
instruments arise out of their negotiable character;
(d) arbitration agreements and agreements on the choice of court;
(e) questions governed by the law of companies and other bodies corporate or
26.85 The law applicable to a contract entered into on or after 1 April 1991 (if
within the Convention) is to be identified in accordance with t he criteria of the Rome
unincorporated such as the creation, by registration or otherwise, legal capacity, internal
organisation or winding up of companies and other bodies corporate or unincorporated
and the personal liability of officers and members as such for the obligations of the
company or body;
(f) the question whether an agent is able to bind a principal, or an organ to bind a
company or body corporate or unincorporated, to a third party;
(g)the constitution of trusts and the relationship between settlers, trustees and
beneficiaries;
(h)evidence and procedure, without prejudice to Article 14.
3. The rules of this Convention do not apply to contracts of insurance which cover
risks situated in the territories of the Member States of the European Economic
Community. In order to determine whether a risk is situated in these territories the court
shall apply its internal law.
4. The preceding paragraph does not apply to contracts of re -insurance."148
Insurance contracts covering risks in the European Union
26.90 The regime was initially set out in the Insurance Companies Act 1982 (as
amended) and the Friendly Societies Act 1992 (as amended) and since 1 December
2001 is contained in the Financial Services and Markets Act 2000 (Law Applicable to
Contracts of Insurance) Regulations 2001. 149 It implements European Union Council
Directives on Insurance and, in particular in relation to the applicable law, Article 7 of
the Second Directive. 150 The regime is similar to that of the Convention with
qualifications necessary to achieve the aim of protection of policy holders. 151 It is
summarised after consideration of the Convention.
Matters within the Convention
26.91 Save for the exceptions specified, the Convention applies to "contractual
obligations" in any situation involving a choice between the laws of different countries
(Article 1). Approaching the Convention from a broad internationalist angle that
includes the aspects of assignment set out in Article 12 ( see 26.36) and, it would seem
on the principles there applied, subrogation (Article 13) ( see 26.94). Apart from
arbitration and jurisdiction and within 1(3) insurance agreements few matters directly
relevant to maritime contracts will fall outside the 1990 Act. Problems of classification
(whether a matter is contractual or falls into some other category such as tort or
property) will remain but construing the Convention scope broadly.
26.92 Many of the exclusions relate to matters which, although they may involve
contract, may be seen as essentially within another legal category —such as, for
example, legal capacity, company law, trusts and negotiable instruments. It is for this
general reason that the consequences of nullity of a contract are excluded —in English
law they are seen as matters of restitution. Conversely where excluded matters are seen
as contractual the common law principles will apply. So the pre Act contract rules will
apply to contracts of arbitration or jurisdiction, capacity to enter a contract, whether an
agent can bind a principal and such other contract issues as may arise in an y of the
excluded matters. Bills of lading would be excluded only if classified by the forum
(either by the lex fori or law applied) as negotiable instruments—not simply as creating
a transferable obligation.
The Convention rules
26.93 Subject to provisions relating to mandatory provisions of national laws,
ordre public and protection of consumers and employees and some specific
qualifications, the Convention law applicable to the contract will be (a) if demonstrated
with reasonable certainty the law chosen by the parties or (b) if there is no choice the
law of the country with which the contract is most closely connected (Articles 3, 4 —see
26.99).
ASPECTS OF THE CONTRACTS SUBJECT TO APPLICABLE LAW
26.94 It applies specifically to material and formal validity (with alternative
applicable laws), interpretation, performance (with qualification), consequence of
breach and extinction and limitation of claims, and rules of presumption or burden of
proof and (not enacted in the United Kingdom) the consequences of the nullity of a
contract. In relation to "the manner of performance and the steps to be taken in the event
of defective performance" "regard is to be had to the law of the country of
performance".
THE LAWS TO BE APPLIED IN ADDITION TO OR SUBSTITUTION FOR THE
LAW GENERALLY APPLICABLE
26.95 The existence and material validity of any choice is to be determined by the
law applicable if it were valid but if it is not reasonable to use that law to adjudge the
conduct of a party, that party may rely on the law of his habitual residence (Article
8).152 The formal validity of a contract is to be governed (subject to consumer contracts
and some contracts relating to immovables) by the law applicable if it were vali d or,
depending on whether parties are in the same or different countries when concluding the
contract, the law of the country in which it is concluded or the country in which either of
the parties is (Article 9(1), (5), (6)).
26.96 An act intended to have legal effect in respect of an existing or contemplated
contract is formally valid if it satisfies the law governing the contract or the law of the
country where it was done (Article 9(4)). Where a contract is concluded by parties in
the same country incapacity by a different law may be raised only if the other party was
aware or negligently unaware of it.
26.97 It is difficult to see how regard is to be had in relation to the manner of
performance and steps to be taken in the event o f defective performance unless that law
is to be applied at least in the sense that nothing inconsistent with that law should be
permitted. More, despite the relative vagueness of the phrase in comparison with other
provisions it would seem to confer a dis cretion on a court to consider if the law of the
place is more relevant than the generally applicable law to the matters specified. It
makes it easier to apply the law of the place of performance as the law governing a
severable part of the contract.
26.98 Third party rights. The mutual obligations of assignor and assignee under a
voluntary assignment of a right against a debtor is governed by the law applicable to the
contract between the assignor and assignee. "The law governing the right to which the
assignment relates" determines its "assignability, the relationship between the assignee
and the debtor, the conditions under which the assignment can be invoked against the
debtor and any question whether the debtor’s obligations have be en discharged"
(Article 12).153 Whether or not this provision is relevant to priority of competing claims
by two assignees seems uncertain as the priority necessarily involves the relationship of
each assignee and the debtor.
26.99 Subrogation. The law governing a third person’s duty to satisfy the creditor
in relation to a contractual claim determines whether the person paying is entitled to
exercise against the debtor the rights of the person satisfied under the law governing the
relationship of creditor and debtor (Art. 13). “Mandatory rules”
26.100 The effect of a mandatory rule is to override the general selection
principles of choice and close connection. Whether a rule is "mandatory" must be a
matter initially for the enacting country. Where it is a rule of a state other than the forum,
the courts of the forum will have to decide whether in its national role the rule is
"mandatory". The Convention provides for the application of mandatory rules:
(i) 154
despite choice of a foreign law, the rules of another country which cannot be
derogated from by contract when "all the other elements relevant to the situation at the
time of the choice" are connected only with that country (Article 3.3)
(ii) of the forum "in a situation where they are mandatory irrespective of the law
otherwise applicable to the contract" (Article 7.2)
(iii) of a country other than that of the law otherwise applicable if that country has
a close connection and the rules would be there applied wh atever the law applicable to
the contract155 (Article 7.1).
26.101 The purpose of the Article is to prevent contracting out of compulsory rules
with (iii) extending the concept beyond forum law or the law applicable. The United
Kingdom has enacted (i) and (ii) but not (iii). In none of these contexts is there a
positive Convention obligation to apply the mandatory rule. As to (i) to apply the
"mandatory rule" the choice of the parties "shall not prejudice" the application of the
mandatory rule, in (ii) "nothing in the Convention" restricts the application of such a
rule and in (iii) "effect may be given" to the rule in the light of its nature and purpose
and the consequences of its application. There is little doubt that (in (ii)) a forum would
apply its own mandatory rule (as, for example, the House of Lords did in The
Morviken156 in applying the Carriage of Goods by Sea Act 1971). Application of a
foreign mandatory rule under (i) is discretionary taking into account the factors
expressed and under (ii) appears to be at the general discretion of the forum court.
26.102 The Convention creates no change in English law in respect of the concept
and application of forum mandatory rules save the general principle is expressed. On
the other hand while the foreign mandatory rule applicable under Article 3(3) could in
theory have been applied prior to the Convention as a limitation on choice based on
"public policy", this would have been highly unlikely, the concept of such policy being
almost exclusively policy of forum law. 157 “Ordre public” (Article 16)
26.103 The application of a rule of the law of any country may be refused "only if
such application is manifestly incompatible with the public policy (‘ ordre public’) of
the forum". This simply applies the established negative limitation on the general
selection principles. It is expressed in narrow and strict language. As with the domestic
"public policy" reservation there is no provision for any further consequential enquiry
into any other appropriate foreign law.
THE CHOICE OF THE PARTIES (ARTICLE 3)
26.104 The existence and validity of the choice is governed by the Convention
rules relating to material and formal validity ( see supra). The choice must be express or
demonstrated with reasonable certainty. It may go to the whole or a part only of the
contract. The choice may subject the contract to a law other than that earlier governing it
whatever the basis on which that law governed the contract.
26.105 It is certainly arguable that as the parties may "at any time" agree to a
change, the change may be subsequent to or part of the initial agreement. This does not
seem to authorise a floating choice but the ability to contract for a change in the
selection, for example, at the carrier’s option. 158
Implied choice
26.105A Both express and implied choice are thereby recognised, but it is not
permitted to attempt to read the minds of the parties to assess a selection that would
have been made if it had been considered. The choice may be inferred from the terms of
the contract.159 An arbitration clause may, as in English law, indicate a choice of law if,
for example, not only the place but the nature of the tribunal or the backgro und of the
contract including the clause points to a particular law. It has been held that, if in that
regard there is a difference in emphasis from English law, "it is a small one". 160 That
conclusion seems justified with the criterion of "reasonable cert ainty" providing an
express focus for the approach.
THE LAW GENERALLY APPLICABLE WHERE THERE IS NO CHOICE
(ARTICLE 4)
26.106 Subject to the exceptions considered above, where there is no choice
within Article 3 the law applicable to the contract is that of the country with which it is
most closely connected. Subject to specified exceptions and another country appearing
more closely connected, the general presumption is that the law most closely connected
is, if the characteristic performance can be determin ed, that of the country in which the
party who is "to effect the performance which is characteristic of the contract" has his
habitual residence or, if a corporation, its central administration. As an exception to the
general rule a severable part of the c ontract which has a close connection with another
country may be governed by the law of that country (Article 4(1)(5)).
Exceptions to the general presumption
26.107 These are:
(i) if the contract is entered into in the course of the trade or business of th e party
effecting the characteristic performance, the country most closely connected is presumed
to be that of the principal place of business or where the performance is to be effected
in a place of business elsewhere, the country in which that place is situated 161 (Article
4(2)); (ii) to the extent the subject of the contract is a right in or to use immovable
property the country presumed most closely connected is that in which the property is
situated (Article 4(3));
(iii) in respect of a contract for the carriage of goods 162 the general presumption
has no application—the only presumption which operates to identify th e law most
closely concerned is that of the law of a country (a) in which when the contract is
concluded the carrier has its principal place of business and (b) which is either the
place of loading or discharge or the principal place of business of the con signee
(Article 4(4)).
The general and exceptional presumptions are to be disregarded if it appears from
the circumstances as a whole the contract is more closely connected with another
country (Article 4(5)). Where the characteristic performance cannot be determined the
assessment of the "connection" is therefore at large. Although theoretically and literally
if closer connection to another country is the reason the assessment is also at large
(including the country "disregarded") it is highly likely that the close connection will
supply the link to the applicable law.
26.108 While the selection of the governing law is on its face according to a
criterion identical to that of English law prior to the Act, the method and emphasis on
primarily relevant factors of selection are different. As indicated earlier, under English
law outside the Convention the weighing of various and unspecified types of connecting
factors had some of the appearance of a lottery depending on the importance given by
any particular court to any particular link. The approach was in direct contrast to that of
selection by single factors as, for example, the place of the contract or the place of
business of the parties. The Convention adopts a middle line of presumptions —to be
"disregarded" in specified circumstances. That, it may be said, a more satisfactory
approach than either of the extremes. It provides a startpoint but allows for that to be
overridden.
26.109 More fundamentally perhaps is that save for immovable property the initial
focus is on the place of the party whose performance lies at the heart of the contract.
There is no relevance of inferred intention as to contractual relations or the governing
law or any of the other links taken as relevant in the common law approach. 163 So the
difference in approach may in practice be more marked than it would seem on the
surface.
26.110 Whatever the difference between the English and Convention approach the
distinctions in approach give focus to the enquiry. There is introduced first the concept
of "characteristic performance", 164 secondly the approach by rebuttable presumption,
thirdly the importance given as a presumptive principle to the residence or place of
business of the party undertaking the critical obligation under the contract, and fourthly
the presumptions applicable to contracts relating to immovable property and carriage of
goods.
Performance characteristic of the contract
26.111 The focus on this concept resolves the preliminary question of whether that
which is to be linked to a law is the contract as a whole or the particular issue before
the court. There may be difficulties in ascertaining the performance but it is concept
which makes sense in that it focuses selection on the heart of the contract. Ther e is
recognition that it may not be discoverable, but, if it is, it provides the focal point
lacking in the law outside the Convention.
26.112 The concept was new to English law. It is said in the Report on the
Convention that such performance will not nor mally be that of a party providing
monetary worth for some act (service or provision of goods). However, this does not
necessarily resolve the identification of the central obligation of contracts solely
concerned with the provisions of funds or credit. Th ese must be analysed to identify the
focus of the contract.
26.113 The presumptions. Again it may be argued that because the presumptions
are to be disregarded if it appears that the contract is more closely connected to another
country little has changed. But, as with the characteristic performance, the presumptions
provide a startpoint for enquiry. It will require positive evidence of connection to
prevent their application and they prevent the type of case arising where it is difficult to
evaluate numerous connections pointing in different directions. They reflect the
emphasis on residence of the party on whom the critical obligation falls —much as the
European jurisdiction regimes adopt the domicile of the defendant as the generally
applicable rule of jurisdiction.
26.114 Until 2002 there was some uncertainty as to the strength of the
presumptions, with, possible supporters of the "weak" school harking back to the
common law approach. 165 It is now settled in English law at Court of Appeal level that
the exception in Article 2(5) is to be applied restrictively. So as regards Article 2(2) it
is only where circumstances "clearly demonstrate" "the existence of connecting factors
justifying the disregarding of the presumption.
26.115 The Convention approach is well illustrated by the decision of Mance J. in
1994 in The Bank of Baroda v. The Vysya Bank Ltd166 In the context of a writ sought to be
served out of the jurisdiction the issue was the law applicable to a contract between the
bank issuing a letter of credit (in India) and the bank confirming the credit (in
England). It involved the consideration of the presumption of Article 4(2) (place of
residence, business or incorporation) and the justifiability of applying Article 4(5)
because the circumstances as a whole pointed elsewhere. Also relevant to the law
applicable to the contract between the banks were the contracts between the beneficiary
and each bank. Mance J. agreed with the general principle that the place of residence of
Article 4(2) would easily be rebutted where the place of performance was elsewhere.
He held that the performance characteristic of the contract between the banks was the
confirmation and the honouring of the obligation of the issuing bank to the benefic iary,
rather than the obligation of the issuing bank to reimburse the confirming bank —the
latter was consequential on the character of the contract. By Article 4(2) of the
Convention on the facts the presumption therefore was that of English law and the
ground established for service of the writ out of the jurisdiction.
26.116 Mance J. also dealt with the law applicable to the contracts between the
banks and the beneficiary, pointing out that it would be impracticable and uncommercial
if contracts relating to the same credit were subjected to different laws. The contract
between beneficiary and confirming bank was clearly subject to English law (whether
by Article 4(2) or Article 4(5)) but by Article 4(2) of the Convention the contract
between beneficiary and issuing bank was subject to the law of India (the place of
incorporation of the issuing bank). However the escape route from the presumptions
(Article 4(5)) was applied to select English law (the law of the place of payment). And
this, it was held, would be so whether the credit was confirmed or not. The law of the
place of performance was the appropriate law to apply. While this conclusion is clearly
right in respect of letters of credit, the place of performance should not be though t
always to apply—it will depend on the issue. 167
26.117 This approach to letters of credit was confirmed and underlined by the
Court of Appeal in 2005. 168 The Court held that the presumption of Article 4(2) would
usually be displaced as regards the beneficiary and confirming bank where the
documents were to be presented and payments made by an advising bank in another
jurisdiction. Further, the presumption could not apply to a letter of credit as a
transaction because of the number of bilateral contracts involved. It was desirable that
the same system of law should apply to all and that was the place of presentation of the
documents and payment made.
Insurance contracts covering risks in an EEA State 169
26.118 Subject to qualifications and mandatory rules 170 the applicable law for
contracts of general insurance 171 is the law of the EEA State in which the policyholder
resides172 or if permitted by that law, the choice of the parties. Where the p olicyholder
does not reside in an EEA State the parties may choose the law of the State in which the
risk is situated or the country of the policyholder’s residence and exercise any greater
freedom of choice conferred by such law.
The basic rules are qualified by the ability to select any law if the contract is
concerned with a large risk, or if the contract refers to events in an EEA State other than
that in which the risk is situated, the law of that State.
Lacking effecting choice, the applicable law is the law of the State referred to in
the provision applicable to the case which is most closely connected with the contract,
rebuttably presumed to be the State in which the risk is situated. 173 Subject to the
particular provisions the 1990 Act applies. 174
There are therefore three basic departures in principle from the Convention
framework, consequential on the underlying aim of protection of the policy holder. First,
where relevant, the residence or central a dministration is that of the insured and not of
the insurer. Secondly, the scope for selection by consent is limited and thirdly the
presumptive link is simply "rebuttable" without any specified exceptions. 175 (b) Tort
26.119 As in other areas, questions of procedure are referred to the forum. The
traditional English choice of law rules relating to substantive issues in tort were (to
some extent) hardly defensible in a legal system which admits a choice of law process.
First, foreign law became relevant only to a tort committed outside England. Secondly,
until recently even if the tort is committed out of England, English law largely
controlled. As regards the latter there were some judicial inroads and the Private
International Law (Miscellaneous Provisions) Act 1995 has from 1 May 1996 rid the
approach of this application of English law as such rather than because of its connection
with the dispute. The focus of the governing law is now on the place of injury or da mage
or a country having a significant connection with the issue ( see p. 668). (i) Torts
committed in England
26.120 Apart from the 1995 Act English law applies 176—but whether on the same
or a different basis as the rule applicable to tort on foreign terri tory seems uncertain
(see below). (ii) Torts committed on the high seas
(a) Acts occurring on board one ship
26.121 There seems to be no English authority, but on principle the relevant
foreign law is the law of the country of registration of the ship. I t follows that so far as
the relevant choice of law framework is concerned the situation does not differ to that in
which a tort is committed on land, 177 the ship being foreign territory.
(b) More than one ship involved
26.122 It is established that the "general maritime law" (i.e. English law)
applies.178 While the fact that a tort is committed at a place not within any country gives
the circumstances a particular character, it is difficult to defend the automatic
application of English law. Wrapping English law in general maritime clothes perhaps
illustrates that its application as English law could be attacked, but it does nothing to
conceal the body. (iii) Torts committed on foreign land or waters —prior to 1969 179
26.123 Prior to 1969 and the decision of the House of Lords in Boys v. Chaplin180
there was no doubt that to succeed in England in an action based on a tort committed in
another country in regard to substantive issues a plaintiff had to overcome two hurdles.
Proof was required that:
(i) the act would have been actionable if committed in England; and
(ii) the act was not justifiable (or actionable) according to the law of the place
where the tort was committed.
26.124 The rule reflects a primitive view of the role of En glish law in a case
involving a foreign element. Instead of searching for a "governing law" this choice of
law rule referred to foreign law only as a preliminary hurdle for a plaintiff. As a result,
a plaintiff must satisfy the criteria of two legal systems and English law would not
recognise a tortious liability "in respect of an act which according to its own principles
imposes no liability on the person from whom damages are claimed". 181
26.125 This approach comes close to denial of a process aimed at se lection of a
governing law dependent on close connection with an issue. The traditional rule in the
United States was to refer the question to the law of the place of the act. Such a rule at
least recognises the "reference" role of a choice of law process, but has its own defects.
Apart from the difficulty of selecting a place, the place may be entirely coincidental or
at the least have little contact with the issue.
26.126 Since 1963 courts in the United States have moved towards an approach
similar in some respects to that adopted in England to contractual issues —"the centre of
gravity" approach. According to the original judicial expression of this approach
reference is to be made "to the law of the jurisdiction which be cause of its relationship
or contact with the occurrence or the parties has the greatest concern with the specific
issue raised in the litigation". 182
26.127 Somewhat similar, but less precise in its criteria, was an English
suggestion in 1949 that the English rule should give way to the "proper law of the tort",
i.e. an adaptation of the rule in contract by reference to law of the place "with the most
significant relationship to the occurrence and the parties". In Boys v. Chaplin,183
however, the House of Lords failed to take the opportunity to move away from the
traditional "double-barrelled" rule. Worse, each member of the House followed his own
track with the result that tradition was maintained primarily through lack of any positive
move away from it.
Boys v. Chaplin and its consequences
26.128 Following Boys v. Chaplin, in considering an action based on an act done
abroad, The English court would:
(i) continue to refer all "procedural" matters to English law as the law of the forum
(matters of quantification of damage being a "procedural" matter for this purpose); 184
(ii) require the plaintiff to prove that civil liability would ensue under the law of
the place of the act;
(iii) require the plaintiff to prove that the act would have been actionable in
English law.
26.129 Although in the case the majority retained the traditional approach and Lord
Hodson applied the most significant relation ship test, Lord Wilberforce, having
approved that approach as a general, qualified its application. In his view in a
particular case in respect of the foreign rule applicable it was necessary "to identify the
policy of the rule, to enquire to what situation with what contacts it was intended to
apply; whether or not to apply it in the circumstances of the instant case would serve
any interest which the rule was devised to mee". 185
26.130 The exception created by Lord Wilberforce was recognised by text book
writers186 and applied in two subsequent cases. 187
26.131 In 1993 the Privy Council affirmed the general "double actionability" rule
but applied "the most significant relationship" to exclude the lex fori—and held that it
could apply to the whole claim (and not merely one issue as in Boys v. Chaplin) if all
or virtually all the significant factors pointed to the law of the place of the occurrence.
In this case such factors all pointed to Saudi Arabia. 188
26.132 There seems little doubt that English law in this respect was on the familiar
route of judicial step by step reform (as, for example, occurred in the acceptance of
forum non conveniens as a doctrine). One of the problems of this type of self -imposed
judicial limitation is that the cost of reform is laid at the door of litigants and each step
creates the uncertainty of the next step. But that is not to deny an unqualified welcome to
the move away not only from double actionability but, at last, from E nglish law as
always controlling. This approach continues to be relevant in respect of any claim
based on events prior to 1 May 1996. 189 Statutory reform
26.133 The judicial development found its way into and is itself developed by
statute through the Private International Law (Miscellaneous Provisions) Act 1995. In
respect of acts or omissions occurring after 1 May 1996 the rules of common law
requiring double actionability and as an exception allowing "the law of a single
country" to be applied are abolished. In their place is put the following:
"11.—(1) The general rule is that the applicable law is the law of the country in
which the events constituting the tort or delict in question occur.
(2) Where significant elements of those events occur in different countries, the
applicable law under the general rule is to be taken as being —
(a) for a cause of action in respect of personal injury caused to an individual or
death resulting from personal injury, the law of the country where the individual was
when he sustained the injury;
(b) for a cause of action in respect of damage to property, the law of the country
where the property was when it was damaged; and
(c) in any other case, the law of the country in which the most significant element
or elements of those events occurred.
(3) In this section ‘personal injury’ includes disease or any impairment of physical
or mental condition.
12.—(1) If it appears, in all the circumstances, from a comp arison of—
(a) the significance of the factors which connect a tort or delict with the country
whose law would be the applicable law under the general rule; and
(b) the significance of any factors connecting the tort of delict with another country,
that it is substantially more appropriate for the applicable law to be the law of the
other country, the general rule is displaced and the applicable law is the law of that
other country.
(2) The factors that may be taken into account as connecting a tort or delict with a
country for the purposes of this section include, in particular, factors relating to the
parties, to any of the events which constitute the tort or delict in question or to any of the
circumstances or consequences of those events."
26.134 The substitution of the rules of sections 11, 12 for the double actionability
rule is to apply to events occurring in the forum as it applies to events in another
country. However the introduction of sections 11, 12 is limited to the abolition of
double actionability and any exception. 190
26.135 Whether the provisions apply to a tort committed in England depends
therefore on the basis of the pre-statute rule that English law was solely applicable.
About that there must be considerable doubt, it being said that that rule had no
application to a tort committed in England ( see fn. 151). Further, the new approach does
not apply to torts at sea involving more than one ship —an exception difficult to justify.
The forum mandatory rule
26.136 Apart from the statutory reform and apart from the application of the most
significant relationship exception English law applies to all tort actions before English
courts. It is specified in the Private International La w Act that the reform is without
prejudice to any mandatory rule (section 14(4)). The context of the applicable English
law
26.136A English law (particularly statute) does not necessarily apply to acts
outside England as it does to acts within England.
Torts on the high seas involving more than one ship
26.137 Even after the 1995 Act in proceedings before English courts English law
alone applies to all torts occurring on the high seas involving more than one ship. The
only issue as to the applicability of a statutory provision of such torts is therefore
whether, considering the purposes of the provision, it applies to the tortious act (i.e. is
within the boundary rule). So, for example, in The Esso Malaysia 191 the court had to
decide whether the Fatal Accidents Act applied to a collision on the high seas.
Torts in foreign territory or on board a foreign ship
26.138 Where a tort occurs on foreign land or waters or on board a foreign ship
the applicability of an English legislative provision will first depend on whether the
circumstances fall within the provision (i.e. the boundary rule). Assuming that the
provision by its terms is applicable the second issue is whether it is mandatory. If not it
will apply, apart from the 1995 Act as part of the applicable English law 192 and under
the 1995 Act only if according to its criteria English law is applicable.
English statutory implementation of maritime international provisions
26.139 The exclusive applicability of English statutory frameworks reflecting
international Conventions outside English territorial waters has tended to be assumed 193—
probably because of the relevance of English law to all issues of tortious liability.
Given that the statute by its terms applies, it forms part of English law applying to the
high seas where more than one ship is involved. Whether it applies to the high seas
where only one ship is involved or to foreign waters is, as was said above, a matt er of
construction. In this context applicability may be supported if the statute is based on an
international Convention.
26.140 Included in the statutory provision of international rules relating to tortious
liability are:
(i) the rule as to division of loss where more than one ship is to blame for a
collision enshrined initially in the Maritime Conventions Act 1911; 194
(ii) the statutory limitation of liability framework (if not procedural) ( see Chapter
24);
(iii)the Collision Regulations. 195
26.141 The International Collision Regulations apply to "all vessels upon the high
seas and in all waters connected therewith navigable by seagoing vessels". They are
applied by statutory instrument to United Kingdom ships wherever they may be and to
other ships within the territorial waters of the United Kingdom. 196 Within the ambit of
the Order the first question is whether the regulations constitute a mandatory rule, for if
the English regulations are not mandatory there is no reason why the general conf licts
approach should not apply.
26.142 In 1973 The Esso Brussels 197 the Court of Appeal held that the Collision
Regulations applied within Belgian territorial waters only through Belgian law —
apparently on the basis that the law of the place of the collision governed the issue.
However, there are many cases in which the regulations have been applied simply on
the basis that the collision occurred in waters connected with the high seas and there fore
within the boundary rules of the regulations. 198 Neither in The Esso Brussels nor in the
cases applying the regulations directly did the court approach the question on the basis
of the accepted choice of law framework for tortious issues; and in no case did the court
refer to the imposition of the regulations through a mandatory legislative provision.
Apart from the 1995 Act:
(i) the regulations themselves and the statutes under which they are made set out the
limitations of their application 199 (the boundary rules);
(ii)by general choice of law rules civil liability stemming from an event in foreign
waters depends on actionability under foreign law and (assuming that it had occurred in
England) English law;
(iii) where an English mandatory rule is applied to foreign waters or a foreign ship
on the high seas it is arguable that it excludes foreign law. If so, and the Regulations are
mandatory, in The Esso Brussels it was wrong to hold that the Collision Regulations
applied only through Belgian law. 200
26.143 Under the 1995 Act in relation to the governing law of tortious matters the
issue of the applicability remains but in a different form. In relation to a ship of a
foreign country not within the regulations the first question is, as before, whether the
English regulations are mandatory —if not and the act occurred in foreign territorial
waters the foreign law applies unless displaced because of significant facts point ing
elsewhere. (c) Restitution or unjust enrichment The nature of claims within the
“category”
26.144 In English law restitution —once known more artificially as " quasi
contract" and perhaps more accurately unjust enrichment —tended at one time to be
more a label of desperation than a term of definition. Under it would be found claims
which do not spring from tort or contract. The use of "unjust enrichment" at least
describes the ground of claim whereas "restitution" may indicate too narrowly a claim
for restoration of some interest lost. "Quasi contract" indicates nothing at all.
26.145 As might be expected from its general development pattern, in English law
the claims which may fall within "unjust enrichment" or restitution have developed
piecemeal. So recovery of money paid by mistake or fraud (including tracing into the
hands of their parties), the consequences of the invalidity of a contract, or illegality or
duress on the validity of contracts, the right to contribution between wrongdoe rs, the
relief from unreasonable bargains and in maritime law payment for salvage services
have tended to develop as heads of claim, distinct in nature rather than as application of
any general principle. However "restitutionary claims" now seem recognised as having
a common theme.201
26.146 "Restitutionary" claims are recognised as a domestic category —although
the boundaries are still being worked out. 202 As with other domestic categories it may
then become a basis for the selection of governing law. Such claims are almost by
definition "non-contractual", and a restitutionary claim based on invalidity of a contract
has been held not to be a claim "relating to a contract" for t he purposes of jurisdiction
under the Brussels Convention. 203 The concept is given further shape with the
recognition that the basis of the claim is unjust enrichment at the expense of the plaintiff
and that change of position is a good defence. 204 There remains, however, in each case
the issue whether the restitutionary claim creates a proprietary interest or is simply a
claim in personam 205—a matter directly relevant to identifying the governing law.
Further the relationship between tort, contract, property and restitution remains open to
debate.206 Any uncertainty as to the boundary of the category must be reflected in its
application as a foundation for identifying the governing law. So classificatio n remains
as the first and fundamental step, and, as applies generally, part of that process may be a
distinction drawn between a claim itself and the question of priority of a particular
claim.207 The governing law
26.147 The identification of rules for a ssessing the governing law in relation to
unjust enrichment in general remains speculative. 208 Dicey and Morris suggest that it is
the proper law which is the focus—if the claim arises out of a contract, the proper law
of the contract and in any other circ umstances (save that involving an immovable) the
law of thecountry where the enrichment occurs. 209 This has been judicially applied
through the general principle that the proper law of any restitutionary claim based on
receipt is the country in which the receipt takes place. 210 Whether, however, this should
be taken necessarily to be the governing law is perhaps open to the same type of
objection as a single factor rule applying to contract. The place of performance does not
have the same dominant force as for a commercial credit, for the place of receipt may
be as transitory as the payment of funds. The substance of the enrichment may have a
quite different focus and it is certainly arguable that in many cases it will have mo re of
the character of property than tort or even contract.
26.148 Whether or not a restitutionary claim is based in domestic law on a
proprietary interest such as a trust, where it is an assertion of entitlement to restoration
it is arguable that its "property" element should control. That, it is suggested, should
lead to the law of the place of that which is claimed rather than the place of the
enrichment. Even if the unjust enrichment is not so much "restitution" of a claim as a
claim to a benefit (as, for example, for salvage) and is seen simply as a claim in
personam the law of the place of the unjust enrichment seems to have less to offer than
an analogy to a contract claim. There seems no reason not to apply the proper law
approach—if desirable, qualified by presumptions. Maritime claims —general average
and salvage
26.149 Dicey and Morris suggest that, as regards general average and salvage,
maritime law has worked out its own rules of governing law, and as regards general
average has adopted an international structure in the York-Antwerp Rules, thereby
avoiding conflicts problems. It is true that bills of lading and charter -parties almost
invariably incorporate the York-Antwerp Rules (a new text coming into operation on 1
January 2005) but it does not follow that no issues remain as to the governing law as
respects general average. And it certainly is not the case that salvage claims are
somehow immune from problems of identifying the law which governs them.
26.150 Either contract or unjust enrichment may form a basis for claims in salvage
and general average. There is a readiness in courts to intervene on the grounds of
"injustice" in sal vage agreements where the agreements are regarded as
unconscionable.211
General average 212
26.152 A general average claim may be based on contract —either as part of the
contract of carriage or based on an average bond —or on unjust enrichment.
(i) CONTRACTUAL
26.153 Contract of carriage and adjustment of average. The proper law of (or
within the Rome Convention the "law applicable" to) a charterparty, bill of lading or
other contract of carriage will apply to resolve the validity of a general average clause.
However, apart from the Rome Convention, it is not necessarily (or perhaps even
presumptively) the case that the law which will govern the adjustment of average is that
governing the contract. 213 A specific choice of law to govern the adjustment 214 will be
recognised as with any other express choice. Lacking that, it appeared accepted that the
governing law was the law of the port of destination. 215 Where there is a reference to
the York-Antwerp Rules this will be recognised but when, as usual, the reference is
coupled with adjustment at the port of destination it will follow that the rules as
interpreted at that place will apply.
26.154 Prior to the Rome Convention it was held that a contract must have a
proper law from and at its inception and therefore a clause providing (e.g.) a carrier
with an option to select a law would not operate to postpone the selection of a law but
would itself be subject to the proper law ascertained from the contract as a whole. A
general average clause may give the carrier an option as to port or place of
adjustment,216 and the question is whether the proper law of the contract would allow
the option to operate.
26.155 Under the Rome Convention the parties choice remains the prima ry ground
of selection of the governing law. Lacking choice, the law of the port of destination may
govern the adjustment even if the law generally applicable to the contract as a whole be
some other law. The adjustment arguably is a severable part of the contract, although
hardly severable from the provisions of general average. Even if not severable it may
be referred to the law of the place of performance as going to the manner of
performance (see supra).
26.156 Average bond. On general principles the governing law is the law having
the closest and most real connection. Apart from the Rome Convention an express
selection of the place of adjustment would be a strong —but not apparently a conclusive
—indication of its proper law. 217 Under the Convention for the reasons suggested in
respect of the adjustment of average it is arguable that the law of the place would
govern the bond.
26.157 In 1980 in The Armar218 the Court of Appeal held that a decision as to the
place of adjustment reached after the entry into an average bond could not dictate the
proper law of the bond. The bond as a contract had to have a proper law from its
inception. Such a decision goes only to the rejection of the dependence of the proper
law of a contract relating to average (as distinct from the law governing the adjustment)
on a subsequent selection of the place of adjustment. It is arguable that, unlike the need
for a proper law applicable to a contract because of the possibility of dispu tes at any
time, there is no such need in relation to adjustment. The proper law of the adjustment
applies only to the adjustment and there is, therefore, no reason not to recognise
selection by the parties—or postponement of its ascertainment. 219 Under the Rome
Convention parties may change the law applicable to the contract by subsequent
selection (see supra) but the specification of the place of adjustment would not of itself
be a selection of the law applicable to the bond.
(ii) UNJUST ENRICHMENT
26.158 It may be argued that even when raised in a contractual context an average
claim is based on the obligation to contribute to the general sacrifice. Whatever its basis
in a contract context, an average obligation can arise where there is no contract on
which it can possibly be based—as where it exists between cargo owners. It would
appear clear that the same rule applies as for average claims arising out of contract —
that adjustment is referred to the law of the place of destination.
Salvage
(i) CONTRACT
26.159 Where salvage services are rendered pursuant to contract the governing
law is ascertained as any other contract. Lloyd’s Standard Form of Salvage Agreement
2000 contains a specific choice of English law. 220
(II) UNJUST ENRICHMENT
26.160 Where salvage services are rendered without agreement the basis for
recovery is the conferment of benefit and therefore enrichment which would be unjust
without payment. As regards salvage services started on or after 1 January 1995 the
principles are enshrined in the Salvage Convention 1989 which is given the force of
law in the United Kingdom by the Merchant Shipping (Salvage and Pollution) Act 1994.
The Convention applies whenever relevant judicial or arbitral proceedings are bought
in a State party. 221 While it sets out the criteria of and conditions for an award the
apportionment as between persons in the service of each salving vessel is to be
determined by the law of the flag of the vessel. 222
26.161 As regards salvage prior to 1 January 1995 the law of the flag is applied to
a dispute as to apportionment between persons in the service of a foreign vessel. 223
Apart from that there is no evidence that the law applied would be other than English
law. (d) Proprietary issues General approach
26.162 A substantive proprietary claim in relation to a tangible movable or
immovable is governed by the law of the place of the thing, and in relation to an
intangible the law of residence of the "debtor". A proprie tary claim may involve either
or both of two distinct issues:
(i) the assertion of an interest against a defendant who is not a party to its creation
(i.e. against a third party) where (a) the claim is against a defendant who has no interest
in the relevant asset (as where he has inflicted damage) or (b) the defendant has a
competing interest (e.g. ownership or a similar interest to the claimant);
(ii)the enforcement of a claim on the basis of the transfer of a proprietary interest
which may create two competing interests within (i) ( see p. 681).
Some claims will clearly have proprietary and other aspects. So, the ability of a
cargo owner to sue for damage to the cargo carried prior to his acquisition of ownership
of the cargo,224 or a time charterer for loss caused through damage to the ship, poses
issues which can be seen as either property or tort or both. The enforcement of a
security by a mortgagee against a mortgagor or a purchaser of a ship in respect of the
sale could be seen as contract or property.
26.163 The difficulty of classification underlines the artificiality of using domestic
concepts (some not at all clear) as a basis for the selection of a go verning law and the
constant need to focus on the issue before the court. 225 There is, therefore, a preliminary
question of construction. Once the issue is classified as a property issue the choice of
law process requires the identification of the "asset" in which the interest is held (e.g. a
ship, goods or a debt) as tangible (and if tangible movable or immovable) or intangible.
The base for the application of the choice of law process is then established.
26.164 The philosophy behind the choice of law framework is not difficult to
appreciate. "Title" is essentially connected with the thing in relation to which it is
claimed and is fully enforceable only where the thing is. 226 This applies with most force
to immovables and, until the coming into force of section 30 of the Civil Jurisdiction
and Judgments Act 1982, on 24 August 1982, English courts adopted the general
principle, save for maritime claims, 227 that they would not even adjudicate on matters
involving any question of title to foreign immovables. 228 The general focus on the place
of the thing applies with less logic to movables or intangibles, for the place at a critical
time may have little to do with the parties, the dispute, or the ability to enforce the
claim, particularly where it is for damages. 229 The Rome Convention applies the law
governing the contract to matters connected with an assignment of contractual rights,
including assignability and enforceability against the debtor. However, in the context of
the Convention and adopting a broad internationalist approach these issues have been
considered as "contractual" (see 26.3 9).230 Proprietary maritime claims
26.165 Such claims concern aspects of:
(a) ownership, mortgages, liens and chartering of ships (ship claims);
(b) ownership, mortgages and liens of cargo (cargo claims);
(c) ownership, mortgages and liens (where applicable) of freight or charter or
insurance moneys (money claims).
(i) Assertion of a proprietary interest
(A) SHIP CLAIMS
26.166 It is likely that questions of ownership and mortgage of ships would be
referred to the law of the flag, on the principle that a ship reflects the territory of the
flag. In 1979 in The Angel Bell231 Donaldson J. equated ships to land for the purpose of
deciding on the law to govern a mortgage and applied the law of the flag. The reasoning
applies with as much if not greater force to ownership. Even apart from the reasoning
(and on the basis that a ship was "a floating piece of the nation whose flag it wears") it
scarcely makes sense to refer questions of the validity and effect of proprietary
transactions to the law of the place of a ship at the time of the transaction. It is
commercially unrealistic to follow the appro ach applicable generally and link a transfer
or creation of an interest to a situs when the transaction is between parties whose
physical contact with the ship is probably minimal and the very purpose of the ship is
that it continuously changes its situs. Further, the normal maritime framework for
ownership and mortgage is built on registration under the law of the flag and it would be
contrary to the principle of uniformity to adapt a different reference point.
26.167 Even if the general rule of reference of proprietary questions to the situs
applies to ships, there are specific statutory rules applicable to registered ships. The
Merchant Shipping Act 1995, Part I provides a code for governing the transfer of a title
to a registered ship (which must be a British ship) or a share therein and the creation or
transfer of a registered mortgage in such a ship or share. 232 It specifies those qualified
to own British ships and the effect of transfer or transmission on death, ma rriage or
bankruptcy to unqualified persons. Such provisions are not exclusive in the sense that a
proprietary interest may be created in ways other than provided by statute. 233 It is,
however, unlikely that a transaction creating rights under foreign law in a British ship or
even more so a registered British ship would be recognised if contrary to the law of the
applicable part of the United Kingdom. 234
26.168 Mortgage and sale contracts. Contractual issues are governed by the law
applicable to such contracts but the creation of proprietary interests by virtue of the
contract, it is suggested, should be referred to the law governing the validity of such
interests. However, in considering the validity of a mortgage claim against a th ird party
in The Angel Bell, Donaldson J. held that a contract to create a mortgage governed by
English law created an equitable mortgage as that was the result in English law. With
respect, this confuses contractual and property questions. While the Engli sh
"classification" approach may be open to criticism, while it is there it should be
followed.
26.169 Liens.235 In English law it seems that the question of whether a lien
attaches to a claim is a matter for the law of the forum —primarily on the basis that the
question is procedural. 236 This argument formed at least one ground of the decision of
the Privy Council in The Halcyon Isle 237 concerning maritime liens. If it applies to
maritime liens, even more so will it apply to statutory liens in Admiralty. It is arguable
that even accepting these as procedural an equitable lien and a possessory lien are
substantive in that neither depends on legal proceedings for its existence.
26.170 It has already been contended (i) in Chapters 17, 18 that the question of
whether a lien attaches is substantive; (ii) earlier in this chapter that it makes little sense
to separate matters of priority from the characteristics of proprietary interests un less
such interests are governed by separate laws. However, the present English law in
respect of maritime liens and hence statutory liens in Admiralty hinges on the decision
in The Halcyon Isle. Possessory liens and equitable liens co uld be governed by the law
of the place of the asset 238—or treated as procedural and be brought within the principle
of The Halcyon Isle. Whatever its scope the decision calls for comment.
26.171 The decision of "The Halcyon Isle". In this case the High Co urt in
Singapore was faced with claims against a fund resulting from the sale of a ship by a
mortgagee and a ship repairer. The ship was a British ship registered in London and the
mortgage was also registered in London. The repair was carried out in New York.
There were insufficient funds to meet both claims. According to the law of the United
States the shiprepairer has a maritime lien which would take priority to the mortgage.
According to the law of Singapore (which was identical with English law) the
shiprepairer had a statutory lien and the mortgagee’s claim took priority over it. The
Court of Appeal in Singapore had followed a decision of the Supreme Court of Canada
(The Ioannis Daskalelis 239) in holding that the question of whether a claim attracte d a
maritime lien was for the law of the place where it was created (the lex loci
contractus) whereas the question of priority was for Singapore (the law of the forum).
By a majority of 3–2 the Privy Council took the contrary view, holding that:
" . . . the English authorities on close examination support the principle that, in the
application of English rules of conflict of laws, maritime claims are classified as giving
rise to maritime liens which are enforceable in actions in rem in English cou rts where
and only where the events on which the claim is founded would have given rise to a
maritime lien in English law, if those events had occurred within the territorial
jurisdiction of the English court". 240
Previous authorities are by no means certain in their direction but in The Halcyon
Isle the minority roundly declared that "the balance of authorities, the comity of nations,
private international law and natural justice" all supported its view that in English law
the matter of whether a maritime lien based on contracts exists is for the lex loci
contractus.
26.172 The effect of the decision. If the decision is followed by English courts it
settles for English law the issue of the law governing the creation of maritime liens. It
obviates and removes the necessity for the kind of examination of previous authority that
judges and text writers hitherto traditionally undertook on the question. Substantively,
first, the superiority of English law in English courts on this matter avoid s problems
posed by reference to the law of the place of the thing or the act when the root of the
maritime lien is tortious, a problem accentuated if the event causing the lien to arise
occurs on the high seas. Secondly, it appears that the issue of creat ion is one for the law
of the forum only. It is not necessary to show that a maritime lien exists under any other
law. Thirdly, it resolves the problem of separation of issues of nature and priority. Both
are referred to the law of the forum.
26.173 However, because of reference to forum law a ship will attract and shed
maritime liens as she journeys around the world. Such a selection rule encourages forum
shopping. There is much to be said for a uniform Convention on liens but pending the
acceptance of the 1993 Convention by a reasonable number of states the view of the
majority in The Halcyon Isle may not be thought consistent with a common international
view. The majority did use present confusion of national policies in support of its own
nationalist approach, and it may be that continued national emphasis will bring
international agreement out of desperation.
26.174 Rationale of the decision. It is suggested that as much because of its
reasoning as its conclusion the decision is unsatisfactory. The major ity relied on the
arguments that questions of the existence of a maritime lien were (i) jurisdictional and
(ii) procedural or remedial. The minority founded its opinion on the classification of a
maritime lien as a "right of property". The decision therefo re reflects the dependence of
the English approach on classification of issues into choice of law "categories". A
primary danger is that classification is a first step away from reality.
26.175 (i) JURISDICTION. The argument relied on by the majority that the
proprietary characteristics of a maritime lien (in its enforceability against purchasers
and the question of its creation) are matters of jurisdiction seems to confuse an issue of
whether a right (a matter of substance) exists with whether a court can adjudicate on
whether it can exist (a matter of jurisdiction). Even if an English court is directed by a
mandatory statutory rule that only those claims attracting maritime liens in English
domestic law can be recognised in English proceedings as attractin g such liens this is a
matter of choice of law and not jurisdiction. 241 At the least, it leads to lack of clarity to
confuse the nature of rights with the power to decide on their existence.
26.176 (ii) PROCEDURE OR REMEDY. It has been argued in this work that a
"lien" is a proprietary concept and that a maritime lien is part of that concept ( see
Chapter 18). It simply destroys any meaning of the term "procedure" to apply it to
describe characteristics of enforceability and priority.
26.177 The issue in the case. Under United States law, priority (in English law
terms) was conferred on the shiprepairer through the conferring of a maritime lien on the
claim. Therefore, it may be argued, the issue is not priority but the nature of the right.
Whether the claim is one focusing on nature or priority depends simply on the national
approach—but in substance the issue was priority between two preferred claims. The
issue, therefore, was a straight fight between a shiprepairer and a mortgagee with
different views as to their priority being taken by the relevant legal systems. This was
lost in the classification or labelling process adopted.
26.178 The desirable approach. As has been argued, there is much to be said for
referring priority matters to the law governing the validity and enforceability of the
competing interests where only one law is relevant to all such interests. Where more
than one law is relevant (as where the question of creation of the competing interests is
referred to more than one law) there has to b e an "adjudicating" law. In respect of
tangible movables it is said that the law of the situs should continue to govern, that being
the law of the last relevant transaction. In other words has the interest created and
recognised in the earlier place been made subject to the law of the later place. 242
26.179 Where the issue is priority between interests in chattels the controlling law
will therefore be that of the place of the thing and that in respect of intangibles the law
of the place of the debtor or the law creating the interest. 243 However, there is an
internationally accepted link between a ship and the country of her flag and the
registration framework relevant to ownership and mortgages reflecting that link. It is
strongly arguable that, lacking uniform substantive rules introduced through a
Convention, all issues of property in a ship should be referred to the law of the flag. 244
Such a rule would avoid the comings and goings of rights involved in any reference to
the law of the forum, avoid the difficulties of reference to "place" in relation to acts
occurring on the high seas and provide the maximum amount of certainty for those
proposing to create interests in the ship.
26.180 Chartering of ships. English law draws a distinction between demise
charters on the one hand and time and voyage charters on the other. It has concluded that
as possession and control of the ship is not transferred under a time or voyage charter
the charterer has no proprietary interest. It follows that such a charterer cannot enforce
the charter against a purchaser of the ship, 245 nor can he recover damages for loss
suffered as a result of damage to the ship. 246 It is by no means certain that such a
distinction would be universally recognise d247 and it is, therefore, relevant to decide
which law should apply to decide the proprietary consequences of a charterparty.
26.181 Insofar as a charterer’s claim depends on a proprietary interest in the ship,
the question should be referred to the law o f the flag. The very presence of a proprietary
issue means that a party unconnected with the original transaction is involved and it will
often mean that a matter of priority between claimants is at issue. It would be preferable
to refer the question of all proprietary consequences of transactions to the same law,
unless there are strong reasons to select a particular law for a particular transaction. In
the case of charterparties, the only reason displacing the law of the flag wo uld seem to
be the expectation of the parties that the proper law of the contract should govern its
contractual and proprietary characteristics. Insofar as the issue concerns those parties,
the factor is of predominant importance but insofar as either part y is vying with a third
party it is less so. When the question is the effect of one transaction on another, it seems
desirable and logical to refer the question of the effect of each to the same law and that
that law should be the law of the flag. That as regards ships seems preferable to the
uncertainties of the effect of an ever changing law of the situs and (as with shares) gives
force to the existence of a system of registration.
(B) CARGO CLAIMS AND (C) MONEY CLAIMS
26.182 The factors of the flag, registration and the inherent element of continuous
movement relevant to ships do not apply to cargo or freight, charter or insurance
moneys. There is no reason why the general choice of law framework should not apply.
(ii) Transfer of a proprietary interest
26.183 Clearly, the issue of acquisition of a proprietary interest overlaps with its
assertion, for its validity may depend on the validity of a transfer. Such a transfer may
be a voluntary transfer during the life or on the death of the owner, a contract b etween
owner and potential purchaser, assignment 248 or bankruptcy 249 or (in the case of
tangibles) user, or the imposition of a lien by the legal system or sale by a court. 250 It
cannot be said that the general rules governing the question of the governing law to these
questions are clearly established. It must suffice to draw attention to the contenders.
26.184 The validity of the transfer inter vivos of an interest in a tangible movable
(formalities and validity) is governed by the law of its situs. The assignment of a
contractual right is to be taken as a contractual matter by the Rome Convention governed
by the law applicable to the contract between assignor and assignee ( see above). Apart
from the Convention the transfer of an intangible thing (such as a debt) will be referred
either to the law of its situs (the residence of the debtor) or to the proper law of the
assignment with formal validity being governed by the law of the place of the
assignment. As has been said, apart from the Rome Convention, priorities generally are
taken to be governed by the law of the forum. Succession to intangibles or tangible
immovables is governed by the law of the deceased’s domicile.
26.185 Apart from succession, therefore, little distinction is drawn for choice of
law purposes between issues of assertion and transfer of a proprietary interest. It may
be that different national laws will apply to different issues for the focus of the enquiry
may differ according to whether acquisition or assertion forms the point of enquiry.
Assertion, transfer and priority
26.186 Whether a transfer (or purported transfer) of an interest can affect that
interest may be seen as an assertion of ownership, transfer of ownership or priority. So
the nature of the equitable interest and the power of a bona fide purchaser from a non -
owner to defeat the interest of an owner involve all three proprietary asp ects. Priority
cannot be distinguished from the substantive ownership issue.
26.187 It would seem that in this regard there is no call for forum intervention but
that the governing law should be that applicable either to the creation and validity of
interest or the transfer on which the transferee relies, or, in the case of ships, the law of
the flag (see above). 4. Summary
26.188 In many cases, a maritime claim will involve a foreign element. Selection
of the law to govern the issue is, therefore, a necessary preliminary step in its
resolution. To some extent in the maritime area Conventions have introduced a measure
of uniformity but realisation that there is a question of the governing law is a
commercial necessity. The availability of choice of law by parties and its limitations
should be considered on entry into any contract and the choice of law through choice of
forum appreciated in initiating legal proceedings. Finally, undue emphasis by English
courts on English law will simply lead to forum shopping —both home and away—as
well as the global uncertainty which is brought through any nationalistic approach.
26.189 In addition, in basing the selection system on classification of legal issues,
English law runs a serious risk of selection of a law on a base removed from the
problem at issue. The decision in The Halcyon Isle seems a prime example of
concealment of reality through abstruse legal labels. If English law is to govern, let it be
seen that the choice is geared to the issue before the court in its commercial context (in
that case the mortgagee as against the shiprepairer) rather than artificial legal categories
(such as priority and substance).
1. For a fundamental division into mandatory and non -mandatory provisions, see
e.g. Arbitration Act 1996 (see Chapter 13).
2. Including the Brussels Protocols 1988 conferring on the European Court power
to interpret the Convention and setting out the principles of interpretation. In forc e as
from 1 August 2004 (2nd Protocol conferring jurisdiction) 1 March 2005 (UK) (1st
Protocol—SI 2004/3448) and as amended by the Luxembourg Convention 1984 (on the
accession of Greece) and, as from 1 December 1997 by SI 1994/1900 on UK
ratification of the Convention bringing into its ambit the Funchal Convention 1992 (on
the accession of Portugal and Spain). As to the Convention and its effect see generally
Plender, The European Contracts Convention , Sweet & Maxwell, 1991; Kaye, The
New Private International Law of Contract of the European Community (Dartmouth),
1993. The States acceding to the EU on 1 May 2004 are under an obligation to accede to
the Convention (see Act of Accession Art. 4 and list supplied by Commission to
Council (Doc 10637/0 1). Discussion are taking place within the EU to convert the
Convention to a Community instrument (see OJ 241 28/09/04).
3. As amended by SI 2000/1825.
4. A Commission proposal for an EC Regulation on the law applicable to non
contractual was transmitted to the European Parliament on 22 July 2003 (COM(2003)
427).
5. As also with EU laws. See Ingmar GB Ltd v. Eaton Leonard Technologies
Case 38 1/98 [2001] All E.R. (Comm.) 329.
6. Classification or characterisation being recogni sed as regards tort by the Private
International Law (Miscellaneous Provisions) Act 1995, s.9(2). Domestic law
categories may not always be suitable for translation into conflicts categories and
should be undertaken in an internationalist spirit. See e.g. Macmillan Inc. v.
Bishopsgate Investment Trust (No. 3) [1996] 1 All E.R. 585 at p. 604 (per Auld L.J.).
Raffesisen (fn. 11).
7. That being the terminology of the Rome Convention 1980 (as to which see
infra), the common law phrase being "proper law of the contract".
8. For provisions dealing with choice of law in respect of particular matters, see
e.g. the Unfair Contract Terms Act 1977, s.27; the Employment Protection
(Consolidation) Act 1978, s.153(3); the Civil Jurisdiction and Judgments Act 1982,
s.26(3) (property retained pending foreign court’s judgment); the Merchant Shipping Act
1995, s.17(7) (law governing ownership and mortgages of ships registered in UK
because of demise charters). See also Civil Liability (Contribution) Act 1978, s.1(5);
Merchant Shipping Act 1995, Sch. 7—the Limitation Convention 1976, Art. 14 (as to
which see Chapter 24). See also the Late Payment of Commercial Debts (Interest) Act
1998, s.12. Financial Services and Markets Act 2000 (Law Applicable to Contracts of
Insurance) Regulations 2001 (SI 2001/2635) following EU Insurance Directives and
replacing Schedule 3A of Insurance Companies Act 1982. See p. 658.
9. See e.g. Koop v. Bebb (1957) 84 C.L.R. 629 (High Ct. of Australia).
10. See 26.51.
11. See Raffeisen Zentralbank Osterreich AG v. Five Star General Trading LLC
[2001] 1 All E.R. (Comm.) 961 (C.A.); Re Atlantic Telecom GmbH [2004] Scot CS
152.
12. See e.g. Government of India v. Taylor [1955] A.C. 491; QRS 1 Aps v.
Frandsen [1999] 3 All E.R. 289. As to exclusion from the Brussels Convention see
ibid. and Chapter 4.
13. I.e. a law imposing a penalty by a state as distinct (e.g.) from a "penalty" in a
contract. It is for the English court to determine if a law is "penal" in this context. See
Attorney General of New Zealand v. Ortiz and Others [1982] 2 Lloyd’s Rep. 224. A
further category of unenforceable foreign laws is said to be "public laws" but the
existence and content of this group is debatable. See e.g. Attorney General of New
Zealand v. Ortiz (supra). Compare Staughton J. (at first instance) [1982] 1 Lloyd’s
Rep. 173, at pp. 185–187; Lord Denning M.R. (in C.A.) [1982] 2 Lloyd’s Rep. 224, at
pp. 23 1–233. See also Private International Law (Miscellaneous Provisions) Act 1995,
s.14(3), referring to "penal revenue or other public law". "Revenue law" extends to
"indirect" enforcement at least where a liquidator as nominee of a foreign state seeks to
give extra-territorial effect to a revenue law (QRS 1 Aps v. Frandsen [1999] 3 All E.R.
289).
14. Kuwait Airways Corpn v. Iraq Airways Co. (Nos 4 and 5) [2002] 2 A.C. 883.
15. A concept as impossible to define in this context as any other, but it does not
extend to foreign laws simply inconsistent with English law —it is focused on laws
contrary to fundamental concepts or national interest. See also the exception to
governing law principles of the Rome Convention of "ordre public" (Art. 16)—as to
which see infra.
16. See William and Humbert Ltd v. W. and H. Trade Marks (Jersey) Ltd [1986]
1 All E.R. 129 (H.L.) Peer International Corpn. v. Termidor Music Publishers Ltd
[2004] 2 W.L.R. 849 (C.A.) and authorities there considered. A discriminatory law (e.g.
based on racial grounds) may not be recognised. See Oppenheimer v. Cattermole and
Co. [1975] 1 All E.R. 538 (H.L.). As to positive provisions for non -recognition or
enforcement see Protection of Trading Interests Act 1980; Shipping and Trading
Interests Act 1995.
17. As ss.1(3), (6)(a) of the Carriage of Goods by Sea Act 1971.
18. See also International Regulations for Preventing Collisions at Sea 1972 which
subject to special rules for harbours, roadsteads and inland waterways connected with
the high seas apply to "all vessels upon the high seas and in all waters connected
therewith navigable by seagoing vessels" (r. 1(a), (b)). As to application in English law
to UK ships and any other ships in UK waters see SI 1996/75. The Regulations are
contained in Merchant Shipping Notice M 1642/COLREG 1, "part of" SI 1996/75 ( see
pp. 669–670). The conflicts rule may require the applicability of the English regulations
applying the rules as part of the governing laws or as a mandatory rule ( see infra). The
scope of any Convention in any country depends on the national enacting provisions. For
a case turning on the construction of the Carriage of Goods by Sea Act 1971, s.1(3)
(enacting the Hague-Visby Rules) see Mayhew Foods Ltd v. Overseas Containers Ltd
[1984] 1 Lloyd’s Rep. 317.
19. [1991] 1 Lloyd’s Rep. 370. The bill was not issued in a contracting State, the
carriage was not from a contracting State a nd, it was held, simply opting for "British
law" did not of itself mean that the legislation giving effect to the rules should apply to
the contract.
20. [1974] 2 Lloyd’s Rep. 143; [1974] 2 All E.R. 705.
21. Adopting Dicey and Morris, Conflict of Laws, 9th edn, p. 352. See now
general and more comprehensive discussion of statutes and their varying effects (13th
edn), pp. 16–26.
22. Such as in the Arbitration Act 1996 (see s.2); Late Payment of Commercial
Debts (Interest) Act 1998 (see s.12).
23. See the discussion in Re Paramount Airways Ltd [1992] 3 All E.R. 1—
holding that "any person" in the Insolvency Act 1986, s.238 (in the context of reversal of
transactions for undervalue) included a person abroad having a connection with
England. Compare the approach of the New Zealand C.A. to a statutory provision
relating to the priority of registered ship mortgages in The Betty Ott [1992] 1 NZLR
655 (as to which see Chapter 23).
24. So the power to legislate in respect of "carriage by air" is limited to carriage
within the UK or carriage having departure or destination in the UK —it could not apply
to carriage within a foreign state ( Holmes v. Bangladesh Biman Corpn. [1985] 1 All
E.R. 852 H.L.).
25. See e.g. The Acrux [1965] P. 391 (maritime lien); The Betty Ott (New
Zealand) fn. 7.
26. In tort until the introduction of statutory reform through the 1995 Act the general
selection principles impose actionability under English and foreig n law—thereby
mandatorily applying English law to every case as part of the conflicts process. (See
generally Tort, infra.)
27. [1965] P. 391. Compare e.g. Sayers v. International Drilling Co. NV [1971] 2
Lloyd’s Rep. 105; The Rosso [1982] 2 Lloyd’s Rep. 120, in which the Court of Appeal
ignored the question of whether a relevant statutory provision was mandatory.
28. [1983] A.C. 565. See also The Benarty [1984] 2 Lloyd’s Rep. 244 (C.A.). The
prohibition of evasion through a jurisdiction clause is now subject to the mandatory
recognition of jurisdiction clauses under the European jurisdiction regimes ( see Chapter
5).
29. Schedule Art. 7(2). Article 7(1) (providing for the discretionary application of
the mandatory rules of a country of close connec tion) is not enacted into English law.
30. Schedule Art. 3(3)—the choice is "not to prejudice" the application of these
rules. See infra "Contract".
31. Some of the mandatory provisions apply whether or not the seat of the
arbitration is in England (see ss.2, 3, 4). See generally Chapter 13.
32. See Art. 21.
33. See Art. 17.
34. See e.g. Through Transport Mutual Insurance Assoc. (Eurasia) Ltd v. New
India Assurance Co. [2004] 1 Lloyd’s Rep. 206, [2005] 1 Lloyd’s Rep. 67 ( C.A.).
35. CPR 6.20(5)(c). Although this rule applies only outside the European
jurisdiction regimes whether or not English law is arguably the governing law will,
depend on the Rome Convention if the matter is within it. See Bank of Baroda v. Vysya
Bank Ltd [1994] 2 Lloyd’s Rep. 87. For discussion of the point see Morse [1994]
LMCLQ 560.
36. Neither type of agreement is within the Rome Convention (Contracts
(Applicable Law) Act 1990, Sch. Art. 1(2)(d)). See below.
37. This is said to be relevant in deciding whether to uphold a foreign jurisdiction
clause but on occasions English courts refuse to uphold such clauses without
considering the task they impose on themselves of applying foreign law ( see Chapter
12). For an example of the rejection of the argument that the appropriate forum was the
country the law of which governed the issue, see The Traugutt [1985] 1 Lloyd’s Rep.
76.
38. See e.g. Mackender v. Feldia AG [1966] 2 Lloyd’s Rep. 449, [1966] 2 All
E.R. 847.
39. Article 8(1)—an alternative is the law of country of habitual residence of a
party where it is not reasonable to determine the effect of the conduct under the law
specified (Art. 8(2)).
40. As under CPR 6.20(5)(c).
41. The Parouth [1982] 2 Lloyd’s Rep. 351; The Atlantic Emperor (No. 1) [1989]
1 Lloyd’s Rep. 554; Oldendorffv. Liberia Corpn [1995] 2 Lloyd’s Rep. 64.
42. The Heidberg [1994] 2 Lloyd’s Rep. 287—it not being shown any other law
should apply and rejecting the contention that the matter should be considered as if there
was no arbitration clause.
43. Compare the approach in The Acrux [1965] P. 391 with The Halcyon Isle
[1981] A.C. 221. See further Chapter 18.
44. As to which, see infra "Tort".
45. See (e.g.) Raffeisen (fn. 11).
46. See e.g. the construction of the statutory provisions of the Merchant Shipping
Act 1894 (ss.503, 504) relating to limitation of liability in Caltex Singapore Plc Ltd v.
BP Shipping Ltd [1996] 1 Lloyd’s Rep. 286. As to limitation and conflicts of laws see
further Chapter 24.
47. As to a discussion of categories, see infra.
48. See (e.g.) the approach to classification by Staughton L.J. in Macmillan Inc. v.
Bishopgate Investment Trust plc (No. 3) [1996] 1 All E.R. 585 at pp. 594 –596;
Raffeison v. Five Star (fn. 11).
49. Reference may be made to foreign law for some particular factor without it
being the governing law. See e.g. The Gilbert Rowe [1997] 2 Lloyd’s Rep. 218; The
Ideal Gavel [1999] LMLN 502 (did the claimant organisation still exist?) or may be
incorporated into an aspect of the contract (raising the question of the extent of the
incorporation). See e.g. The Stolt Sydness [1997] 1 Lloyd’s Rep. 273. See infra.
50. Supreme Court Act, s.20(7)(c). The provision extends to mortgage "or charge".
See Chapters 2 and17.
51. As e.g. The Merchant Shipping Act 1995, s.17(7) referring issues of transfer
and mortgage of foreign registered ships registered in the UK as chartered to a British
charterer to the law of original registration.
52. See The Fairport [1965] 2 Lloyd’s Rep. 183.
53. See e.g. The Arosa Kulm (No. 2) [1960] 1 Lloyd’s Rep. 97; The Arosa Star
[1959] 2 Lloyd’s Rep. 396.
54. See The Arzpeta (1921) 15 Asp. M.L.C. 426; The Andre Theodore (1904) 10
Asp. M.L.C. 94 (insurance premiums).
55. [1965] P. 391.
56. [1981] A.C. 221. See also Comoco v. M/V El Centro Americano [1984] AMC
1434.
57. Or with reference to a foreign law to determine an aspect of the case ( see fn.
41).
58. For an English sceptical comment see Macmillan Inc. v. Bishopgate
Investment Trust plc (No. 3) [1995] 3 All E.R. 747. The nature of the approach in the
United States not arising in the C.A. (as to which see [1996] 1 All E.R. 855 and infra).
59. But see Lauritzen v. Larsen (1952) 345 U.S. 271; Hellenic Lines v. Rhoditis
398 U.S. 306 (1970).
60. To some it is the "rule" which is classified as procedural or substantive but the
rule can only be reached on the basis of its application to the issue. It is, therefore,
essential to formulate the issue precisely.
61. See e.g. Private International Law (Miscellaneous Provisions) Act 1995,
s.14(3)(b)—referring to "rules of evidence, pleading or practice" or "questions of
procedure in any proceedings".
62. See e.g. Johnson Matthey and Wallace Ltd v. Ahmad Alloush [1985] N.L.J.
1012 (C.A.).
63. [1981] A.C. 221; [1980] 2 Lloyd’s Rep. 325.
64. The Act applies whether the limitation period is certain or uncertain, any
question of a cliam in perpetuity being one of "hardship" (as to which see infra) (Dubai
Bank Ltd v. Fouad Haji Abbas [1998] I.L.Pr. 391—see further Chapter 11).
65. See s.1. The scope of the exception (which refers to tortious issues) is affected
by the Private International Law (Miscellaneous Provisions) Act 1995 removing the
"double actionability" choice of law rule ( see infra). Any foreign extension or
interruption because of absence from the country is to be disregarded (1984 Act,
s.2(3)). The English law principles of acquiescence and other grounds of refusal of
equitable relief may be applied, but where the case turns on like foreign law principles
the court "shall have regard" to those principles (s.4(3)).
66. Section 2(1)(2), i.e. "excessive hards hip" or hardship more than the
circumstances warranted (Jones v. Trollope Colls Cementation Overseas Ltd The
Times, 26 January 1990. Such hardship may be caused by the application of a governing
law not realised by the parties to be such (see The Komninos S [1991] 1 Lloyd’s Rep.
370). An argument that a foreign law disapplied on hardship grounds could then, if
substantive, apply as a consequence of the conflicts process was rejected. See also
(applying these decisions) Arab Monetary Fund v. Hashim [1993] 1 Lloyd’s Rep. 543.
67. See e.g. Huber v. Steiner (1835) 2 Bing. N.C. 202; Harris v. Quine (1869)
L.R. 4 Q.B. 653.
68. But it remains critical to identify the issue. See e.g. Macmillan (fn. 48). See
further p. 679.
69. Pardo v. Bingham (1868) L.R. 6 Eq. 485; Ex parte Melbourn (1870) L.R. 6
Ch. App. 64; Re Kloebe (1884) 28 Ch.D. 175.
70. The Halcyon Isle [1981] A.C. 221. See infra.
71. See e.g. Norton v. Florence Land Co. (1877) 7 Ch.D. 332.
72. See Macmillan Inc. v. Bishopgate Investment Trust Plc [1996] 1 All E.R. 585
at pp. 596–597 (Staughton L.J.).
73. See Raffeisen paras 37–42.
74. Raffeisen (fn. 11). There was detailed consideration as to whether the question
at issue (requirement of notice to the debtor) was contractual or proprietary.
75. [1981] A.C. 221.
76. See e.g. The Colorado [1923] P. 102; The Zigurds [1932] P. 113. Compare
The Tagus [1903] P. 44.
77. A contention supported by the analysis of the C. A. in Macmillan Inc. v.
Bishopgate Investment Trust Plc (No. 3) in relation to competing interests in shares.
78. See Phrantzes v. Argenti [1960] 2 Q.B. 19.
79. As e.g. the Fatal Accidents Act 1976 —see Roerig v. Valiant Trawlers Ltd
[2002] 1 Lloyd’s Rep. 681. Quantification is to be treated as procedural under the 1995
Act and therefore for the forum (s.14(3)(b)) Hulse v. Chambers [2001] 1 W.L.R. 2386.
80. Mackinnon v. Iberia Shipping Co. Ltd 1955 S.C. 20; Coupland v. Arabian
Gulf Petroleum Co. [1983] 2 All E.R. 434; [1983] 3 All E.R. 226 (C.A.); D’Almeida
Araujo Lda. v. Becker & Co. [1953] 2 Q.B. 329 (contract) (but see the Contracts
(Applicable Law) Act 1990, Sch. 1, Art. 10(1)(c)). Under the Rome Convention
assessment of damages is seen as substa ntive but made subject to the "procedural law"
of the member States (Art. 10(1)(c)—see infra).
81. Boys v. Chaplin [1971] A.C. 356—it must be said that it is difficult to extract a
common principle from this unfortunate case and that two members of the House viewed
all questions of damage in that case as matters of quantification. See Private
International Law (Miscellaneous Provisions) Act 1995 focusing on "the issues" (s.12).
82. See Caltex Singapore Ltd v. BP Shipping Ltd [1996] 1 Lloyd’s Rep. 286.
83. Although the existence of a number of Conventions with the earlier superseded
by the later may add to the problem of conflict because of the difference in parties and
the importance given by states to laws based on Conventions and partly for this reason
the 1976 Convention cannot be said to reflect international standards so as to justify the
refusal to stay proceedings as against a natural forum in which the earlier 1957
Convention would be applied (The Herceg Novi and Ming Galaxy [1998] 2 Lloyd’s
Rep. 454 (C.A.)).
84. Leroux v. Brown (1852) 12 C.B. 801; Brown v. Thornton (1837) 6 Ad. & E.
185. The Cadle Co. v. Hearley [2002] 1 Lloyd’s Rep. 143. The Crown has power to
make Orders in Council providing that copies of entries in foreign public registers shall
be admissible in English proceedings (Evidence (Foreign, Dominion and Colonial
Documents) Act 1933, as amended by Oath and Evidence (Overseas Authorities and
Countries) Act 1963, s.5). As to powers of UK courts to take evidence in connection
with foreign proceedings see Evidence (Proceedings in Other Jurisdictions) Act 1975;
First American Corpn v. Zayed [1999] 1 W.L.R. 1154 (requests refused as
"oppressive").
85. See The Gaetano and Maria (1882) 7 P.D. 137—where Italian law was the
governing law and under which a bottomry bond was valid. The requirement of English
law (the law of the forum) of the need of the master to communicate with the owner was
not relevant.
86. See Dicey and Morris, op. cit., 13th edn, pp. 167–168. As to the Rome
Convention see infra. It seems unclear whether, apart from the Convention, the question
of ability to sue and liability to be sued in a particular action is substantive or
procedural. As to the relevance of the question to the application of the Carriage of
Goods by Sea Act 1992 to bills of lading governed by foreign law see Toh [1994]
LMCLQ 280.
87. See e.g. The Roberta (1937) 58 Ll. L. Rep. 159. But see Dicey and Morris, op.
cit., pp. 166–167.
88. Article 14(1). Modes of proof may be according to those recognised by the law
of the forum or of any country by the law of which under the Convention the contract is
formally valid (Art. 14(2)).
89. If the law to which the matter is referred is allowed to reclassify (e.g. from
substance to procedure or contract to tort) it may create a reference back to the law of
the forum, and undermines the foundation for the reference. For an example of
reclassification see Re Cohn [1945] 1 Ch. 5. The Private International Law
(Miscellaneous Provisions) Act 1995 provides that "the characterisation for the
purposes of private international law of issues arising in a claim as issues relating to
tort or delict is a matter for courts of the forum" (s.9(2)).
90. See Re Atlantic Telecom GmbH [2004] Scot CS 152 (Court of Session)
agreeing with Cheshire and North p 39.
91. As emphasised in Macmillan Inc. v. Bishopsgate Investments Trust plc (No.
3) (fn. 40).
92. [1971] 3 All E.R. 163; see also Coupland v. Arabian Gulf Petroleum Co.
[1983] 3 All E.R. 226 and infra. Compare Brodin v. Selj an 1973 S.C. 213 (a contract
of employment governed by Norwegian law could not effect tortious liability under
Scottish statute where all events took place in Scotland and Scotland was the forum).
93. As amended by SI 2000/1825 to take account of the accessions of Austria,
Finland and Sweden.
94. SI 2004/3448.
95. Shamil Bank of Bahrain v. Beximco Pharmaceuticals Ltd [2004] EWCA Civ
19, para. 48. So any application of a non national law would be through the governing
national law.
96. See (e.g.) Raffeisen (fn. 11) putting the issue into the broad context of the
Convention.
97. So a substantive commercial transaction is to be distinguished from a
documentary credit or performance bond ( Attock Cement Co. Ltd v. Romanian Bank for
Foreign Trade [1989] 1 Lloyd’s Rep. 572) but there may be such a connection as to
mean the proper law of one contract controls the others. See e.g. Turkiye Is Bankasi SA
v. Bank of China [1993] 1 Lloyd’s Rep. 132 (guarantees); The Nj egos [1936] P. 90
(bill of lading and charterparty); Bank of Baroda v. Vysya Bank [1994] 2 Lloyd’s Rep.
87 (contracts relevant to letters of credit); Wahda Bank v. Arab Bank Plc [1996] 2
Lloyd’s Rep. 470 (C.A.) (counter guarantees and performance bonds).
98. See e.g. Vita Food Products Inc. v. Unus Shipping Co. Ltd [1939] A.C. 277.
As to limitations on choice, see infra. Choice may be implied but care must be taken not
to overemphasise one factor. The use of the English language is not necessarily the
choice of English law as it is used for many maritime standard forms. See e.g. The Al
Wahab [1983] 2 All E.R. 884 (H.L.); The Armar [1980] 2 Lloyd’s Rep. 450.
99. See e.g. Compagnie d’Armement Maritime SA v. Compagnie Tunisienne de
Navigation SA [1971] A.C. 572. There is no presumption in favour of any particular
connection (Coast Lines Ltd v. Hudig & Veder Chartering NV [1972] 1 Q.B. 34).
100. See The Armar [1981] 1 All E.R. 498, and infra. Sonatrach Petroleum
Corpn. v. Ferrell International Ltd [2002] 1 All E.R. (Comm.) 627, Colman J.
101. The Armar [1981] 1 All E.R. 498.
102. The Tenacia [1982] LMLN 55; The Iran Vojdan [1984] 2 Lloyd’s Rep. 380.
103. The Star Texas [1993] 2 Lloyd’s Rep. 445 (C.A.). Further there is no
requirement that the law governing the arbitration proceedings has to be fixed at the date
of the arbitration agreement (ibid.).
104. Such as, for example, liability under a charterparty ( The Tunisienne Case
(supra fn. 99)); entitlement to sell cargo (The Industrie [1894] P. 58); whether loss of
goods due to "perils" excepted by the bill of lading ( Chartered Mercantile Bank of
India v. Netherlands India Navigation Co. (1883) 10 Q.B. 521); liability under a bill
for short delivery (see The Assunzione [1954] P. 150); claim under an average bond
(The Armar [1981] 1 All E.R. 498); international organisation constitution ( Westland v.
Arab Organisation [1995] 2 All E.R. 387).
105. See Re United Railways of Havana and Regla Warehouses Ltd [1960] Ch.
52, at pp. 96–97, 115 (C.A.); The Al Wahab [1983] 2 All E.R. 884. For a suggestion
that an English court applying English law as the proper law may refer matters to a
foreign law through the proper law, see The Armar [1981] 1 All E.R. 498, at p. 505.
Renvoi is excluded by the Rome Convention (Art. 15).
106. See e.g. Dicey and Morris, op. cit., at p. 1231 (distinguishing between
existence and validity of consent).
107. As to offer and acceptance, see Albeko Schuhmaschinen v. Kamborian Shoe
Machine Co. Ltd (1961) 111 L.J. 519; as to consideration, see Re Bonacina [1912] 2
Ch. 394; as to parties, see The El Amria and El Minia [1982] 2 Lloyd’s Rep. 28. As to
the service out of a claim form based on an asserted contract see The Parouth [1982] 2
Lloyd’s Rep. 351. See generally the discussion in The Heidberg [1994] 2 Lloyd’s Rep.
287. For an application of the lex fori in such circumstances see Mackender v. Feldia
AG [1966] 2 Lloyd’s Rep. 449.
108. See the Rome Convention on the Law Applicable to Contractual Obligations
(1980), Arts 8 and 9 (discussed below).
109. Compare Art. 11 giving a limited capacity role to the law of the place of
contracting or where the issue is whether a contract has been created, the putative
proper law.
110.As was decided in The Heidberg [1994] 2 Lloyd’s Rep. 287.
111. A contract illegal by English law and that law being the proper law is
voidable by an English court. It is irrelevant that it is lawful where performed. The Evia
Luck [1992] 1 Lloyd’s Rep. 115 (H.L.). See also Tekron Resources Ltd v. Guinea
Investment Co. Ltd [2004] 2 Lloyd’s Rep. 26.
112. In Ralli Bros v. Companie Naviera Sota y Aznar [1920] 2 K.B. 287 a
shipowner’s actions to recover freight of a value of the difference between the contract
price and the price allowed as "legal" at the place of discharge failed —but in this case
the contract was governed by English law. As to the relationship of contract illegal by
its place of performance, an arbitration agreement and a foreign arbitration award under
the proper law enforcing the contract see Westacre Investments Inc. v. Jugoimport-
SDPR Holding Co. Ltd [1999] 1 All E.R. (Comm.) 865 (C.A.); Omnium de Traitement
et de Valorisation SA v. Hilmartin Ltd [1999] 2 All E.R. (Comm.) 146 (holding not
against English public policy to enforce the award) —and see Chapter 27.
113. [1939] A.C. 277.
114. As to arguable application of a Scottish statute to override a contractual
defence to a tort see Brodin v. Selj an 1973 S.C. 213. Compare Sayers v. International
Drilling Co. NV [1971] 3 All E.R. 163. The forum mandatory rule is to be distinguished
in principle from the application of a forum rule as a result of the choice of law process.
115. [1983] 1 Lloyd’s Rep. 1.
116. See The Happy Pioneer [1983] H.K.L.R. 43 or a foreign ve rsion into a
contract governed by English law (see The Stolt Sydness [1997] 1 Lloyd’s Rep. 273)—
in that case construing "suit" appearing in the US version in accordance with English
law because of the governing law. As to the importance of the issue see Chapters 11, 13.
117. [1991] 1 Lloyd’s Rep. 370.
118. See e.g. Loucks v. Standard Oil Co. 224 N.Y. 99, at p. 111 (1918); Westacre
Investments Inc. v. Jugoimport—SPDR Holding Co. Ltd [1999] 1 All E.R. 865 (C.A.).
119. See e.g. The Assunzione [1954] P. 150 (Willmer J.).
120. See e.g. Compagnie d’Armement Maritime SA v. Compagnie Tunisienne de
Navigation SA [1971] A.C. 572, in which the distinction between inferred intention and
objective assessment is clearly drawn.
121. It has been suggested that there may be a presumption towards a law which
regards the contract as valid in opposition to one that regards it as invalid. See e.g.
Coast Lines Ltd v. Hudig & Veder Chartering NV [1972] 2 Q.B. 34. But see The Rosso
[1982] 2 Lloyd’s Rep. 120. As to the law to govern validity see supra.
122. [1972] 1 Q.B. 34.
123. Compare the Convention focus on "characteristic performance" .
124. See e.g. The Adolf Warski [1976] 2 Lloyd’s Rep. 241; The El Amria [1981] 2
Lloyd’s Rep. 119. For standard bill of lading form, see e.g. Visconbill, Clause 20.
125. An option of an arbitration place would give no indication of the proper law
and it cannot be argued that it is provision of a floating applicable law ( The Star Texas
[1993] 2 Lloyd’s Rep. 445). See infra.
126. Where the parties have selected English jurisdiction and law, any decision of
a foreign court declaring the jurisdiction clause void because of domestic legislation is
not to be recognised save on public policy groun ds—and in assessing that the territorial
scope of the foreign legislation applicable to the substantive issue should be taken into
account. See Akai Pty Ltd v. People’s Insurance Co. Ltd [1999] I.L.Pr. 24—assessing
the upholding of the jurisdiction clause on principles generally applicable (as to which
see Chapter 12).
127. [1982] 2 Lloyd’s Rep. 351.
128. [1994] 2 Lloyd’s Rep. 287.
129. [1981] 2 Lloyd’s Rep. 446.
130. Sections 9–11 (stay of legal proceedings), s.66 (enforcement of awards), s.43
(securing attendance of witnesses in proceedings in England or Northern Ireland), s.44
(powers exercisable in support of proceedings); the powers in ss.43, 44 being
discretionary—see Chapter 13.
131. Section 7 (separability of arbitration proceedings), s.8 (effect of death of a
party).
132. Section 2.
133. Compagnie d’Armement Maritime SA v. Compagnie Tunisienne de
Navigation SA [1971] A.C. 572; Egon Oldendorffv. Libera Corpn [1996] 1 Lloyd’s
Rep. 380.
134. The Star Texas [1993] 2 Lloyd’s Rep. 445.
135. In Black Clawson (fn. 129) Mustill J. thought the two agreements may be
subject to differing laws.
136.See The Amazonia [1990] 1 Lloyd’s Rep. 236.
137. The Star Texas [1993] 2 Lloyd’s Rep. 445.
138. See e.g. James Miller & Partners Ltd v. Whitworth St. Estates (Manchester)
Ltd [1970] A.C. 583.
139. See Union of India v. McDonnell Douglas Corpn [1993] 2 Lloyd’s Rep. 48
—choice of English law in respect of an arbitration in England matched with Indian law
provisions in respect of the internal content of the arbitration inconsistent with English
law.
140. See Dunbee Ltd v. Gilman & Co. (Australia) Pty [1968] 2 Lloyd’s Rep. 394
(N.S.W.).
141. The Convention is amended by the Luxembourg Convention 1984 (on the
accession of Greece) the Funchal Convention 1992 (on the accession of Portugal and
Spain) and the Brussels Convention 1996 (on the accession of Austria, Finland and
Sweden). The Luxembourg Convention forms Schedule 2 of the Act. The Funchal
Convention was as from 1 December 1997 enacted through SI 1994/1900 and the
Brussels Convention through SI 2000/1825. As to the application of Convention
principle to jurisdiction issues under see fn. 28 . The report of Giuliano and Lagarde,
OCJ, 31 October 1990, may be considered in interpreting the Convention.
142.As to such contracts, see infra 26.85.
143.Article 5. A consumer contract is the supply of goods or services or provision
of credit for that purpose to a person for a purpose outside his trade or profession (Art.
5(1)). The protection does not extend to contracts of carriage nor, apart from contracts
for travel and accommodation, to contracts for services in a country other than that of
the consumer’s habitual residence (Art. 5(4), (5)).
144.Articles 5(2), 6(1).
145.Articles 5(3), 6(2).
146.See s.2(1), (2), Art. 2 It applies to conflicts between the parts of the UK as
well as between the UK and other countries (s.2(3)).
147.See the Brussels 1st Protocol 1988 (Sch. 3 of the Act).
148.Article 11 (referred to in 2(a)) imposes a limitation on a plea of incapacity to
contract and Art. 14 (referred to in 2(h)) burden of proof.
149.SI 2001/2635.
150."Internal law" within the U K for the purposes of 1(3) is set out in the
Insurance Companies Act 1982, s.94B, Sch. 3A (inserted by SI 1990/1333 and amended
by 1993/174 and 1994/1696) and the Friendly Societies Act 1992, s.101, Sch. 20
(amended by SI 1993/2519)—providing rules for the determining of applicable law
(1990 Act, s.2(1A) as inserted by SI 1993/2519, reg. 6(5) referring to Sch. 3A of the
1982 Act and Sch. 20 of the 1992 Act).
151.As in the European jurisdiction regimes.
152.Applied to a jurisdiction issue in Oldendorff v. Liberia Corpn [1995] 2
Lloyd’s Rep. 64, the onus of showing its applicability being on the party relying on it.
This provision may prevent problems where there is more than one potential proper law
(see supra).
153. See 26.39.
154.In construing (i) the startpoint is whether or not there are elements connected
with more than one country, not with the mandatory rule and factors relevant to that rule
(Caterpillar Financial Services Corpn. v. SNC Passion [2004] 2 Lloyd’s Rep. 99.
155.As e.g. the Hamburg Rules where enacted.
156.[1983] 1 Lloyd’s Rep. 1.
157.See the Vita Foods case [1939] A.C. 277.
158.Compare the common law prohibition on the floating law ( see supra).
Presumably any change would bind the consignee of a bill of lading who claims under
the contract (see the Carriage of Goods by Sea Act 1992, s.3(1) —being "subject to the
same liabilities under that contract as if he had been a party to that contract" ).
159.As with a reinsurance contract placed on the London market with terms
consistent with the practice of the market ( Gan Insurance Co. Ltd v. Tai Ping
Insurance Co. Ltd [1999] I.L.Pr. 729) or the terms of an insurance policy issued by a
Texas broker and an insurer situated in Texas Amico v. Cellstar Corpn. [2003] EWCA
Civ 206.
160. See Egon Oldendorffv. Libera Corpn (No. 2) [1996] 1 Lloyd’s Rep. 380.
161. To achieve the certainty aimed at by the Convention only where the contract
specifies by express or implied term that performance is to be elsewhere and not simply
anticipated will the qualification operate ( Ennstone Building Products Ltd v. Stanger
Ltd [2002] 2 All E.R. (Comm.) 479).
162. Including single voyage charterparties and other contracts the main purpose of
which is carriage of goods.
163. See the comments of Hobhouse L.J. in Credit Lyonnais v. New Hampshire
Insurance Co. [1997] 2 Lloyd’s Rep. 1 at p. 5.
164. As to the approach see e.g. Sierra Leone Telecommunications Co. Ltd v.
Barclays Bank Plc [1998] 2 All E.R. 821—characteristic performance of a claim for
repayment of funds in a bank account is by the bank, and place of central administration
the place of the branch where the account was kept.
165. See eg the summary in Definitely Maybe (Touring) Ltd v. Marek Lieberberg
Konzeragenter GmbH [2001] 2 All E.R. (Comm.) 1.
166. [1994] 2 Lloyd’s Rep. 87. For comment see Morse [1994] LMCLQ 560. As
to the applicability of the Convention in a jurisdiction context see fn. 152.
167.See Caledonia Subsea Ltd v. Micopevi S.R.L. [2002] SLT 1022.
168. PT Pan Indonesia Bank Ltd TBK v. Marconi Communications International
Ltd [2005] EWCA Civ 422.
169. As provided in SI 200 1/2635.
170. I.e. of the UK or any EEA State to which all other elements other than choice
are connected.
171.As to long term insurance see Part III.
172. Where not, an individual the place of central administration, Reg. 2(3).
173. Reg. 4. Where the policyholder carried on a business and the risks are in
more than one State the parties may take advantage of freedom of choice of the laws of
any such State (4(4)).
174. Reg. 7.
175. See the approach of the C.A. (considering Insuranc e Companies Act 1982) in
Credit Lyonnais v. New Hampshire Insurance Co. [1997] 2 Lloyd’s Rep. 1 (pointing
out that the first instance court had taken into account factors relevant at common law
but not under the Directives). See also Thomas (ed.) Baatz Modern Law of Marine
Insurance (1996) at p. 336. For a detailed analysis of difficulties posed by the
provisions see Amico v. Cellstar Corpn. [2002] EWCA Civ 206.
176. See e.g. Szalatray-Stacho v. Fink [1947] 1 K.B. 1; Metall und Rostoffv.
Donaldson Lufkin Inc. [1989] 3 All E.R. 14. Whether a defence in a contract governed
by foreign law would be recognised depends on whether the tort rule is seen as
mandatory (see e.g. Brodin v. Selj an 1973 S.C. 213).
177. For a Canadian application, see Canadian National S.S. Co. v. Watson
[1959] 1 D.L.R. 273.
178. See e.g. The Leon (1881) 6 P.D. 148; Chartered Mercantile Bank of India v.
Netherlands India Steam Navigation Co . (1883) 10 Q.B.D. 521. The statutory reform
does not affect this rule (see infra).
179. I.e. on land or within territorial waters. As to territorial waters, see The
Halley (1868) L.R. 2 P.C. 193; The Arum [1921] P. 12; The Wazirstan [1953] 2 Lloyd’s
Rep. 361, but see also Sayers v. International Drilling Co. NV [1971] 3 All E.R. 163
in which, however, the predominant view was that it was a case in contract. For an
example of a collision between a ship and a foreign pier, see The Tolten [1946] P. 135.
The rule that English courts lacked jurisdiction to hear actions in regard to foreign land
does not apply to maritime claims ( ibid.), and is greatly modified by the Civil
Jurisdiction and Judgments Act 1982, s.30. ( See Chapter 12.)
180. [1971] A.C. 356.
181. The Halley (1868) L.R. 2 P.C. 193—stemming from a collision in Belgian
waters which raised the defence of compulsory pilotage —a defence in English law but
not in Belgian law. The vessels were Belgian and Norwegian. As to the effect of a
contractual defence and the relevant choice of law p rocess, see supra.
182. Babcock v. Jackson 240 N.Y.S. 2d 743 (1963); [1963] 2 Lloyd’s Rep. 286,
289 (an action in New York arising out of a vehicle collision in Ontario). Such a
formula, taken on its own, is not limited to tort. The approach may have been varied in
1967 in Reich v. Purcell 432 P. 2d 727 (1967) through assessment of state interests.
183. [1971] A.C. 356.
184. Lord Guest and Lord Donovan included the question of t he head of damage (in
this case "pain and suffering") as procedure. See [1971] A.C. 356, at pp. 382, 383.) As
to time bars, see supra.
185. At p. 391.
186. See e.g. Morris, Conflict of Laws (McLean), 4th edn, 1993, p. 288; Dicey and
Morris, 12th edn, 1993, p. 1480; Cheshire and North, 12th edn, 1992, Chap. 20.
187. Johnson v. Coventry Churchill International Ltd [1992] 3 All E.R. 14 (J. W.
Kay Q.C.); Red Sea Insurance Co. Ltd v. Bouygues SA [1994] 3 All E.R. 749 (P.C.).
188. Red Sea Insurance Co. Ltd v. Bouygues SA (fn. 187).
189. For an application of the "exception" to the double actionability requirement
see Pearce v. Ove Arup Partnership Ltd [1999] 1 All E.R. 769.
190. By s.14(2) it is expressly specified that change applies only where the
common law rules also specified would have applied. The change is not to affect any
rule of law except as abolished, and in particular is not to authorise any question of
procedure to be determined otherwise than by the lex fori or affect the non-application
of foreign law because of public policy or that it consists of a penal, revenue or other
public law as would not be enforceable under forum law (14(3)).
191. [1974] 2 Lloyd’s Rep. 143; [1975] Q.B. 198.
192. The foreign law should apply whether or not the ac ts take place only on one
ship and whether the ship is British or not. See Mackinnon v. The Iberia Shipping Co.
1955 S.C. 20 (Sc.). But cf. Sayers v. International Drilling Co. [1971] 3 All E.R. 163
in which the Court of Appeal treated the foreign law as irrelevant. It may be that foreign
law should be excluded.
193. So Sturt, The Collision Regulations (3rd edn, para. 1.15), ignores both
choice of law process and the mandatory ru le in declaring that "within the territorial
jurisdiction of a foreign State the application of the rule would be subject to the relevant
municipal law of that State". The Regulations are currently enacted by SI 1996/75 as
amended by SI 2004/302. They have been extended under the power conferred by
Merchant Shipping Act 1979, s.47 to Bermuda, Falkland Islands, Montserrat, St Helena
and Turks and Caicos Islands (SI 1989/2400 as amended by SI 1993/1786). There is a
power to apply to ships other than those of the United Kingdom the provisions of an
international agreement involving safety (Merchant Shipping Act 1995, s.85(1)) and
provisions of the Merchant Shipping Acts generally (Merchant Shipping Act 1995,
s.307).
194. Section 1 (after 1 January 1996, Merchant Shipping Act 1995, ss.187, 188).
195. Currently enacted into English law by the Merchant Shipping (Distress
Signals and Prevention of Collision) Regulations 1996, SI 1996/75 Merchant Shipping
Act 1995, ss.85, 86. See further fn. 12.
196. Regulation 2(1)(a) 2. They also apply to seaplanes registered in the UK on the
surface of water anywhere and other seaplanes on the surface of water in the UK or
territorial waters (reg. 2(i)(b)).
197. [1973] 2 Lloyd’s Rep. 73. For an example of a US court applying foreign law
to a collision in foreign waters, see Ishikazi Kisen Co. Ltd v. US (18–975) AMC 287
(US Ct. of Appeals).
198. The Toluca [1981] 2 Lloyd’s Rep. 548; The Maritime Harmony [1982] 2
Lloyd’s Rep. 400; The Savina [1975] 2 Lloyd’s Rep. 141; The Troll River [1974] 2
Lloyd’s Rep. 181; The Francesco Nullo [1973] 1 Lloyd’s Rep. 72; The Bovenkerk
[1973] 1 Lloyd’s Rep. 63; The Adolf Leonhardt [1973] 2 Lloyd’s Rep. 318; The Ore
Chief [1974] 2 Lloyd’s Rep. 427; The Martin Fierro [1974] 2 Lloyd’s Rep. 203; The
Sabine [1974] 1 Lloyd’s Rep. 465; The Oldekerk [1974] 1 Lloyd’s Rep. 95; The
Boleslaw Chrobry [1974] 2 Lloyd’s Rep. 308. Cf. SI 1989/1798.
199. By the Collision Regulations and Distress Signals Order 1977 (SI 1977/682)
and the Safety (Collision Regulations and Distress Signals) Regulations 1979 (SI
1979/1659) the Regulations were extended to vessels of specified foreign countries
whether within British jurisdiction or not. These provisions were revoked by SI
1983/708.
200. This argument assumes that the relevance of the Collision Regulations in
assessing civil liability is a matter of substance. If it is a matter of procedure, burden of
proof, or evidence it is a matter for the forum and the English regulation would again
apply.
201. See generally Goff and Jones, Law of Restitution, 5th edn, 1998; Birks,
Restitution—The Future (1992); Burrows, The Law of Restitution, (1993) and the
advent of the Restitution Law Review 1993. The consequences of nullity of contract are
excluded from UK enactment of the Rome Convention as a matter of restitution ( see
supra).
202. See e.g. [1996] LMCLQ 63, 463, 556; Rose (ed.), Restitution and the
Conflict of Laws (1995). The defence is not available where the charge is illegal,
including illegality under foreign law (See Barros Mattos Junior v. General Securities
and Finance Ltd [2004] 2 Lloyd’s Rep. 475.
203. Barclays Bank v. Glasgow City Council [1994] 4 All E.R. 865.
204. See Lipkin Gorman v. Karpnale Ltd [1992] 4 All E.R. 512 (H.L.); Birks,
"English Recognition of Unjust Enrichment" [1991] LMCLQ 473.
205. See Napier v. Hunter [1993] 1 All E.R. 385 and e.g. Key [1994] LMCLQ
421 and authorities there cited.
206. For an example of the limitations on the role of restitution see The Trident
Beauty [1994] 1 Lloyd’s Rep. 365 (H.L.)—a charterer cannot recover from an assignee
of receivables including hire or charter monies paid in advance and not earned. For
discussion see Barker [1994] LMCLQ 305.
207. Macmillan Inc. v. Bishopgate Investment Trust Plc (fn. 40).
208. See e.g. Goff and Jones, Law of Restitution, 1st edn, at p. 506. In the second
edition the authors omitted the subject of conflict of laws, having, they said, little to add
to Dicey and Morris. In the 4th edn it is dealt with (at pp. 730 –731) in the context of
tort.
209. 14th edn, rule 201.
210. El Ajou v. Dollar Land Holdings Plc [1993] 3 All E.R. 717; Chase
Manhattan Bank v. Israel British Bank [1979] 3 All E.R. 1025. In both cases the court
thought it unnecessary to enquire if the basis of claim was procedural or substantive —in
the Chase Manhattan case as the right existed in foreign and English law however
classified and in the El Ajou case as English law was the law of the place of receipt and
law of the forum.
211. See e.g. The Port Caledonia and the Anna [1903] P. 184; Akerblom v. Price
Potter Walker & Co. (1881)
7 Q.B.D. 129, 132–133 (per Brett C.J.). The Salvage Convention 1989 provides
for annulment or modification if the terms are inequitable (Art. 7).
212. See generally Lowndes and Rudolph, General Average and the York Antwerp
Rules, 12th edn, 1997.
213. See ibid. G38–G53.
214. As, for example, Gencon 1994 cl. 12 and NYPE 1993 cl. 25.
215. See Simonds v. White (1824) 2 B. & C. 805; Lloyd v. Guibert (1865) L.R. 1
Q.B. 115; Wavertree Sailing Ship Co. v. Love [1897] A.C. 373. The port may be where
a voyage is broken by agreement or necessity (see Hill v. Wilson (1879) 4 C.P.D. 329).
216. See The Armar [1980] 2 Lloyd’s Rep. 450.
217. The Armar (supra) at p. 454. It should be noted that the issue in this case was
whether the contract was governed by English law so as to allow service of writ out of
the jurisdiction under RSC Ord. 11, r. 1(1 )(f)(iii) and therefore that no question arose as
to whether different issues were governed by different laws (Megaw J.).
218. [1980] 2 Lloyd’s Rep. 450.
219. Just as there is no reason not to permit postponement of decision as to the
place of arbitration—the only effect is to neutralise that factor as relevant to the law
governing the substantive contract. See The Star Texas [1993] 2 Lloyd’s Rep. 445 and
supra.
220. See LOF 2000 cl. J.
221. A r t i c l e 1 .
222. Article 15(2). If there is no vessel involved the matter is to be governed by
the law of the contract between salvor and his servants ( ibid.).
223. Maritime Conventions Act 1911, s.7.
224. As to which see now Carriage of Goods by Sea Act 1992 —a statutory
transfer of contractual rights. It is uncertain whether the Act will be seen as mandatory
or whether, there being no express provision, it applies o nly to contracts in relation to
which the applicable law is English. There is no enactment of a Convention to lead to
the former and there seems little in principle to suppose a mandatory approach. See Toh
[1994] LMCLQ 280.
225. See Macmillan Inc. v. Bishopgate Investment Trust (No. 3) (fn. 48).
Raffeisen (fn. 11).
226. So, unlike classification into categories whether an asset is immovable or
movable is referred to the lex situs, but the situs is a matter for English conflicts rules.
227. See The Tolten [1946] P. 135.
228. The jurisdiction is now excluded only where the proceedings are principally
connected with title or the right to possession (see s.30 of the 1982 Act).
229. See the discussion in the Court of Appeal decision in Raffeisen (fn. 11).
230. Art. 12(2). As to subrogation see Art. 13 (and 26.99).
231. [1979] 2 Lloyd’s Rep. 491.
233. Ibid.
234. In Union Bank v. Lenanton (1878) C.P.D. 243 no question of foreign law
seems to have been contemplated in respect of a ship sold by British owners to Turkish
buyers, the issue being whether title could pass by bill of sale in a ship which in English
law was unregistered (and unregistrable).
235. The question of whether a lien created by foreign law and recognised in
English law is relevant only if the claim can be brought in an English court —i.e. if the
court has jurisdiction. As regards maritime claims, therefore, the claim must comply
with the Supreme Court Act 1981, ss.20 and 21. As to the availability of claims under
foreign law under these provisions, see supra and Chapter 2.
236. Compare a US approach of assessing which law should apply on the basis of
connecting factors between state and the issue where the rival inter ests are a
contractually created lien and that of a non -party to the contract (see Arochem v. Wilomi
962 F. 2d 496 (1992)).
237. [1981] A.C. 221.
238. In relation to contractual liens a third possibility is the proper law of any
contract creating such a lien and this seems sometimes to have been confused with the
law of the place of creation of the lien (see The Halcyon Isle [1981] A.C. 221, at p.
230). Such a possibility confuses contract and property.
239. The Federal Court of Appeal in Canada approved and followed The Ioannis
Daskalelis in Marlex Petroleum v. The Ship "Har Rai" (1984) 4 D.L.R. (4th) 739. See
also The Galaxias 1980 1 Can. Fed. 386. After some uncertainty the approach in The
Halcyon Isle was approved in South Africa (The Andrico Unity 1989 (4) S.A. 325 (A))
(see generally Staniland [1989] LMCLQ 174; [1990] LMCLQ 491), in Australia
(Morlines Agency Ltd v. Proceeds of Sale of Ship Skulptor Vuichetich (1997) and in
New Zealand (ABC Ship Brokers v. The Ship Offi Gloria [1993] 3 NZLR 576—see
[1998] LMCLQ 403).
240. [1981] A.C. 221, at pp. 238 –239.
241. The "jurisdictional" approach is encouraged by the statutory framework of
Admiralty jurisdiction in that it provides that an action in rem will lie to enforce a
maritime lien (see Chapter 2). (Compare The Acrux [1965] P. 391 with The Halcyon
Isle [1981] A.C. 221.)
242. See e.g. Macmillan Inc. v. Bishopgate Investment Trust (No. 3) (fn. 41). See
the view of Staughton L.J. that to refer prioriti es to the law of the forum is "an invitation
to forum shopping if ever I saw one" (at p. 599).
243. As the situs will under English law be the debtor’s residence a more certain
reference may be to the law creating the interest ( see ibid.). And see the criticism of the
debtors residence as the governing law of intangibles in Raffeisen (fn. 11).
244. See e.g. The Epimenidis [1986] LMLN 186 (Court of Appeal Ghent).
245. See Port Line Ltd v. Ben Line Steamers Ltd [1958] 12 Q.B. 146. As to prior
mortgages cf. Chapter 23.
246. See e.g. The World Harmony [1967] P. 341.
247. See e.g. The Struma [1978] AMC 2146.
248. Assignment on marriage is not treated here as its relevance to commercial
maritime claims must be peripheral. However, it should not be ignored as a root of
ownership. Where there is a marriage contract its validity will be referred to its proper
law; where there is no contract the effect of marriage on movable assets seems to
depend on the domicile of the parties but the rules are imprecise and unclear. Cf. Dicey
and Morris, 14th edn, Chapter 28.
249. Questions in bankruptcy include the effect of an English adjudication on assets
situated out of the jurisdiction, the effect of a foreign adjudication, the ability to prove
foreign debts and the effect of discharge in England or a foreign country. Cf. Dicey and
Morris, 14th edn, Chapter 31. As to winding up of companies and choice of law, see
ibid., Chapter 30.
250. See e.g. Air Foyle Ltd v. Center Capital Ltd [2004] I.L.Pr. 15 (sale of an
aircraft).
Chapter 27
Enforcement of Foreign Judgments and Arbitral Awards outside the European

Judgments Regimes 1. Foreign Judgments1 Application of Merger and Issue
Estoppel
27.1 In English law an action in personam merges into a judgment of an English
court on the action and an action in rem into the judgment on that action. As a result the
basis of any further action by a party is the judgment. Like principles are those of issue
or cause of action estoppel, "issue estoppel" being in essence a variant of cause of
action estoppel. In regard to cause of action estoppel a party is estopped from asserting
that a cause of action exists (or does not exist) when the question has been judicially
determined. Through "issue estoppel" that general doctrine is applied to a particular
issue common to consecutive proceedings.
27.2 Subject to the overriding requirement that it must work justice and not
injustice issue estoppel applies to a foreign judgment on the following conditions:
(i) the foreign court has jurisdiction
(ii) the judgment is final and conclusive on the merits
(iii) identity of the parties
(iv) the issue decided is that arising before an English court.
(v) there has been "a full contestation and a clear decision"
(vi) the resolution of the issue was needed for the foreign court decision. It
is irrelevant whether the English court agrees with the decision either in fact or
law. However, the question of whether it is clear and precisely on the relevant issue
must be approached with caution because of possible difference in procedures. 2
27.3 The probable difference between merger and estoppel lies in the conclusive
effect of merger (the cause of action simply is determined) and the possible counterplea
by a party to a claim of estoppel. So the other party may establish that the party relying
on the cause of action or issue estoppel is himself estopped by conduct from that
reliance (see Chapter 25).
27.4 In English law prior to 24 August 1982 the cause of action of a claim did not
merge in a foreign judgment, and it followed that a claimant having a foreign judgment
could bring an action in England either on the original claim or the judgment. However,
cause of action and issue estoppel were applied. The Civil Jurisdiction and Judgments
Act 1982, section 34, which came into operation on 24 August 1982, provides:
"34. No proceedings may be brought by a person in England and Wales or Northern
in proceedings between the same parties, or their privies, in a court in another part o f
the United Kingdom or in a court of an overseas country, unless that judgment is not
enforceable or entitled to recognition in England and Wales or, as the case may be, in
Northern Ireland."3
This provision either applied the principle of merger to forei gn judgment or simply
recognised estoppel as applicable. In The Indian Grace 4 the House of Lords, assuming
that estoppel could not be pleaded where merger operates, held that the effect of this
provision was to allow for a plea of issue estoppel rather tha n merger. The phrase "no
proceedings shall be brought", it was held, simply creates a defence to any proceedings
subject to a counter assertion rather than destroying the cause of action. The case was
remitted to the Admiralty Court for the plea to be adju dged on the evidence. In truth it
seems probable that not only the differences between in personam and in rem but those
between estoppel and merger were never in the minds of those creating the provision.
The sole motive was to rid English law of an anomaly in the application of merger. Its
effect, as it turns out, is with qualification to leave the law of merger as it was. It has,
however, led to a realistic approach to the action in rem.
27.5 Following remittal the case again reached the House of Lords. 5 The radical
feature of the judgment on that appeal (discussed in Chapters 10, 18) was to declare that
an action in rem, as with an action in personam, was brought against a defendant. It
followed therefore that where the person interested in the ship and the defendant found
liable in the earlier action in personam were identical the proceedings were brought
against the "same party" within the meaning of section 34. 6
27.6 It follows from that conclusion that subject to estoppel where there is an
enforceable judgment of a foreign court (whether in rem or in personam) no further
action (whether in rem or in personam) can be brought in England against the same
party.7 The enforceability of the judgment will depend on compliance with prerequisites
and lack of any ground for non -recognition or non-enforcement (see infra) and the
nature of the judgment. It will include interlocutory orders where there has been an
opportunity to defend. 8 The effect of a default judgment may be limited by the lack of
such an opportunity and will be limited to issues precisely and necessarily decided. So
such a judgment on a claim alleging fraud will not, without more, lead to issue estoppel
in relation to the fraud allegation. 9 Competing Foreign Judgments
27.7 The general rule is that subject to estoppel by conduct, of two judgments, each
of which is enforceable in England, it is the first in time which takes priority. The rule
therefore mirrors that of the enforcement of any foreign judgment in that the party
seeking to enforce may be estopped, for example, because of representations made as to
the effect of either judgment. 10 Recognition and Enforcement
27.8 Following the general principle of res judicata a foreign judgment may be
"recognised" or "enforced" by English courts without any requirement that under English
law the result of the case would be identical. 11 A judgment declaring a status or title or
dismissing a claim may require no more than recognition, while a judgment awarding
damages will require positive enforcement. Recognition and enforcement are based on a
mixture of statutory provision and rules of Admiralty and common law, and a
fundamental distinction must be drawn between judgments within and outside the scope
of the EC Regulation 44/200 1 or the Brussels or Lugano Conventions ("the European
judgments regimes"). Judgments within those are discussed in Chapter 28. The
framework in existence prior to them will continue to apply as amended by the Civil
Jurisdiction and Judgments Act 1982 to judgments not within them. They are the subject
of this chapter.
27.9 A distinction is drawn between other United Kingdom courts and courts
outside the United Kingdom. A judgment of a court of another part of the United
Kingdom may be recognised or enforced only by registration in accordance with a
statutory structure applicable only to such judgments. Enforcement of a judgment of a
court outside the United Kingdom may be through action or registration in accordance
with statutory rules. Judgments of other United Kingdom courts
27.10 Prior to the Civil Jurisdiction and Judgments Act 1982 the structure was that
of the Judgment Extension Act 1868 12 and the Inferior Courts Judgments Extension Act
1882 and at least so far as England is concerned, the common law. The statutory
provisions were restricted to money judgments. There is now statutory provision for
money and non-money judgments through the domestic adaptation of the Brussels
Convention. The rules are contained in section 18 and Schedules 6 and 7 of the 1982
Act—Schedule 6 providing for money judgments and Schedule 7 for non -money
judgments. Subject to specific exclusions13 a judgment of a court in civil proceedings
given in one part of the United Kingdom may be recognised or enforced by an
"interested party" in another part on registration of a certified copy of the judgment. No
distinction is drawn between actions in personam and actions in rem or judgments in
personam and in rem. (a) Recognition
27.11 The Civil Jurisdiction and Judgments Act 1982 provides for "enforcement".
The principles of "recognition", which by its nature requires no positive act, are
changed from those in existence prior to the Act only in one particular, though a
fundamental one. Prior to the Act English courts would recognise foreign judgments
(including those in Scotland and Northern Ireland) only if the foreign court had
jurisdiction.
27.12 Section 19(1) of the Act provides that, with specified exceptions, no
judgment of a court within the enforcement framework shall be refused recognition
solely on the ground that under the private international law rules of the enforcement
court the adjudicating court lacked jurisdiction. 14 The provision thereby removes the
principal criterion for recognition of judgments under the common law and in effect
adapts the principle of the European judgment regimes pla cing jurisdiction enquiry in
the adjudicating court. Excluded are an award of a tribunal enforceable without court
order, and an arbitration award enforceable where it was given in the same manner as a
judgment given by a court of law (see infra). (b) Enforcement
27.13 Under the 1982 Act apart from arbitration awards enforceable in the same
manner as a judgment the rules provide the exclusive method by which a judgment
within its scope may be recognised or enforced. Judgment is defined broadly. It includes
a judgment or order given by a court of law in the United Kingdom or entered in the
High Court or county court in England or Northern Ireland and a tribunal or arbitration
award enforceable without court order. Excluded from the provisions is a judgment on a
judgment, i.e. a judgment of a court outside the United Kingdom which is to be enforced
as such by virtue of the Civil Jurisdiction and Judgments Act 1982, Administration of
Justice Act 1920 or the Foreign Judgments (Reciprocal Enforcement) Act 1933.
Excluded also is a judgment which is "a provisional (including protective) measure
other than an order for the making of an interim payment" —thus differing from the 1968
Convention.
General effect of registration
27.14 Registration gives the judgment "for the purpose of its enforcement . . . the
same force and effect" as if the judgment had originally been given by the registering
court and (if relevant) entered. 15
COSTS, EXPENSES AND INTEREST
27.15 Reasonable costs and expenses in relation to registration are recoverable.
Provision is made for the recovery of interest including interest on the costs or expenses
(Schedule 6, paras 7, 8, Schedule 7, para. 7).
Money provisions of judgments (Schedule 6)
27.16 The rules leave little room for refusal of enforcement providing the simple
procedure is followed. The provisions apply to any money provisions in a judgment
within the Act. The enforcement process is through:
(a) a certificate granted on applicati on by an interested party made to the
designated officer of the adjudicating court; 16 and
(b) registration of that certificate within six months of its issue through application
made to the proper officer of the registering court.
A court for this purpose is in relation to England and Wales and Northern Ireland
the High Court and in relation to Scotland the Court of Session.
27.17 The certificate may not be issued unless, under the law of the part of the
United Kingdom in which the judgment was given, the time for appeal against the
judgment has expired or an appeal having been brought has been disposed of, secondly,
the enforcement of the judgment is not suspended, and thirdly its time for enforcement
has not expired.
27.18 Provided none of these grounds for refusal of issue exist a certificate shall
be issued. 17
STAYING OF ENFORCEMENT PROCEEDINGS (SCHEDULE 6, PARA. 9)
27.19 Proceedings for enforcement of the certificate may be stayed if the court is
satisfied that the person against whom it is sought to enforce the certificate intends to
apply for a remedy which could result in the setting aside or quashing of the judgment
sought to be enforced. It must also be satisfied that the applicant is entitled so to apply.
SETTING ASIDE OF REGISTRATION (SCHEDULE 6, PARA. 10)
27.20 Where a certificate has been registered the registration must be set aside if it
was contrary to Schedule 6 and may be set aside if the court is satisfied that the matter
on which the judgment was given had previously been the subject of a judgment by
another court having jurisdiction in the matter.
Non-money provisions (Schedule 7) 18
27.21 In the case of non-money provisions the basis is a certified copy of the
judgment.19 The enforcement provisions are similar to those applicable to enforcement
of money provisions. Grounds of refusal to issue go solely to the possibility of an
appeal and are as for the enforcement of money provisions ( see supra). Provided none
of the grounds exist a certified copy of the judgment as a whole must be issued and a
certificate stating that the conditions going to the possibility of an appeal are satisfied.
THE REGISTRATION PROCESS
27.22 The registration process provides greater opportunity for challenge than that
applicable to money provisions. It does not depend (as in the case of money provisions)
simply on the production of a certificate. The application for registration must be made
to the High Court and may be refused i f compliance with a non-money provision
contained in the judgment would involve a breach of the law of the part of the United
Kingdom in which it is sought to enforce the judgment.
27.23 In England an application may be made without notice. 20 As with the rules
applicable to money provisions, registration proceedings may be stayed if other
proceedings are to be taken to set aside or quash the judgment sought to be enforced.
The effect of registration and incorporation of reasonable expenses and interest is as for
money provisions.
27.24 As with judgments within the Convention the order giving leave to register
must contain notification that no measures of enforcement will be taken until after the
determination of any appeal or expiry of period for appeal. Notice of registration must
be served on the person against whom the judgment is to be enforced. The notice must
set out the judgment, the name and address for service of the person who made the
application and notification of the right and period available for appeal. Permission is
not required for service of the notice out of the jurisdiction and (as for a claim form)
acknowledgment of service by the defendant or acceptance by his solicitor may be
deemed to be service. 21 The power and the obligation to set aside registration of a
judgment are identical to those in respect of money provisions. No distinction is drawn
between judgments in actions in personam and judgments in actions in rem. Judgments
of courts other than of the United Kingdom
Gibraltar
27.25 Provisions corresponding to the Brussels Convention are applied as
between the United Kingdom and Gibraltar to regulate the jurisdiction of courts and
recognition and enforcement of judgments. 22 For this purpose the United Kingdom and
Gibraltar are treated as if each was a separate state. So the principles applicable are
those considered in Chapter 28.
Other states
27.26 Judgments may be enforced through one of t he two methods available:
(i) without registration by an action on the foreign judgment; or
(ii) if a judgment in personam directing the payment of a sum of money, through
registration and enforced as a judgment of an English court. 23 (i) Recognition and
enforcement without registration
Judgments “in personam” and “in rem”
27.27 A judgment in rem must be distinguished from an action in rem. In this
context a judgment in rem is a judgment which binds the world and therefore any person
having an interest in or claim on the thing in relation to which the judgment is given.
Such judgments are those connected with status such as marriage, adoption and the
like.24 A judgment in an action in rem will bind any person having an interest in the res
to the extent of that interest. Further, it will have the consequence that on sale of the res
by the court the purchaser will obtain a title good against the world. To that extent it is
akin to a judgment in rem.
Judgments in actions “in rem”
27.28 The only judgment in rem directly relevant to maritime claims is that
resulting from an action in rem.25 Given that the action is limited to the res, where the
court giving the judgment has control of the res in relation to which the action is brought,
the only forum for enforcement is the controlling court. However, the question may arise
of recognition of that judgment, particularly as a sale by the court, when completed,
confers a title on a purchaser clear of liens and mortgages.
27.29 Further, in an English court, an action in rem may be instituted without
arrest, or there may be no compliance with a contractual undertaking or retention under
arrest after stay of proceedings. Actions in rem in foreign countries may likewise
contemplate a judgment in relation to a ship or other asset not then within the court’s
power. In such cases an English court may be asked to enforce a judgment conferring a
title on a purchaser of an asset within the jurisdiction of the English court.
WHEN IS A JUDGMENT “in Rem”?
27.30 In recognising and enforcing a judgment an English court will first decide if
the judgment was in rem. An English court will have regard to the nature of the foreign
proceedings and decide whether in English terms they were aimed at a thing or a person
in the sense of the English dichotomy of action in rem and action in personam.26
27.31 Apart from the effect of sale by the court the application of the label
"judgment in rem" to Admiralty actions is probably erroneous. It stems from an undue
emphasis on the method of assertion of proprietary interests in ships, cargo and freight
to the detriment of the interests themselves. So if a foreign judgment of any kind may be
enforced by an action in rem there is no reason in principle why that method should not
be available in respect of any judgment declaring an interest which in English law
would be the consequence of an action in rem. But a judgment declaring a lien to exist is
no more a judgment in rem than is a judgment recognising a proprietary interest in any
asset.
27.32 The only true "in rem" aspect of a maritime law judgment is the "clear title"
conferred by sale by the court. A judgment or order conferring title by such sale is the
only aspect of a judgment in a maritime case which has the character of "good against
the world". The use of the action in rem to assert that title fits with the ability to assert
ownership claims in such a way.
27.33 The enforcement of a sale by a foreign court will simply be through the
recognition of the effect of that sale. That was the course followed in at least one
modern case, but there is uncertainty about the jurisdiction to accomplish this by an
action in rem. Undoubtedly it would lie in the nineteenth century and in 1982 in the
Despina GK27 Sheen J. relied on the "sweeping up" clause in the Supreme Court Act for
the foundation for jurisdiction. It has been doubted however whether the jurisdiction
maintained by the Act in respect of pre Act jurisdiction includes "in rem".28 Without
that base there is no power to enforce a foreign judgment "in rem" save by use of
remedies available in respect of "in personam" judgments. It would seem, given the
finding of ownership by the foreign court, that the primary disadvantage would go to
interim relief—to the inability to arrest the res, a disadvantage modified by the
availability of the freezing injunction.
Prerequisites for and defences to recognition and enforcement 29
27.34 Prerequisites for and the defences against recognition and enforcement are
usually discussed in the context of actions in personam leading to judgments in
personam; but they seem equally applicable to actions in personam leading to
judgments in rem and actions in rem leading either to judgments in rem or arguably
judgments in personam. The general prerequisites of recognition and enforcement are
that:
(i) the foreign court had jurisdiction to hear the claim as recognised by English
conflicts rules whatever its own internal rules; 30
(ii) the judgment is final and conclusive by the law of the state in which it was
given;31
(iii) the judgment must not be for tax or a penalty; 32
(iv) If in personam the judgment must be for a fixed sui 33
27.35 The defendant has a limited number of defences available —that the judgment
(i) was obtained by fraud—it not being necessary as it would be in seeking to set
aside an English judgment that there must be fresh evidence, the merits being subject to
being reopened; 34
(ii) is contrary to English public policy; 35
(iii) is contrary to English natural justice; 36
(iv) was given in proceedings brought contrary to an agreement that the dispute
would be settled otherwise than by proceedings in the courts of that country, the
agreement was valid and there was no submission to jurisdiction. 37
27.36 It follows from general principles that an En glish court will not enquire into
whether or require that the claims on which such a judgment is based are recognised in
English law.38 So, in enforcing a foreign judgment as distinct from any attempt to obtain
an English judgment, foreign liens will be recognised. 39 It is only with respect to the
requirement of foreign court jurisdiction that there is any distinction in substance
between the perequisites for and defences against enforcement of judgments in actions
in personam and actions in rem.
FOREIGN COURT JURISDICTION
27.37 Judgments "in personam". A foreign court will be recognised as having
jurisdiction if the defendant either:
(a) (being an individual) was present or (being a corporation) was resident or
present in the state of the court; or
(b) submitted to the jurisdiction of the court.
27.38 Presence. The temporary presence of an individual is enough. 40 A
corporation is likely to be "present" within the meaning of the requirement only if for
more than a minimal period of time either it had maintained at its own expense a fixed
place of business from which it had carried on its own business through servants or
agents, or a representative had carried on the corporation business from a fixed place of
business. Whether a representative had so acted depends on the function and the nature
of relationship between the representative and the corporation—particularly the degree
of control and authority. The fact that a representative never made contracts for the
corporation would point strongly against presence. 41
27.39 Submission. Submission may be through the bringing of an action or
counterclaim, the voluntary entry into the proceedings 42 on the merits or a jurisdiction
agreement. The Civil Jurisdiction and Judgments Act 1982, section 33, provides that an
appearance limited to contesting the jurisdiction, applying for the dispute to be
submitted to arbitration or the courts of another country or to protect or obtain the
release of property seized or threatened with seizure is not submission. 43 Such
provision is not exhaustive of acts which do not amount to submission and the
appropriate criterion is whether some step has been taken which is only necessary or
only useful if any objection to jurisdiction has been waived or not taken. 44 In assessing
this issue account must be taken of the procedure of the foreign court and particularly
whether that court would hold there had not been submission. However, a holding of
submission would not bind the English court. 45
27.40 A defendant must therefore take care not to participate in the proceedings
particularly by lodging pleadings going to the meri ts.46 Although it remains arguable that
participation in proceedings regarding an interlocutory remedy (other than seeking
release of property seized) could be submission, it would now seem likely that an
English court would accept the distinction between such a remedy and the merits. Even
consent to such a remedy may not of itself amount to consent to proceedings on the
merits .47
JUDGMENTS IN PROCEEDINGS BROUGHT CONTRARY TO AGREEMENT
27.41 The Civil Jurisdiction and Judgments Act 1982, section 32 provides :
"32.—(1) Subject to the following provisions of this section, a judgment given by a
court of an overseas country in any proceedings shall not be recognised or enforced in
the United Kingdom if—
(a) the bringing of those proceedings in that court was contrary to an agreement
under which the dispute in question was to be settled otherwise than by proceedings in
the courts of that country; and
(b) those proceedings were not brought in that court by, o r with the agreement of,
the person against whom the judgment was given; and
(c) that person did not counterclaim in the proceedings or otherwise submit to the
jurisdiction of that court.
(2) Subsection (1) does not apply where the agreement referred t o in paragraph (a)
of that subsection was illegal, void or unenforceable or was incapable of being
performed for reasons not attributable to the fault of the party bringing the proceedings
in which the judgment was given.
(3) In determining whether a judgment given by a court of an overseas country
should be recognised or enforced in the United Kingdom, a court in the United Kingdom
shall not be bound by any decision of the overseas court relating to any of the matters
mentioned in subsection (1) or (2)." 48
27.42 By subsection (4) as amended it is provided that nothing in subsection (1)
shall affect the recognition or enforcement of judgments within EC Regulation 44/200 1
or the Brussels or Lugano Conventions or judgment s to which the Foreign Judgments
(Reciprocal Enforcement) Act 1933 is applied by specified statutes (mainly enacting
Conventions into English law). 49
27.43 It follows that, subject to other statutory provisions, a judgment in
proceedings brought contrary to a jurisdiction or arbitration clause not illegal, void or
unenforceable will not be recognised or enforced in England unless the defendant
consented to the action being brought there, submitted to the jurisdiction or
counterclaimed. In assessing whether there has been submission section 33 of the 1982
Act will apply (see supra).
Recognition and enforcement
RECOGNITION
27.44 Provided that the foreign court had jurisdiction, the prerequisites to all the
requirements listed above are satisfied and none of the defences listed above apply, a
foreign judgment will be recognised or enforced as an English judgment. 50 In addition, a
satisfied foreign judgment on the merits will be a good defence to an action on it in
England.51 However, the cause of action is not merged with the judgment —further
proceedings being prohibited by the operation of issue estoppel ( see supra).
ENFORCEMENT
27.45 Provided the foreign court had jurisdiction, the prerequisites above are
satisfied, and none of the defences above apply, a foreign court judgment may be
enforced by action upon it.
27.46 Judgments "in rem". When the issue concerns a physical res52 jurisdiction
depends on the simple test of whether the foreign court had physical control of the res at
the time of judgment.53
Recognition and enforcement of judgments "in rem"
RECOGNITION
27.47 Provided the foreign court had jurisdiction, the prerequisites listed above
are satisfied, and none of the defences listed apply a judgment in rem will be
recognised. It follows that the sale of a ship effected as the result of such a judgment
will be recognised and that the purchaser’s title will be free of encumbrances. 54 Any
lien declared by such a judgment should be the basis of enforcement.
ENFORCEMENT
27.48 Insofar as the foreign judgment in rem imposes any consequence which may
be enforced by an action in personam there is no reason why, subject to compliance
with the prerequisites, it should not be so enforced by an English court. Subject to any
jurisdiction requirements and where the subject matter falls within the Admiralty
jurisdiction, an English court will enforce a judgment in rem through an action in rem.55
27.49 The question arises whether in the case of a foreign judgment in default
recognising a lien an interested party could apply to set the registration aside. There
would appear to be no reason why the requirements of justice should vary between
foreign and domestic judgments, 56 and such a ground would be included in the matters
on which reliance can be placed to resist registration. If the power to set an English
judgment aside extends to a purchaser despite the judgment there is no reason why that
should not apply to registration of a foreign judgment. Any arg ument that this is contrary
to the binding effect of the lien on purchasers is surely met first by the principle that the
judgment it does not create the lien. The recognition of the lien must surely be open to
remedy based on the grounds available for challenging the registration of the judgment.
27.50 Secondly, as it is now recognised that an action in rem is against a person,
any judgment must be focused on that person. The bringing of an action in rem to enforce
the judgment must be against the owner of the ship at that time, and a judgment after
participation by all parties could clearly not be challenged by a person bound by
interest declared. However it would be difficult to deny that person the opportunity to
be heard when no case has been put.
27.51 Thirdly, to allow such a challenge does not affect the principles of the lien.
That continues to bind third parties but only if it exists. As a purchaser of a ship may
challenge the validity of any lien where there has been no intervening judgment it would
seem that no inroad is made on any concept to allow the challenge to a default judgment.
Courts of specified Commonwealth countries
27.52 The Administration of Justice Act 1920 57 provides a discretionary
framework for the enforcement of judgments given in actions in personam under which
money is payable, by courts of Commonwealth countries to which the Act has been
extended.58 An English court may, if it thinks it just and convenient to enforce such a
judgment, on application order a judgment to be registered. 59 Once registered, the
judgment is of the same force and effect as a judgment of the registering court.
27.53 Registration requires jurisdiction of the foreign court on the same criteria as
for enforcement by action to enforce the judgment directly and the defences open to a
defendant are akin to those available in an action on the judgment. 60
Courts of specified countries
FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT 1933 61
27.54 The Act applies to any judgment in personam by which a sum of money is
payable62 given by a court63 of a country to which Part 1 of the Act has been extended. It
was originally intended to replace the Administration of Justice Act 1920 and apply to
both non-Commonwealth and Commonwealth courts; but the two systems continue in
being.64
27.55 Judgments are not to be recognised if given on appeal from a non recognised
court, given or founded on a judgment of a court in another country as an enforcement
measure. In respect of enforcement the Act follows the pattern of the Administration of
Justice Act 1920 65 and that applicable to actions to enforce the judgment directly.
Registration must be set aside if the foreign court had no jurisdiction or on proof of one
of the defences to direct enforcement of a judgment already noted. 66 Registration may be
set aside if, prior to the foreign judgment, the issue had been the subject of an earlier
judgment.67 A judgment on the merits will be recognised as a defence. 68
STATUTES ADAPTING THE FOREIGN JUDGMENTS (RECIPROCAL
ENFORCEMENT) ACT 1933
27.56 A number of statutes enacting into English law Conventions requiring the
recognition of foreign judgments apply the statutory framework of the Act of 1933 to
comply with the obligation. 69 Where a foreign country provides for the enforcement of
judgments given in the United Kingdom to recover amounts paid under foreign
judgments for multiple damages in excess of compens ation, the Act of 1933 may be
extended to that country to allow enforcement in the United Kingdom of like judgments
of courts of that country. 70
Restrictions on enforcement of foreign judgments
PROTECTION OF TRADE
27.57 Following concern at the extraterrit orial application of the anti-trust laws of
the United States, legislative action was taken in the United Kingdom to protect trading
interests. The Protection of Trading Interests Act 1980 encompasses protection through
government direction (backed by criminal sanctions):
(a) not to comply with overseas measures regarding extraterritorial action, or with
extraterritorial orders for production of commercial documents or information;
(b) limiting the power of taking evidence in English courts on behalf of foreign
courts; and
(c) restriction on the enforcement of foreign judgments.
27.58 The statute is wide in scope. Insofar as the enforcement of foreign judgments
is concerned, it prohibits the enforcement of:
(i) a judgment71 based on a rule of law concerned with competition or regulation of
agreements specified by the Secretary of State; 72 or
(ii)a judgment 73 for multiple damages. 74
The prohibition seems consistent with the framework of enforcement between
European Union and EFTA Member States countries in that it reflects English public
policy and therefore falls within the exception to the obligation to enforce judgments
within the European judgment regimes. 75
JUDGMENTS AGAINST STATES
27.59 (a) Against "the United Kingdom" in overseas countries. Without
statutory intervention a foreign judgment given against the United Kingdom Government
may be enforced (and presumably recognised) according to the rules making up the
structure
(i) for enforcement of judgments generally; and
(ii) of domestic actions against the Crown.
27.60 The State Immunity Act 1978 provides positively for conclusive recognition
in any court in the United Kingdom of final judgments in proceedings in courts of
countries parties to the European Convention on State Immunity 1972, provided that the
United Kingdom was not entitled to immunity by virtue of provisions corresponding to
those applicable to overseas states by virtue of the Act. 76 A court "need not give effect"
to the judgment if to do so would be manifestly contrary to public policy; if any party to
proceedings lacked opportunity to present his case; there was no service of process in
and no submission to jurisdiction by the United Kingdom; duplicate proceedings
instituted first are pending in the United Kingdom or another contracting State; the
judgment is inconsistent with another given in the United Kingdom or another
contracting State; the foreign court either would not have had jurisdiction according to
English rules or it applied a law other than that indicated by "the United Kingdom rules
of private international law", and would have reached a different conclusion by that
route .77
27.61 (b) Against states other than the United Kingdom. A judgment given by
foreign courts against a foreign state 78 will be recognised and enforced in the United
Kingdom provided, first, it would have been so recognised and enforced if the
defendant had been other than a state and, secondly, the foreign court would have had
jurisdiction in accordance with rules corresponding to the State Immunity Act 1978. 79 2.
Arbitral Awards As between Parts of the United Kingdom
27.62 An arbitral award enforceable in the same manner as a judgment is within
the definition of a judgment for the purposes of recognition and enforcement within the
United Kingdom. As such it may (but unlike a judgment not must) be enforced by
registration.80 Awards Made outside the United Kingdom
27.63 There are two international Convention frameworks providing for the
enforcement and recognition of arbitral awards in general and which apply to maritime
as to other arbitrations:
(i) under the Protocol of Arbitral Clauses 1923 and the Con vention for the
Execution of Foreign Arbitral Awards 1927 (enacted into English law by the Arbitration
Act 1950, Part II and in relation to States not parties to the New York Convention
continued by Arbitration Act 1996, section 99)
(ii) under the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards 1958 (now enacted under English law by the Arbitration Act
1996).81
The enforcement of an award is not within the European judgments regimes.
Because of the Convention arbitration regime enforcement in another country through
registration in the country of the award has been held to be also outside the
Convention.82 That seems justifiable provided enforcement of a judgment is not seen as
being outside the arbitration regime. 83 (a) Without registration (i) Under the Arbitration
Act 1950, Part II
27.64 An award may be enforced under the Arbitration Act 1950, Part II (i.e. under
the procedure of the Convention of 1927). A foreign award within the Convention
framework is enforceable in England either by action under the Act, by action at
common law or with leave of the High Court. 84 To fall within the Act an award must be
made under an arbitration agreement governed by a law other than English law, made
between persons, "subject to the jurisdiction" 85 of different States parties to the
Convention and in a territory of a contracting State. 86 Requirements of enforceability are —
much as for enforcement without the aid of statute —validity of the agreement by its
proper law, and of the award by the law governing the proceedings and finality of
judgment. In addition, the award must be in respect of a matter which could be referred
to arbitration in English law, and not contrary to En glish public policy.87 (ii) Under the
Arbitration Act 1996
27.65 An award may be enforced under the Arbitration Act 1996 as would a
domestic award 88 or under Part III, i.e. under the procedure of the New York
Convention. This replaces the Act of 1950 in respect of contracting States to that
Convention. An award within this Act is one "made in pursuance of an arbitration
agreement in the territory of a State other than the United Kingdom which is a party to
the New York Convention". 89 It is binding between the parties and may be relied on in
legal proceedings. It may be enforced by permission of the court as a judgment or order
to the same effect and where leave is given judgment may be entered. 90
27.66 An award is enforceable on the production of the authenticated award or a
certified copy (and translation where appropriate) and is to be refused only on a
specified ground—requirements of English public policy, 91 fitness of the matter for
arbitration or the establishment of one or specified grounds of defence by the defendant
(incapacity of a party to the agreement; invalidity; lack of notice of proceedings or
inability to present the case; inappropriate matters dealt with by the award; imp roper
composition of the tribunal; award not binding on the parties). Even if the defendant
establishes such a defence a court may enforce the award. 92 Where the enforcement
court is also the curial court it may exercise the power of both courts. If approp riate as
the curial court it may set aside or suspend the award. 93 (b) Through registration
27.67 A further route of enforcement is by registration under the Administration of
Justice Act 1 920 94 or Foreign Judgments (Reciprocal Enforcement) Act 1933. 95 The
provision of the Act of 1933 that no proceedings for the enforcement of the judgment
within the Act may be taken except though the Act does not apply to arbitral awards. 96
The Act is thereby extended to such awards in a manner consistent with the availab ility
of enforcement under the Arbitration Act 1996.
1. I.e. judgments given in courts outside England and Wales.
2. The Good Challenger [2003] EWCA Civ 1668 and cases cited. As to identity of
issues see also Air Foyle Ltd v. Center Capital Ltd [2003] 2 Lloyd’s Rep. 753.
3. The scope of s.34 is not restricted to proceedings in which a plaintiff is a party
from the start or where the proceedings are exclusively civil —it contemplates foreign
proceedings in which plaintiff and defendant have partic ipated to adjudge a dispute—so
an intervenor may be bound or a party where proceedings include civil and criminal
elements (Black v. Yates [1991] 1 Lloyd’s Rep. 181).
4. [1993] A.C. 410; [1993] 1 Lloyd’s Rep. 387.
5. The Indian Grace (No. 2) [1997] 1 Lloyd’s Rep. 1—the judgment delivered by
Lord Steyn, the other four members agreeing with it.
6. It was held that there was no estoppel to defeat the bar to the action.
7. As to the effect of the approach on the rule that there is no merger of a claim in
rem in a judgment in personam (and vice versa) see Chapter 25.
8. See (certifying a freezing injunction for enforcement in Switzerland) Normaco v.
Lundman (1999) The Times, 6 January.
9. See Masters v. Leaver [2000] I.L.Pr. 387 (C.A.). Cp Murthy v. Sivajothi (fn.
42).
10. See Showlag v. Mansour [1994] 2 All E.R. 129 (Privy Council sitting on
appeal from Jersey considering English and Egyptian judgments). In the case the focus
of conduct was on the obtaining of the second judgment but the principle must apply
generally.
11. But the same principle will prohibit reliance on a foreign judgment subsequent
to settlement of the claim in an English action in which the issu es on which the foreign
judgment was given could have been raised. See E.D. and F. Man (Sugar) Ltd v.
Hariyanto (No. 2) [1991] 1 Lloyd’s Rep. 429 (the principle being that a party should
raise all issues in the initial proceedings applying in respect of a foreign judgment). See
also fn. 50. As to the question of the extent to which a judgment or award between A and
B may be relied on in proceedings between B and C see Lincoln National Life
Insurance v. Sun Life Assurance of Canada [2005] 1 Lloyd’s Rep. 606.
12. And the Inferior Courts Judgments Extension Act 1882.
13. Including within the exclusions any part of any judgment concerning the legal
capacity of an individual or a provisional measure other than an order for interim
payment (s.18(5)(b)(d)), and foreign judgments registered for enforcement (s.18(7)).
14. The exceptions relate to Scottish decrees regarding the recovery of rent
charges and penalties and English orders having the effect of a judgment relating to fines
and forfeiture of recognisance for contempt of court.
15. Schedule 6 (money provisions), para. 6; Sch. 7 (non -money provisions), para.
6. Both paragraphs expressly provide that enforcement proceedings may be taken as if
the judgment had been given by the registering court.
16. Together with a copy, CPR 74.15, 74.16.
17. Schedule 6, para. 5.
18. Cf. CPR 74.16.
19. As to the procedure and supporting evidence see 74.16.
20. CPR 74.16(2).
21. Ibid., 74.16(4) applying 74.6.
22. The Civil Jurisdiction and Judgments Act 1982 (Gibraltar) Order 1997 (SI
1997/2602). Gibraltar was deleted from the list of countries to which the
Administration of Justice Act 1920 (see fn. 23) applies (SI 1997/260 1).
23. Under the Civil Jurisdiction and Judgments Act 1982, Sch. 4 replacing for the
purposes of the EC Regulation 44/200 1 and the Brussels and Lugano Convention the
Judgments Extension Act 1868 (concerning United Kingdom judgments); the
Administration of Justice Act 1920 (concerning Commonwealth judgments); the Foreign
Judgments (Reciprocal Enforcement) Act 1933 (concerning foreign and Commonwealth
judgments). Each statute specifies conditions of enforceability. The most important of
the statutory frameworks is that set out in the Act of 1933, the principles of which have
been extended to judgments of courts of countries parties to various Conventions
enacted into English law (see 27.54).
24. See Salvesen v. Admin. of Austrian Property [1927] A.C. 641, at p. 662.
25. A judgment in prize proceedings vests the property immediately as against the
whole world.
26. Compare Castrique v. Imrie (1870) L.R. 4 H.L. 414 with The City of Mecca
(1881) 6 P.D. 106.
27.[1982] 1 Lloyd’s Rep. 553.
28. See The Antonis P. Lemos [1984] 1 Lloyd’s Rep. 464 (C.A.)—see Chapter 2.
A complicated attempt to use the power to maintain maritime property under arrest
pending a judgment in foreign proceedings following a stay of English proceedings
although the judgment had already been given failed in The Sylt [1991] 1 Lloyd’s Rep.
240.
29. The Canadian courts have moved away from discrete requirements to a general
test of the foreign court having "real and substantial connection" with the case Beals v.
Soldenha 2003 SC 72. For comment see [2004] LMCLQ 288.
30. See Pemberton v. Hughes [1890] 1 Ch. 781; Adams v. Cape Industries Inc.
[1991] 1 All E.R. 929 at p. 1000. Distinguish, however, a defect in the jurisdiction from
an error in procedure which is no bar. It i s for the person seeking to enforce the
judgment to establish the competence of the court, ibid. p. 1031.
31. The fact that a judgment is under appeal does not mean that it is not final. See
e.g. The Irini A (No. 2) [1999] 1 Lloyd’s Rep. 189.
32. This is a requirement stated in respect of claim in personam (see e.g. Govt. of
India v. Taylor [1955] A.C. 491), but there is no reason in this respect to distinguish
between a judgment in personam and a judgment in rem.
33. Following upon the basis of enforcement—an obligation stemming from the
judgment. See e.g. Sadler v. Robins (1808) 1 Camp. 253. As a consequence a decree
(e.g.) of specific performance is not enforceable.
34. See Owens Bank Ltd v. Bracco [1992] 2 All E.R. 193 (H.L.); Vadala v. Lawes
(1890) 25 Q.B.D. 310, at pp. 316, 317; Syal v. Heyward [1948] 2 K.B. 443.
35. I.e. against some fundamental English view. See e.g. Re Macartney [1921] 1
Ch. 522. For a similar approach by a German court see Re Liability for Investment in
Futures Options [1999] I.L.Pr. 758. As to English public policy reflected in Protection
of Trading Interests Act 1980, see infra.
36. See Jacobson v. Frachon (1927) 138 L.T. 386 (ability to present case). The
concept is, however, not restricted to requirements of due not ice and ability to put a
case. So in Adams (fn. 30) the Court of Appeal held a judgment unenforceable where a
judge of a Texas court left it to plaintiffs’ counsel to divide up a global sum awarded
among the various plaintiffs without assessing the liabili ty of the defendants to each
plaintiff—the defendants having no notice of this approach. A final third party debt
order following an enforceable judgment will not be made if there is a real risk that
because of a foreign judgment or act the defendant may h ave to pay twice (Soinco Saci
v. Novokuznetsk Aluminium Plant (No. 2) [1998] 2 Lloyd’s Rep. 346).
37. Civil Jurisdiction and Judgments Act 1982, s.32. See infra.
38. See e.g. The Irini A (No. 2) (fn. 31).
39. See Minna Craig Steamship Co. v. Chartered Mercantile Bank of India
[1897] 1 Q.B. 55 (affirmed ibid., p. 460)—this authority would not seem affected by
The Halcyon Isle (as to which see Chapter 26) as there has always been a clear
distinction between enforceability of a foreign claim and of a foreign judgment.
40. Adams v. Cape Industries Inc. [1991] 1 All E.R. 929 following the English
rule of jurisdiction and holding against the hitherto favoured view. An earlier case
which could be cited in favour of presence as a ground ( Carrick v. Hancock (1895) 12
T.L.R. 59) could also be based on submission. The carrying on of business is not
sufficient to establish the "residence" of an individual. See Blohn v. Desser [1962] 2
Q.B. 116, at p. 123.
41. Adams v. Cape Industries Inc. [1991] 1 All E.R. 929 applying Littauer Glove
Corpn v. F.W. Millington Ltd (1928) 44 T.L.R. 746. In Adams the court refused to lift
the corporate veil where there was nothing illegal in the corporate structure so as to
treat the presence of the representative as the presence of the corporation.
42. A defendant’s voluntary entry in respect of a claim against him will also be
submission in regard to claims concerning the same subject matter or claims related to
the original claim. See Murphy v. Sivajothi [1997] 1 W.L.R. 467.
43. This provision which came into force on 24 August 1982 applies to England
and N. Ireland. Judgments given by courts required to be recognised or enforced by EC
Regulation 44/200 1 or the Brussels or Lugano Convention ( see supra) are excluded
(s.33(2) as amended by Civil Jurisdiction and Judgments Act 1991, Sch. 2, para. 15).
Civil Jurisdiction and Judgments Order 2001 (SI 200 1/3929), Sch. 2, para. 15.
44. See Chief Harry Akande v. Balfour Beatty Construction Ltd [1998] I.L.Pr.
110 applying Williams and Glyn ’s Bank v. Astro Dinemico Cia [1984] 1 All E.R. 760
(H.L.).
45. See Akai Pty Ltd v. People’s Insurances Co. Ltd [1999] I.L.Pr. 24 (citing
s.32(3) of the 1982 Act—but applying it as a matter of principle to s.3 3 the Akande case
(fn. 2)). Starlight International Inc. v. A.i Bruce [2002] I.L.Pr. 35.
46. Marc Rich v. Societa Italiana Impianti PA (The Atlantic Emperor No. 2)
[1992] 1 Lloyd’s Rep. 624.
47. See Chapter 9; The Eastern Trader [1996] 2 Lloyd’s Rep. 595.
48. The provisions of s.32 apply to all judgments coming before an English court
on or after 24 August 1982 regardless of when the foreign judgment was given, save for
those judgments specifically excluded by Sch. 13, Part II, para. 8(j). See Tracomin SA
v. Sudan Oil Seeds (No. 1) [1983] 3 All E.R. 137. As to s.32(3) see fn. 29. A
counterclaim for wrongful arrest may not be submission ( The Eastern Trader (fn. 46)).
49. See fn. 69.
50. So apart from fraud a defendant cannot prevent recognition or enforcement
through a plea that defences were not raised when they could have been raised —the
matter will be res judicata. See Israel Bank v. Hadjapateras [1983] 2 All E.R. 129.
51. See Barber v. Lamb (1860) 8 C.B. (N.S.) 95. But not if based on a tim e bar.
(See Harris v. Quine (1869) L.R. 4 Q.B. 653.) But see the Foreign Limitation Periods
Act 1984, s.3.
52. For status judgments the jurisdictional requirements are those appropriate to
status actions according to English conflicts of law rules. As to recognition of a foreign
court judgment as to immovables (which may be in rem), see Re Trepca Mines [1960] 1
W.L.R. 1273, at p. 1277.
53. See Castrique v. Imrie (1870) L.R. 4 H.L. 414. The precise date of the
requirement of control is loosely stated but it surely must be at the time of the judgment
if the judgment purports to create a right in rem or the action so creating it is
consequent on the judgment (e.g. sale).
54. Similarly, an English court will recognise the title acquired by a purchaser
through a sale in the course of administration on death or bankruptcy.
55. The Despina GK [1982] 2 Lloyd’s Rep. 555, following The City of Mecca
(1879) 5 P.D. 28 (at first instance). See Chapter 10 for comment on the distinction
between enforcement of foreign and English judgments by an action in rem and supra as
to jurisdictional uncertainty.
56. An English default judgment in an action in rem may be set aside "when the
justice of the matter requires" The Selby Paradigm [2004] 2 Lloyd’s Rep. 714 (an
underwriters successful application). See Chapter 10.
57. As amended in a minor way by the Civil Jurisdiction and Judgments Act 1982,
s.35(2)—(amending ss.10 and 14).
58. Administration of Justice Act 1920, ss.12, 13 and 14. The basis of the scheme
is reciprocity of enforcement and the machinery of enforcement set out in CPR 74
Section 1. Notice of registration must be served on the defendant. Permission is not
required to serve the notice out of England (r. 6). For a list of countries to which the Act
has been extended, see CPR 74.11.3. A judgment creditor may bring an action on the
judgment (see supra) instead of using the registration procedure —but this may lead to
deprivation of costs (see s.9(5)).
59. An application must be supported by written evidence exhibiting a certified
copy of the judgment and confirming its enforceability. An application may be made
without notice 74.3(2)(b). Where it is made without notice the du ty of disclosure and the
discretion of the court in respect of material non -disclosure is as with any such
application (Landhurst Leasing Plc v. Marcq [1997] I.L.Pr. 822 (C.A.)). As to the duty
of disclosure see Chapter 14.
60. See s.9(2). See e.g. Owens Bank v. Bracco [1992] 2 All E.R. 193 (H.L.).
61. As amended in scope by the Civil Jurisdiction and Judgments Act 1982,
s.35(1), Sch. 10, which substitutes text for s.1(1) and (2) and (10) and inserts ss.2A and
1 0A.
62. Not being by way of taxes, fine or other penalty, s.1(2). A sum representing
exemplary damages has been held not to be a penalty (see SA Consortium General
Textiles v. Sun and Sand Agencies Ltd [1978] Q.B. 279) but for a provision limiting
enforcement of a judgment for multiple damag es see the Protection of Trading Interests
Act 1980 (fn. 70).
63. The Civil Jurisdiction and Judgments Act extends the provisions of the Act of
1933 to courts other than "superior" courts and to arbitration awards enforceable as
judgments (see s.35(2), Sch. 10).
64. Extension is allowed only if there is substantial reciprocity. The Act has been
extended to specified foreign countries and a number of Commonwealth countries. See
CPR 74.11.5, 74.11.6.
65. The machinery for enforcement is, as with the 1920 Act, set out in CPR 74
Section 1.
66. Section 4(1)(a). The Protection of Trading Interests Act 1980, s.5(1),
specifically provides that no judgment prohibited from enforcement under that Act may
be registered.
67. Section 4(1)(b) .
68. Since the Foreign Limitation Periods Act 1984 came into force (i.e. as from 1
October 1985) a determination based on a time bar is a judgment on the merits (s.3).
69. See e.g. the Merchant Shipping Act 1995, ss.66(4), 177(4); the Nuclear
Installations Act 1965, s.17(4); the Carriage of Goods by Road Act 1965, s.4; Carriage
of Passengers by Road Act 1974, s.5; the International Transport Conventions Act 1983,
s.6. See also Art. 40 of the Convention relating to the Carriage of Hazardous and
Noxious Substances by Sea Act 1940 (Sch. 5A of the Merchant Shipping Act 1995 the
provisions to be brought into effect by Order in Council ( see Chapter 3)). As to the
effect of an action brought contrary to an agreement not to bring it in a foreign
jurisdiction, see s.4(3)(b) of the Act of 1933 which continues to apply to such judgments
registered before 24 August 1982 (Civil Jurisdiction and Judgments Act 1982, s.32(4),
Sch. 13, para. 8(3)).
70. Protection of Trading Interests Act 1980, s.7, as amended by the Civil
Jurisdiction and Judgments Act 1982, s.38. As to the general effect of the Act of 1980,
see 27.53, 27.54.
71. Given before or after enactment of the provision.
72. Section 5(1), (2) and (4), i.e. anti-trust matters. Including a claim for
contribution in respect of damages awarded by such a judgment (s.5(2)(c)). The
specification is through statutory instrument (s.5(5)). An order has been made specifying
s.81(1A) of the Trade Practices Act of Australia (SI 1988/569).
73. Given before or after enactment of the provision.
74. Section 5(1) and (2), i.e. a judgment arrived at by multiplying a sum assessed
as compensation (s.5(3))—aimed initially primarily at the treble damages possible
under the Clayton Act in the United States in respect of anti -trust actions. Such
prohibition may be seen as an extension of the rule that an English court will not enforce
a penalty but it is far from clear whether multiple damages would be considered as
such. The prohibition includes a claim for contribution to such damages (s.5(2)(c)). It
does not prohibit enforcement of identifiable quantifiable compensatory damages
awarded together with an identified multiplied damages. Query if the compensatory part
of a multiplied award is recoverable Lewis v. Eliades [2004] 1 W.L.R. 692 (C.A.).
There are provisions for recovery of any sums paid in excess of the compensation
element (s.6). See also EC Counter Measures Regulation (2271/96) implemented by SI
1996/3171 excluding s.6 of the 1980 Act to the extent that the Regulation provides for
the recovery of damages (reg. 3(2)).
75. See Chapter 28.
76. State Immunity Act 1978 , s.18.
77. Ibid., s.19. The reference to private international rules of the United Kingdom
ignores any difference between Scottish and English rules.
78. Civil Jurisdiction and Judgments Act 1982, s.31. A state includes a
government, a government department, the sovereign or Head of State in the public
capacity, judgments against entities distinct from government but exercising the
sovereign authority of the state (s.3(2)).
79. Judgments required to be recognised or enforced because of statutory
enactments of specified Conventions are excluded from this provision (see s.31(3)).
The rules of the 1978 Act are set out in ss.2 –11 (see Chapter 12).
80. Civil Jurisdiction and Judgments Act 1982, s.18(1)(2)(e)(8), Sch. 6. Unlike
judgments there is no provision prohibiting refusal of recognition or enforcement
because of lack of jurisdiction under the rules of private international law in which the
award was made (s.19(1)).
81. On 31 August 2000 118 states were parties. Initially enacted in UK by the
Arbitration Act 1975. There is also (i) the European Convention on International
Commercial Arbitration 1961, to which there are 19 parties but which the United
Kingdom has not ratified; and (ii) the Inter-American Convention on International
Commercial Arbitration 1975. See also Arbitration (International Disputes) Act 1966
enacting Convention provisions for the settlement of international investment disputes.
As to procedure for enforcement similar to judgments under the 1933 Act of awards
under the 1966 Act see CPR 62.21.
82. Arab Business Consortium and Investment Co . v. Banque France-Tunisienne
[1966] 1 Lloyd’s Rep. 485 (C.A.) ([1997] 1 Lloyd’s Rep. 531 —issue not raised).
83. See e.g. Victrix Steamship Co. SA v. Salen Dry Cargo AB (SDNY) [1987]
AMC 276 at p. 279. In the Arab Business Consortium case (fn. 80) Waller J.
commented that there was no suggestion that an award did not remain enforceable
despite it being translated into a judgment.
84. Arbitration Act 1950, ss.36(1) and 40(a). And without proceeding to a foreign
judgment (see, for the principle, Union Nationale des Cooperatives Agricoles v.
Catterall [1959] 2 Q.B. 44). For the application of domestic procedure to a foreign
award, see Dalmia Cement v. National Bank of Pakistan [1975] Q.B. 9.
85. I.e. reside and carry on business in two different states, the contract containing
the arbitration submission having resulted from such business ( Brazendale & Co. Ltd v.
Saint Freres SA [1970] 2 Lloyd’s Rep. 34).
86. The states must be declared by Order in Council to be parties to the
Convention of 1927. The current Order is the Arbitration (Foreign Awards) Order 1984
(SI 1984/1168) or be a territory declared to be within the Act. See SI 1989/1348,
Judgments and Settlements within a European judgments regime 1. The

1993/1256.
87. See the Arbitration Act 1950, s.37(1).
88. I.e. in the same manner as a judgment or order (s.66) or by action on the award
(s.104). As to these methods see Chapter 13.
89. Arbitration Act 1996, s.100(1), i.e. in a State which has become a party to the
Convention by the date on which proceedings to enforce the award are started. See
Govt. of the State of Kuwait v. Sir Frederick Snow & Partners [1984] 1 Lloyd’s Rep.
458 (H.L.). The award is treated as made at the seat of the arbitration regardless of
where it was signed, despatched or delivered to any of the parties ( ibid., s.100(2)(b)).
The seat is designated by the parties, institution or arbitral tribunal vested with power
by the parties or having regard to all the circumstances (s.3). See Chapter 13.
90. Arbitration Act 1996, s.101. As to enforcement of English arbitral awards (the
procedure adapted to foreign awards) see Chapter 25. A court should not normally
refuse permission out of the jurisdiction to enforce an award (as to which see CPR
62.18(4) when the grounds for enforcement are established. See Rosseel NV v. Oriental
Shipping Ltd [1991] 2 Lloyd’s Rep. 625.
91. An award made under an agreement to arbitrate a contract illegal by a foreign
law and unenforceable in England cannot be isolated from the underlying contract but it
is not necessarily against English public policy —the policy of upholding awards must
be balanced against the illegality taking into account that the tribunal may take a
different view as to the illegality ( Westacre Investments Inc. v. Jugoimport SDRR
Holding Co. Ltd [1999] 1 All E.R. (Comm.) 865 (C.A.); Omnium de Traitement et de
Valorisation SA v. Hilmarton Ltd [1999] 2 All E.R. (Comm.) 146; Soinco Saci v.
Novokuznetsk Aluminium Plant [1998] 2 Lloyd’s Rep. 337 (C.A.)). Compare
Soleimany v. Soleimany [1999] 3 All E.R. 847 (C.A.). See also [2000] LMCLQ 311.
92. Arbitration Act 1996, ss.102, 103.
93. Hiscox v. Outhwaite [1991] 3 All E.R. 641 (H.L.).
94. An arbitration award enforceable by the law of the place where made in the
same manner as a judgment of a court of that place is included within "judgment" for the
purposes of the Act (s.12(1)). As to enforcement provisions of that Act, see supra.
95. See s.10A (inserted by Civil Jurisdiction and Judgments Act 1982, Sch. 10) to
the same effect as s.12(1) of the Act of 1920 (as to which see fn. 92). The Act had been
extended in 1956 to arbitral awards made in countries to which the Act of 1920 applied
and to which it later applied (Administration of Justice Act 1956, s.51(1) —repealed by
the Act of 1982). The Act is specifically applied to arbitrations under the CMR
(Carriage of Goods by Road Act 1965, s.7).
96. See s.10A. Where a 1958 Convention award is converted into a judgment the
enforcement of the judgment may be stayed as any other judgment (see RSC Ord. 47, r.
1) but it will rarely be appropriate to order a sta y (Far Eastern Shipping Co. v.
Sovcomflot [1995] 1 Lloyd’s Rep. 520).
Chapter 28
General Pattern
28.1 A "European judgments regime" is one of that contained in EC Regulation
44/200 1, the Brussels or Lugano Conventions. 1 The relationship of the Regulation, the
Brussels and Lugano Conventions is discussed in Chapters 4 and 8. The EC Regulation
applies as between all EU Member Stat es save Denmark 1a and provides for the
recognition and enforcement as between those States of the European Union of court
judgments, authentic instruments and settlements. As between those States it supersedes
the Brussels Convention but that Convention co ntinues to apply as between those States
and Denmark. The Lugano Convention applies as between the Member States of the
European Union and Iceland, Norway and Switzerland ( see Chapter 8). Judgments
28.2 The provisions of the Regulation relating to judgment s are changed from the
Brussels Convention so as to simplify and hasten the enforcement procedure. A clear
distinction is drawn between (i) the initial procedure without notice to the defendant for
declaring judgments formally enforceable by the adjudicati ng state and acceptance of
the enforcement application by the enforcement state and (ii) the adversarial appellate
procedure to include consideration of any application for refusal of enforcement. Save
for the changes the decisions concerning the Conventio ns are clearly relevant to the
Regulation.
28.3 Apart from the change in enforcement procedure and the necessary provisions
for the relationship between them and two additional grounds of refusal in the Lugano
Convention, the "judgments" structure of the r egimes is identical. The structures apply to
any judgment within the scope of the Convention given by a court or tribunal of a
contracting State. The underlying principles are that (i) save for specified exceptions
jurisdictional enquiry is for the adjudic ating court and (ii) subject to specific and
limited exceptions, once a judgment is given on a civil and commercial matter by a
court of a contracting State and is enforceable there 2 it is to be recognised and enforced
in each contracting State.
28.4 Common grounds of non-recognition or non-enforcement are (i) where the
judgment is within the provisions in insurance consumer contract or exclusive
jurisdiction because of subject matter, lack of jurisdiction of the adjudicating court, (ii)
in all substantive judgments in proceedings there is one of the listed grounds of refusal
concerning the nature of the judgment or the proceedings leading to it, (iii) (save for
some proprietary claims) where Member States have agreed not to recognise judgments
based on exhorbitant jurisdiction—in the Regulation confined to agreements before 1
March 2002.
Under no circumstances may a judgment be reviewed as to its substance.
28.5 Under the Lugano Convention there are two further grounds relating only to
non-Community enforcement, one going to the lack of Convention jurisdiction in the
proceedings leading to the judgment and the other, more generally, requiring in specified
circumstances the judgment to be recognised or enforced according to the law of the
state addressed. These grounds are considered in detail later in this chapter.
Judgments and Settlements within a European judgments regime 1. The

28.6 Accompanying the specific grounds is a principle akin to issue estoppel —that
a judgment creditor should, once he has a judgment, seek to enforce that judgment and
not attempt to bring a further action on the same claim. 3 A judgment is however
enforceable even if not "res judicata" in the court issuing it—the sole criterion is its
enforceability by that court. 4
28.7 The "freedom of movement" of judgments means that s ecurity for costs in
proceedings is more difficult to obtain 5 and any discrimination between orders for
security for costs in a Member State in relation to proceedings in that state and in other
Member States is contrary to the Treaty of Rome. 6 In the view of the European Court the
territory of the contracting parties "may be regarded as constituting a single
entity"—"the condition for the enforcement of judgments and the risks connected with
the difficulties to which it leads are the same in al l the Member States". 7 The Link
between Recognition and Enforcement
28.8 Enforcement is ex hypothesi the focal point of enforcement proceedings but
recognition may be sought as the primary issue or as incidental to the outcome of other
proceedings. Recognition or enforcement may be sought by "any interested party". Save
that a judgment may not be enforced because of non -enforceability in the country of the
adjudicating court, grounds for non -recognition or non-enforcement are identical
whatever the context of the issue.8
28.9 Under the regimes subject to grounds of refusal, a judgment given in a
Member State must be recognised in every other Member State, whereas for
enforcement there must be enforceability in the state of origin and in the enforcement
state a declaration of enforcement or, in the United Kingdom, registration. 9 Further,
matters which go to the enforcement process should not affect the granting or an order
for enforcement. 10 Although in English law enforceability is linked to registration 11 it
has been said that there is no reason to "inhibit registration" under the Convention by
matters going specifically to enforcement. There are opportunities under the domestic
system to make points in relation to events happening after registration aga inst
enforcement after registration. 12 Under the Regulation such matters are not relevant to a
declaration of enforceability. 13 “Authentic Instruments” and Court Settlements14
28.10 There is provision for the enforcement of settlements and authentic
instruments and adapt the judgments process to settlements. The "authentic instrument" is
not known to English law but in some legal systems (including that of Scotland) a
specified type of instrument once registered may be enforced as if it were a judgmen t.15
To be enforced as such the authenticity must be established by an authority empowered
to do so or a public authority. 16
28.11 An authentic instrument drawn up or registered and enforceable in one state
is to have an order for its enforcement issued in another on application made in
accordance with the procedure for enforcing judgments. A settlement approved by a
court in the course of proceedings and enforceable where it was concluded, is
enforceable in another Member State under the same conditions as an authentic
instrument. The sole ground for non -enforcement is that it is contrary to the public
policy of the enforcement state. An authentic instrument or settlement is not a judgment
unless given as such by a court and it is not open to a defendant to rely on an instrument
or settlement as an irreconcilable judgment. 17 It is therefore essential for full and
conclusive effect that in any settlement of an action the terms be i ncorporated in a
judgment.18 2. Judgments within the Regimes “Civil or Commercial Matters”
28.12 As with jurisdiction, whether a judgment concerns a civil or commercial
matter is a regime concept. It remains for the recognition or enforcement court to deci de
whether the judgment falls within this category, whether or not the adjudicating court has
also made a finding. 19 So whether a judgment in a matter excluded from the regime is
within the enforcement provisions depends on the legal effects of the judgmen t under the
national law of the enforcement court. 20 The enforcement court is not bound by any
decision of the adjudicating court whether the matter is within the regime, but in no case
will there be any review of the substance of the judgment ( see below). Connection
with a Member State
28.13 The primary connecting factors of the substantive jurisdiction and judgment
structures are different—in jurisdiction it is the domicile of the defendant, in judgments
the judgment of a court of a contracting Sta te. Further, unlike jurisdiction, there are no
exceptions to the basic rule of applicability, in that the regimes do not purport to
concern themselves with a judgment of a non -Member State. Types of Judgments
28.14 "Judgment" includes "any judgment given b y a court or tribunal of a
Contracting State whatever the judgment may be called, including a decree, order,
decision or writ of execution as well as the determination of costs or expenses by an
officer of the court". 21 Judgments in action “in rem”
28.15 It is clear from the judgment of the European Court in The Maciej Rataj 22
and the Court of Appeal in The Deichland23 that for the purposes of the Convention the
action in rem is as such simply a matter of national procedure. The description may
have relevance in identifying the parties to an action but it poses no difficulty in respect
of recognition or enforcement. The judgment will be enforced "against" such defendants
as have either appeared or, having received notice, failed to appear. The procedure for
service of an in rem claim form may, however, be relevant to recognition or
enforcement in deciding on whether and by which document a defendant is informed of
proceedings (see below). Limitation of liability—establishment of a limitation fund
28.16 An order establishing a liability limitation fund in respect of a maritime
claim is a judgment within the regime. 24 In so holding the European Court stressed that a
decision on an interlocutory or provisional matter may fall within the definition. It is no
objection that the order was uncontested given that it would not have any force until
notified to the parties and was then open to challenge. Orders in proceedings where no
notice given to other party
28.17 The definition of judgment is wide, including bo th interim relief and final
judgment,25 but must be read in the context of the regime as a whole. It is only judgments
in proceedings in which the defendant had the opportunity to put his case which are to
be enforced or recognised. This is demonstrated by the provision that a judgment may
be challenged on the ground that the defendant has not had that opportunity ( see infra). It
follows, therefore, that although a default judgment quali fies for enforcement provided
notice has been given, an order obtained ex parte does not.26 While therefore an order
for arrest of a ship or an injunction is within the Convention, recognition or enforcement
is an obligation only if the order is made after the defendant has been given the
opportunity to oppose the making of the order. Ancillary or procedural orders
28.18 Orders for costs are expressly included in the regime framework but the
structure does not provide for interest on judgments. Article 43 r ecognises the
enforcement of judgments for periodic payments by way of a penalty —a provision
aimed apparently at least in part at judgments ordering such payments because of delay
in payment of money due. 27
28.19 According to Schlosser ancillary orders going to the production of evidence
at a trial or conduct of a trial are not included for the reasons, first, that the Member
States (with the exception of Ireland) are parties to the Hague Conventions of 1965 and
1970 on the service abroad of judicial documents and the taking of evidence abroad,
and the original members to the Hague Convention on Civil Procedure 1954. As
between Member States save Denmark those Conventions have been superseded by
Council Regulations, and hence the topics governed by European law. 28 Secondly, says
Schlosser, the parties would be unable to comply with any order in respect of the
conduct of foreign proceedings without the co -operation of the foreign court. 29
Procedure or substance—who controls?
28.20 The Schlosser report reads—
"191. The effects of a court decision are not altogether uniform under the legal
system obtaining in the Member States of the Community. A judgment delivered in one
State as a decision on a procedural issue may, in another State, be treated as a decision
on an issue of substance. The same type of judgment may be of varying scope and effect
in different countries. In France, a judgment against the principal debtor is also effective
against the surety, whereas in the Netherlands and Germany it is not.
The Working Party did not consider it to be its task to find a general solution to the
problems arising from these differences in the national legal systems."
28.21 Although there will be difficulties on the borderline, a s Schlosser indicates,
it seems clear that a procedural order in the course of a trial is not a "judgment" within
the regime in that the process is aimed at determination of substantive rights —although
provisional or protective measures such as seizure or maintaining a status quo are
judgments for this purpose. But apart from procedural orders it should not be open to an
enforcement court to take its own view of the scope of a judgment. An enforceable
judgment must have in principle the same substantive eff ect in the enforcement state as
in the state in which it was issued. 30 Any refusal to enforce must be on one of the regime
grounds, particularly as regards public policy ( see infra).
28.22 The difficulties which will be created by any other approach are
demonstrated by Schlosser’s assertion of the effect of a judgment declining jurisdiction:
"Judgments dismissing an action as unfounded must be recognised. If a German
court declares that it has no jurisdiction, an English court cannot disclaim its own
jurisdiction on the ground that the German court was in fact competent. Clearly,
however, German decisions on procedural matters are not binding, as to the substance,
in England. An English court may at any time al low (or, for substantive reasons,
disallow) an action, if proceedings are started in England after such a decision has been
given by a German court" (para. 191).
28.23 On the other hand it is for the enforcement court to decide if the judgment is
within the regime. So to the extent that a boundary line is based on the distinction
between substance and procedure it will be the enforcement court which applies it.
Judgments on judgments
28.24 What of a judgment recognising or enforcing another judgment? So far as
judgments given in proceedings mounted in a isember State are concerned there is no
point in seeking such an order. On the other hand, to require enforcement of an order of
a court of a Member State enforcing a judgment of a court of a non -Member State would
have meant using the framework to enforce judgments of non -Member States.
28.25 In Owens Bank v. Bracco31 the European Court held that the Brussels
Convention had no application to judgments of non -contracting States. The court
stressed that the provisions for enforcement had to be read in the context of the
Convention definition of judgment, and that the conferring of exclusive jurisdiction on
an enforcement state in respect of enforcement of judgments had also to be read in
conjunction with that article. 32 Furthermore the Court held that no distinction could be
drawn for the purpose of assessing the application of the Convention between an order
for enforcement and an issue arising in enforcement proceedings. So Articles 21 and 22
of the Convention concerning concurrent proceedings had no application when
enforcement proceedings were first taken in Italy in respect of a judgment of a court of a
non-contracting State and then (concurrently) in England. 33 Judgments within other
Conventions given precedence
28.26 There are provisions with the relationship of the regimes to other
Conventions concerning jurisdiction or judgments. Listed Conventions are specifically
superseded insofar as the appropriate regime 34 applies. Article 59 of the Brussels and
Lugano Conventions provides expressly that a contracting State may assume an
obligation not to recognise or enforce judgments on substantive matters against a party
not domiciled in a contracting State based only on "exorbitant jurisdiction" grounds.
Article 72 of the Regulation provides similarly but only as to obligations assumed prior
to 1 March 2002. Such an obligation is a ground of non -recognition or non-
enforcement.35
28.27 The preservation of provisions which "govern the recognition or
enforcement of judgments" in Conventions on particular matters is at large in the
Brussels and Lugano Convention. In the Regulation it is limited to Conventions to which
Member States became parties prior to 1 March 2002. 36 The restriction poses
difficulties for Member States (save Denmark) in relation to Conventions on substantive
matters entered into after the Regulation became binding on them. The practice is
developing of the taking of Council decisions to allow (and on occasion to urge) them to
become parties (see Chapter 6).
28.28 The recognition and enforcement of judgments falling within the regimes and
another Convention is therefore first a matter for the application of the other
Convention. With a view to the uniform interpretation of the "other Convention" rule it
is provided in the Regulation (Article 71.2):
"judgments given in a Member State by a court in the exercise of jurisdiction
provided for in a convention on a particular matter shall be recognised and enforced in
origin and the Member State addressed are parties lays down conditions for t he
enforcement of judgments may be applied." 37
The wording of the Brussels Convention is substantively identical.
28.29 As a consequence a judgment falling within the appropriate regime is to be
recognised and enforced as if it was within the Brussels Convention, subject only to the
application of conditions of the other Convention if the coun tries of both adjudicating
and enforcement court are parties to the other Convention. That the regime procedural
provisions the Convention "may be applie"’ presumably simply emphasises their
availability if a national law wishes to adopt them.
28.30 Many of the Conventions specified as being superseded are concerned with
the general provision of mutual recognition and enforcement of judgments. Even if a
Convention of this type is not specified it is difficult to see how it would qualify for
continuation. To do this a Convention must relate to a particular matter and "particular"
cannot include the general question of recognition and enforcement of judgments which
is at the very heart of the regimes. “Maritime Conventions” given precedence
28.31 Some Conventions relating to particular matters in maritime law which have
jurisdiction provisions and which are discussed in Chapter 6 also have "recognition and
enforcement" provisions. The following contain recognition and enforcement
provisions.
The CMR
28.32 Article 3 1(3) and (4) provides:
"3. When a judgment entered by a court or tribunal of a contracting country in any
such action as is referred to in paragraph 1 of this article has become enforceable in that
country, it shall also become enforceable in ea ch of the other contracting States, as soon
as the formalities required in the country concerned have been complied with. The
formalities shall not permit the merits of the case to be re -opened.
4. The provisions of paragraph 3 of this article shall apply to judgments after trial,
judgments by default and settlements confirmed by an order of the court, but shall not
apply to interim judgments or to awards of damages, in addition to costs against a
plaintiff who wholly or partly fails in his action."
Judgments otherwise within a judgments regime will be governed by this provision
only insofar as the judgment falls within Article 3 1(4) of the CMR. If it does and if both
states are parties, however, it is arguable that once formalities are complete in the
adjudicating state the judgment is enforceable in the enforcement state. The defences of
the regime would seem to have no application. It would not seem possible to argue
consistently with the purpose of Article 57 that the lack of provision for any defences
means that once enforceable under the CMR the case moves back to the Brussels
Convention. Unlike the omission of a particular aspect such as concurrent proceedings
the provision of enforceability without any defence is as "positive" a condition as
provision for a defence. 38 However, it may be arguable that the use of "formalities" in
conjunction with the national law and prohibition on reopening of the merits could be
the foundation for the applicability of national law defences such as fraud and natural
justice.
The Oil Pollution Convention 1992
28.33 The Liability Convention provides in Article X:
"1. Any judgment given by a Court with jurisdiction in accordance with A rticle IX
which is enforceable in the State of origin where it is no longer subject to ordinary
forms of review, shall be recognised in any Contracting State, except:
(a) where the judgment was obtained by fraud; or
(b) where the defendant was not given reasonable notice and a fair opportunity to
present his case.
2. A judgment recognised under paragraph 1 of this Article shall be enforceable in
each Contracting State as soon as the formalities required in that State have been
complied with. The formalities shall not permit the merits of the case to be re -opened."
Article 8 of the Fund Convention provides similarly.
28.34 As with jurisdictional matters it is suggested that these provisions establish
a code (however basic) for recognition and enforcement. As a consequence it is to the
Liability and Fund Conventions that attention must be directed for any limitation on or
conditions of recognition and enforcement.
The Maritime Liens and Mortgage Conventions 1926, 1967 and 1993
28.35 It is arguable that a duty to recognise and enforce any judgment in respect of
liens, mortgages and other security interests in a ship is implied from the frameworks of
these Conventions, particularly as regards judicial sale. The Convention of 1967
(Article 11) refers specifically to the effect of a forced sale in freeing the ship from
(with specified exceptions) encumbrances. The Convention of 1993 (Article 12)
provides that apart from those assumed by a purchaser with consent all registered
mortgages, liens and encumbrances cease to attach to the vessel. Conventions on
liability in respect of nuclear incidents
28.36 The Paris Convention 1960 (as amended) (Article 13) and the Vienna
Convention 1964 (Article XII) provide for the enforcement of judgments in sufficie nt
detail, it would seem, to remove the issue from the Brussels and Lugano Conventions.
The HNS Convention 1996 39
28.37 Article 40 is in terms of judgment against a shipowner identical to that of the
Oil Pollution Liability Convention and, omitting the exc eptions, as regards judgments
against the HNS Fund. 40 Conventions not yet in force in respect of which there are
Council decisions 41
The 2003 Protocol to the Fund Convention
28.38 This provides for a third tier of compensation, the Supplementary Fund ( see
Chapter 6). The judgments provision (Article 8) is in the terms of Article X of the
Liability Convention. By Council Decision of 2 March 2004 EU Member States are
authorised to accede to it and in re spect of Austria and Luxembourg to become parties
to the Liability and Fund Conventions.
The Bunkers Convention 2001
28.39 This provides for compensation for damage suffered as the result of spills of
oil carried as fuel in ships’ bunkers. The judgments provision (Article 10) is in the same
terms as Article X of the Liability Convention. By Council Decision of 19 September
2002 Member States are authorised to ratify or accede and to make efforts to do so by
10 September 2002. They are to make the declaration that "Judgments on matters
covered by the Convention when given by a court [of a member state save Denmark] be
recognised and enforced in [the declaring Member State] according to the relevant
internal Community rules on the subject". The Convention grounds of non enforcement
are not identical with the Regulation. There may therefore still be potential conflict
unless the declaration is restricted to methods of enforcement.
The 2002 Protocol to the Athens Convention
28.40 There is a proposed Council Decision that the Community become a party to
the Protocol (and hence the Convention as a whole), and that Member States should
become parties. 42
The HNS Convention
28.41 By Council Decision of 18 November 2002 Member States are author ised to
ratify or accede. A declaration as to judgments as for the Bunkers Convention is to be
made. 3. The Jurisdiction of the Recognising or Enforcing Court
28.42 Subject to the question of recognition arising incidentally the court in which
a judgment has been or will be enforced has exclusive jurisdiction in respect of
proceedings concerned with the enforcement of judgments. 43 It is for the enforcement
court to be satisfied that the matter is within the Convention having regard to its nature
and subject matter (i.e. is concerned with a civil and commercial matter), that
recognition or enforcement is not governed by a Convention given precedence and that
where it is sought to enforce a judgment the judgment is "enforceable" in the state of
origin.44
28.43 Once so satisfied the judgment must be recognised unless there is a ground
for refusal or there are grounds for a stay of proceedings. The grounds of refusal go in a
very limited number of cases to the jurisdiction of the adjudicating court, a nd generally
to public policy, default of appearance in the adjudicating court, irreconcilability of
judgments, or (in the Convention) a preliminary question of status. Under no
circumstance is the judgment to be reviewed as to substance. Recognition may b e stayed
in specified circumstances if there is an appeal against the judgment at issue.
28.44 Under the Regulation the enforcement procedure at the initial stage is
changed from that of the Conventions. On application compliance with the formalities
and production of a copy of the judgment and supporting certificate the judgment is to be
declared enforceable. The grounds of refusal (as for recognition) are to be considered
only on appeal. Under the Conventions the grounds for refusal a re to be considered at
the application stage. 4. Grounds of Non-Recognition or Non-Enforcement 1.
Relevance of Jurisdiction of Adjudicating Court
28.45 Under any of the judgment regimes judgment may not be recognised or
enforced on a ground going to the jurisdiction of the court of the contracting State of
origin only if:
(i) the case is within the structure applicable to insurance or consumer contracts
and there was no jurisdiction according to that structure;
(ii) the case is within the "exclusive jurisdiction" category based on subject matter
and there was no jurisdiction within it;
(iii) the case is within a Convention imposing an obligation of non -recognition.45
28.46 An additional ground going to the jurisdicti on of the adjudicating court
appears in the Lugano Convention (Articles 28, 54B(3)). Recognition or enforcement
may be refused if:
(i) the ground of jurisdiction of the proceedings on which the judgment was based
differs from "that resulting from" the Co nvention, and
(ii)recognition or enforcement is sought against a party domiciled in a contracting
State which is a non-Community State, and
(iii) the judgment would not be recognised or enforced by any rule of law in the
state addressed.
28.46A This is an exception to the idea of a Convention recognition and
enforcement code without reference to the ground of jurisdiction on which the judgment
is based. The national law of the state addressed (not necessarily that of the defendant’s
domicile) becomes a critical factor if the judgment is not based on Convention
jurisdiction ground—and depending on that law there may be an enquiry into the
jurisdiction of the adjudicating court.
28.47 Unless therefore the case falls within one of the categories list ed, refusal
cannot be based on the ground that the proceedings in which the judgment was given
were without jurisdiction. 46 Even in regard to these categories the enforcement court is
bound by findings of fact on which the adjudicating court based its juri sdiction. In no
other type of case may a judgment not be recognised or enforced on the ground that it is
given in proceedings without Convention jurisdiction. The ground of "public policy"
forming a ground of non-recognition or enforcement may not be appli ed to jurisdiction
rules. Judgments based on the extended “exorbitant” jurisdiction set out in Article 3
(Article 59 of the Conventions)
28.48 Article 4 provides that specified rules of national law of "exorbitant
jurisdiction" outlawed by Article 3 in respect of defendants domiciled in a contracting
State may be relied on in respect of a defendant not domiciled in a contracting State by a
person domiciled in a contracting State, whatever his nationality, in the sam e way as
nationals of that state. So, in this respect rules of jurisdiction dependent on connections
too slight to be Regulation or Convention jurisdiction bases are extended by them ( see
Chapter 4).
28.49 To meet concern expressed by countries outside the Community (in
particular the United States), subject to limitations, the Conventions permit a contracting
State to enter into a Convention with a non -contracting State imposing an obligation not
to recognise a judgment in proceedings the jurisdiction of which can be based only on
the grounds set out in Article 3.
28.50 Article 59 of the Conventions provides:
"This Convention shall not prevent a Contracting State from assuming, in a
convention on the recognition and enforcement of judgments, an obligation towards a
third State not to recognise judgments given in other Contracting States against
defendants domiciled or habitually resident in the third State where, in cases provided
for in Article 4, the judgment could only be founded on a ground of jurisdiction
specified in the second paragraph of Article 3. 47
However, a Contracting State may not assume an obligation towards a third State
not to recognise a judgment given in another Contracting State by a court basing its
jurisdiction on the presence within that State of property belonging to the defendant, or
the seizure by the plaintiff of property situated there:
if the action is brought to assert or declare proprietary or possessory rights in that
property, seeks to obtain authority to dispose of it, or arises from another issue relating
to such property, or
if the property constitutes the security for a debt which is the subject -matter of the
action."
To give express Convention force to Article 59 it is provided by Article 28 that a
judgment to which such an obligation attached is not to be recognised. 48
28.51 Save for agreements entered into prior to the Regulation 49 (1 May 2002) the
provisions of Article 59 of the Brussels Convention are deleted from the Regulation.
Apart from obligations already undertaken such an obligation would not be consistent
with Community rules of recognition. 2. Grounds Other Than Jurisdiction of the
Adjudicating Court
28.52 Article 34 (as applied to enforcement by Article 45) provides that a
judgment shall not be recognised:
if such recognition is manifestly contrary to public policy in the State in which
recognition is sought;
where it was given in default of appearance, if the defendant was not served with
the document which instituted the proceedings or with an equivalent d ocument in
sufficient time and in such a way to enable him to arrange for his defence, unless the
defendant failed to commence proceedings to challenge the judgment when it was
possible for him to do so.
if it is irreconcilable with a judgment given in a dispute between the same parties
in the Member State in which recognition is sought;
if the judgment is irreconcilable with an earlier judgment given in a another
Member State or in a third State involving the same cause of action and between the
same parties, provided that this latter judgment fulfils the conditions necessary for its
recognition in the Member State addressed." 50
28.53 An additional ground in the Lugano Convention (Articles 28, 57(4)) is
where:
(i) the recognising or enforcement state is not a party to any relevant preserved
Convention and
(ii) the defendant is domiciled in the recognising or enforcement state and
(iii) the judgment may not be recognised or enforced under any rules of law of that
state.
In effect this means that save where the governing Convention is applicable no
judgment may be enforced or recognised in a state in which the defendant is domiciled
unless the law of that state permits it. As a consequence, therefore, the Conventio n
grounds are additional to instead of in substitution for the national laws —an approach
wholly contrary to that of the Brussels Convention. Grounds common to EC Regulation
44/2001 and the Brussels and Lugano Conventions (i) Public policy
28.54 It is provided that "a judgment shall not be recognised if such a judgment is
manifestly contrary to public policy in the Member State in which recognition is
sought".51 Clearly if this were to be interpreted broadly it could destroy the Convention
structure and just as clearly the intention is that it should be confined to the "fundamental
principles" at the heart of the legal system of the recognition and enforcement court. 52
This has been described by the German Federal Supreme Court as "so strongly cont rary
to the basic considerations behind the German rules and concepts of justice and . . .
unacceptable in a domestic situation", 53 while a French court has emphasised the need
to assess the matter in the light of the international public policy of the enforcing court. 54
28.55 One obvious ground for consideration is the obtaining of a judgment by
fraud. Of this Schlosser says (para. 192):
"The 1968 Convention does not state in te rms whether recognition may be refused
pursuant to Article 27(1) on the ground that the judgment has been obtained by fraud.
Not even in the legal systems of the original Contracting States to the 1968 Convention
is it expressly stated that fraud in obtaining a judgment constitutes a ground for refusing
recognition. Such conduct is, however, generally considered as an instance for applying
the doctrine of public policy. The legal situation in the United Kingdom and Ireland is
different inasmuch as fraud constitutes a special ground for refusing recognition in
addition to the principle of public policy. In the conventions on enforcement which the
United Kingdom concluded with Community States, a middle course was adopted by
expressly referring to fraudulent conduct, but treating it as a special case of public
policy.
As a result there is no doubt that to obtain a judgment by fraud can in principle
constitute an offence against the public policy of the State addressed. However, th e
legal system of all Member States provide special means of redress by which it can be
contended, even after the expiry of the normal period for an appeal, that the judgment
was the result of a fraud (see paragraph 197, et seq). A cou rt in the State addressed must
always, therefore, ask itself, whether a breach of its public policy still exists in view of
the fact that proceedings for redress can be, or could have been lodged in the courts of
the State of origin, against the judgment allegedly obtained by fraud."
If fraud is alleged and there are means of redress in the issuing court there would
be no breach of English public policy in recognising the judgment. 55 Where the foreign
Convention court has ruled on the matters now asserted, an English court will not
review them—the "fraud" ground had to be read subject to the prohibition on review of
substance.
28.56 Apart from fraud any ground of "public policy" requires particular
justification and is applicable only in exceptional cases. 56 The other express grounds of
refusal (see below) cannot form grounds of "public policy" and refusal on such a ground
must be justified on that ground (as, for example, irreconcilable judgments). 57 Subject to
any estoppel operating against the person relyi ng on the judgment, an English court
should not normally entertain a challenge to a Convention judgment on grounds of public
policy where it would not permit a challenge to an English judgment. 58
The anti-suit injunction and public policy
28.57 It is perhaps ironic that the rather spectacular increase in the use by English
courts of this remedy (see Chapter 25) coincided with the need for recognition by courts
of Member States of the Brussels and Lugano Conventions of the Convention
jurisdictional principles. However, it seemed to undermine the underlying mutual
obligation on which the Convention regime has to be based. 59 So it was held in 2004 by
the European Court in Turner v. Grovit.60 So the English decisions granting such
injunctions within the Community have now no force in particular in the context of
judgments to the holding that a judgment of a Community court obtained after an English
anti-suit injunction was not recognisable on the ground of public policy. 61 (ii) The
defendant's opportunity to put his case
28.58 The provision reads that a judgment shall not be recognised "where it was
given in default of appearance, if the defendant was not served with the document which
instituted the proceedings or with an equivalent document in sufficient time and in such
a way as to enable him to arrange for his defence" unless the defendant failed to
commence proceedings to challenge the judgment when it was possible for him to do
so.61a
28.59 The changes from the Conventions (see n.??) (i) clarify the need to serve the
defendant not only within the appropriate time but in the appropriate way, and (ii)
impose an obligation on a defendant who learns of the judgment to act in his own
defence. 62
Connection with like jurisdiction requir ement
28.60 In the Regulation it is provided that service of documents in Member States
(save Denmark) is governed by Regulation 1348/2000, and where that does not apply
the Hague Convention on Service of Documents Abroad. Where neither apply the rule of
the Regulation is that a court before which a case is brought against a defendant not
domiciled in that state must stay the proceedings so long as it is not shown that (i) the
defendant has been able to receive the document instituting the proceedings or an
equivalent document in sufficient time to enable him to arrange for his defence or (ii) all
necessary steps have been taken to this end. 63 Whatever the source of the service
process the issue in any recognition or enforcement proceedi ngs of a judgment obtained
in the absence of a defendant is whether, the adjudicating court having had the
opportunity and duty to consider the validity of service, an enforcement court can also
consider it.
28.61 In Pendy Plastic Products v. Pluspunkt Handelsgesellschaft Mbh 64 the
European Court held that the question of compliance of service is also within the
jurisdiction of the enforcement court. After viewing the terms of Article 27(2) and
Article 20 of the Convention the Court said:
" . . . although they do not seek to harmonise the different systems of service abroad
of legal documents which are in force in the Member States the provisions of the
Brussels Convention are designed to ensure that the defendants rights are effectively
protected. For that reason jurisdiction to determine whether the document introducing
the proceeding was properly served was conferred both on the court of the original
State and on the court of the State in which enforcement is sought. Thus, in accordance
with the objective of Article 27 of the Convention, the court of the State in which
enforcement is sought must examine the question posed by paragraph (2) of that Article,
notwithstanding the decision given by the court of original State on the basis of the
second and third paragraphs of Article 20. That examination is subject only to a
limitation set by Article 34(3) to the Convention to the effect that the foreign judgment
may under no circumstances be reviewed as to its substance." 65
The Court therefore concluded that the matter of compliance with Article 27(2)
was within the jurisdiction of the enforcement court. The reasoning and conclusion
apply to the Regulation (Article 34.2).
The requirements
28.62 The requirements of the Brussels Convention are: (i) t hat the defendant has
been "duly served" with the appropriate document; and (ii) that that service was in
sufficient time to enable the defence to be arranged. The first requirement
"entails a decision based on the legislation of the State in which judgmen t was
given and on the conventions binding on that State in regard to service whilst the
second, concerning the time necessary to enable the defendant to arrange for his
defence, implies appraisals of a factual nature. A decision concerning the first of th ose
conditions made in the State in which the judgment was given accordingly does not
release the court in the State in which enforcement is sought from its duty to examine the
second condition, even if that decision was made in the context of separate adv ersary
proceedings." 66
In the Regulation the omission of "duly" and the additional reference to the way of
service does not affect this analysis ( see 28.58).
SERVICE
28.63 If there is a decision by the adjudicating court that there was proper service
in that state in accordance with that law it may be difficult for the enforcement court to
go behind it. However, it may be open to the enforcement court to consider the matter if
service is on the defendant in a state other than that of the adjudicating court and is
governed by a Convention. Even more so would this apply if between the countries the
"service" was on the defendant in the territory of the enforcement court and a
Convention governs both the adjudicating and the enforcemen t court. In Thierry
Noirhomme v. David Walklate 68 in considering if there was due service under the
Brussels Convention no point was taken as to the power of the English court (as the
enforcement court) to enquire into service in England of Belgian proceed ings in the
context of the provisions of the Hague Convention on the Service of Documents Abroad
1965.69
SUFFICIENT TIME FOR PREPARATION OF DEFENCE
28.64 The second requirement qualifies the effect of national law rules of service.
It is irrelevant for the application of the provision that the defendant resides within the
territory of the adjudicating court. In so holding in Debaecker v. Bouwman 70 the
European Court said that the provision takes account of the fact that certain contracting
States make provision for:
" . . . the fictitious service of process where the defendant has no known place of
residence. The effects that are deemed to follow from such f ictitious service vary and
the probability of the defendant’s actually being informed of service, so as to give him
sufficient time to prepare his defence, may vary considerably, depending on the type of
fictitious service provided for in each legal system ."
The Court concluded:
"For that reason [the requirement] must be interpreted as being intended to protect
the right of a defendant to defend himself when recognition of a judgment given in
default in another Contracting State is sought, even if the rules on service laid down in
that Contracting State were complied with." 71
28.65 Assessing whether there has been sufficient time is a matter of balancing the
freedom of judgments with the need to protect the defendant’s right to a fair hearing. So
the relevant period was that between service of the initiating document and the date
when appearance would prevent the issuing of a default judgment. 72
The scope for enquiry by the enforcement court
28.66 In reviewing the area open to investigation to the enforcement court in
considering this question, the European Court said (construing the Brussels Convention)
in Klomps v. Michel:
" . . . having regard to the exceptional nature of the grounds for refusing
enforcement and to the fact that the laws of the C ontracting States on the service of court
documents like the international conventions on this subject have as their objective the
safeguarding of interests of the defendants, the court in which enforcement is sought is
ordinarily justified in considering that, following due service, the defendant is able to
take steps to defend his interest as soon as the document has been served on him at his
habitual residence or elsewhere. As a general rule that court in which enforcement is
sought may accordingly confine its examination to ascertaining whether the period
reckoned from the date on which service was duly effected allowed the defendant
sufficient time to arrange for his defence. Nevertheless the court must consider whether,
in a particular case, there are exceptional circumstances which warrant the conclusion
that although service was duly effected it was however inadequate for the purposes of
enabling the defendant to take steps to arrange for his defence and accordingly could n ot
cause the time stipulated by [the Convention] to begin to run. " 72a
The Court continued:
"In considering whether it is confronted with such a case the court in which
enforcement is sought may take account of all the circumstances of the case in point,
including the means employed for effecting service, the relations between the plaintiff
and the defendant or the nature of the steps which had to be taken in order to pre vent
judgment from being given in default. If, for example, the dispute concerns commercial
relations and if the document which instituted the proceedings was served at an address
at which the defendant carries on his business activities the mere fact that the defendant
was absent at the time of service should not normally prevent him from arranging his
defence, above all if the action necessary to avoid a judgment in default may be taken
informally and even by a representative." 73
28.67 It is open to the enforcement court to hold that there was inadequate service
although at the time service was effected it appeared to be adequate. In considering
whether there were exceptional circumstances showing that due service was inadequate
a court is not restricted to circumstances which were apparent at the time service was
effected. Again construing the Brussels Convention Debaecker v. Bouwman the
European Court said:
"If the circumstances to be taken into account were confined to those which were
known at the time of service, there would be a danger of interpreting the requirement of
service in sufficient time in such a restrictive and formalistic manner that it would in
fact coincide with the requirement of due service, thus negating one of the safeguards
laid down by the Convention for the protection of the defendant."
The Court concluded:
"Accordingly in order to ascertain whether the requirement of service in sufficient
time was fulfilled—that requirement being laid down precisely in order to ensure that
the defendants rights are effectively protected —regard must be had to facts which
although occurring after service was effected, may nonetheless have had the effect that
service did not in fact enable the defendant to arrange for his defence." 74
These considerations apply equally to the Regulation, underlined by the addition of
the need for service to be in an appropriate way.
The relevance of the defendant’s conduct or acts
28.68 The defendant cannot rely on lack of adequate service if he has appeared, or
at least where he was informed of the details of the proceedings and given a chance to
make a defence, 75 but the participation of an unauthorised representative does not mean
that the defendant has appeared. 76 However, in Debaecker the court rejected an
argument that if the reason for non-receipt of service was due to the defendants’ act this
removed any obligation on the plaintiff to do any more to ensure service, even if he
subsequently discovered an address at which service could b e effected. The court held
that as the purpose of the requirement was to enable a defendant "to defend himself
effectively":
" . . . the defendant’s behaviour cannot automatically rule out the possibility of
taking into account exceptional circumstances which warrant the conclusion that service
was not effected in sufficient time. Instead, such behaviour may be assessed by the court
in which enforcement is sought, as one of the matters in the light of which it determines
whether service was effected in sufficient time. It will therefore be for that court to
assess, in a case such as the present, to what extent the defendant’s behaviour is capable
of outweighing the fact that the plaintiff was apprised after serv ice of the defendant’s
new address."77
28.69 In 1992 in Minalmet GmbH v. Brandeis Ltd 78 the European Court held
unenforceable an English default judgment where proceedings were "served" on the
defendant through a note in a letter box indic ating that the formal documents were at the
police station and the matter did not come to the notice of the defendant in time for
preparation of the defence. It was no ground for enforcement that the defendant knew of
the judgment in time to set it aside i n England. That was not a remedy equivalent to
defence before judgment. 79
28.70 That is in effect reversed by the qualification in the Regulation by which
recognition will not be denied if the defendant has failed to challenge the judgment
where it was possible. So the critical factor is not defence before judgment but whether,
in all the circumstances the defendant is subject to a decision without knowledge or
chance of challenge.
THE DOCUMENT INSTITUTING THE PROCEEDINGS
28.71 A question may arise as to the "document which instituted the proceedings"
where the recognition process does not distinguish clearly between the notice that
recognition is sought and authority for such recognition. 80 In Klomps v. Michel81 the
Court had to consider the German legal process. By that process the recognition (or
enforcement) process consisted of two stages at each of which the defendant could
lodge an objection. First an order for payment was served. If no objection was received
the court issued an enforcement order to which the defendant could also object. Either
objection changed the proceedings hitherto summary into adversary proceedings but the
enforcement order once issued would remain provisionally in force despite any
objection to it. The Court examined the purpose of the orders for payment and
enforcement in the light of the Convention requirements saying:
"[It] is intended to ensure that a judgment is not recognised or enforced under the
Convention if the defendant has not had an opport unity of defending himself before the
court first seised. It follows that a measure, such as the order for payment in German
law, service of which on the defendant enables the plaintiff, where no objection to the
order is made, to obtain a decision which i s enforceable under the Convention, must be
duly served on the defendant in sufficient time to enable him to arrange for his defence
and accordingly that such a measure must be understood as being covered by the words
of the document which instituted the proceedings . . . On the other hand a decision, such
as the enforcement order in German law, which is issued following service of an order
for payment and which is in itself enforceable under the Convention, is not covered by
those words even although the lodging of an objection against the enforcement order,
like the objection to the order for payment, transforms the procedure into adversary
proceedings."
28.72 The relevant time for ensuring that there was an opportunity for preparation
of a defence was therefore that between service of the order for payment and liability to
a judgment in default enforceable under the Convention. 82 (iii) Irreconcilability of
judgments
28.73 The central principles of the European regimes are the allocation of
jurisdiction and the ready enforcement of the judgment resulting from the proceedings.
These principles are qualified by the option to bring proceedings in diff erent
jurisdictions. In turn the risk of concurrent actions is balanced by the rules requiring or
permitting jurisdiction to be declined if an action is already in being elsewhere. 83 There
remains however the possibility of two judgments in actions involvi ng identical or
similar issues either first, as between Member States because a court acts contrary to
rules of the regime or the rules are construed differently by national courts, or secondly,
because of a judgment in a non-Member State.
28.74 In the Conventions the question of irreconcilability with the judgment of
another Member State is not addressed specifically. 84 In the Regulation however the
irreconcilability preventing recognition is with a judgment "in another Member State or
a third State" (Art. 34(4)).
"Irreconcilable"
28.75 The provisions are mandatory and apply equally to substantive decisions
and interim measures. 85 To be irreconcilable in the context of refusal to recognise, the
two judgments must have "mutually exclusive legal con sequences".86 The phrase "risk
of irreconcilable judgments" in the definition of "related actions" for jurisdiction
purposes does not import the same stringency. The objects of the two provisions differ,
that of judgments being to derogate from the obligat ion to recognise judgments and that
of a jurisdiction to focus on one court and thereby improve "onsideration of the exercise
of judicial functions in the Community" —the phrase in that context meaning simply the
risk of conflicting judgments. 87
(A) IRRECONCILABLE WITH JUDGMENT OF A COURT OF THE
ENFORCEMENT STATE
28.76 Such a ground simply recognises a realistic ground of national public
policy.88 It is noticeable that while non-recognition requires identity of the parties it
does not require identity of cause of action. Unlike the provisions relating to third States
(see infra) there is no requirement that the judgment of the court of the enforcement State
be earlier to that which it is sought to enforce.
(B) IRRECONCILABLE WITH JUDGMENT OF A C OURT OF ANOTHER
STATE
28.77 This differs from the provision referring to judgments of the enforcement
state in that it requires:
(a) identity of cause of action
(b) the irreconcilable judgment be an earlier judgment
(c) the earlier judgment fulfils the requirements of recognition.
Subject to these requirements a judgment of a Member State or a third State
entitled to recognition in the enforcement state is equated with a judgment of that state as
a ground of non-recognition of a judgment of a court in a Member State. There would be
little to support a structure which simply asserts a right of recognition of judgments
rendered by courts within it despite earlier judgments relating to the same cause of
action by courts outside it particularly when a Member State may be faced with a clash
of obligation.89 5. The Recognition and Enforcement Process Provisional measures
28.78 Under the Regulation (Article 47) "when a judgment must be recognised" an
applicant may use any provisional "including protective" measures in accordance with
the law of the State requested. No declaration of enforceability is required but such a
declaration carries with it the power to proceed to any protective measures. 90 The
provision matches that in respect of jurisdiction (Article 31) and fills a gap left in the
Conventions. Protective measures prior to a declaration of enforceability under the
Conventions depends entirely on national laws. These must be consistent with the
Convention.91 1. Recognition
28.79 Recognition may be the principal issue in the proceedings or incidental to a
dispute being adjudicated. Where it is the primary issue, the process is as for
enforcement92 (see below). As an incidental issue
28.80 Where recognition is incidental to a dispute being adjudicated,
understandably the court hearing the dispute has jurisdiction to decide the issue. Stay of
recognition proceedings pending appeal in state of origin
28.81 It is provided that:
"A court of a Member State in which recognition is sought of a judgment given in
another Member State may stay the proceedings if an ordinary appeal against the
judgment has been lodged.
A court of a Member State in which recognition is sought of a judgment given in
Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in
the State of origin by reason of an appeal." 93 Scope of the provision
28.82 Because of the equation of any application for a recognition decision with
enforcement it seems that this provision applies only to proceedings in which an
incidental question of recognition is raised. 94
28.83 Subject to provisions applicable to the United Kingdom and Ireland the
power to stay is dependent on the lodging of an "ordinary appeal". In neither case does
the power to stay necessarily preclude an examination as to whether the judgment as it
stands meets the requirements for recognition or enforce ment.95 2. Enforcement
28.84 Where enforcement or recognition is the principal issue the regimes are
concerned with authorisation. Execution is left to national law. In the words of the
European Court:
"The Convention merely regulates the procedure for obtaining an order for the
enforcement of foreign enforceable instruments and does not deal with execution itself,
which continues to be governed by the domestic law of the court in which execution is
sought, so that interested third parties may contest execution by means of the procedures
available to them under the law of the State in which execution is levied." 96
28.85 To fulfil the Convention aim of few requirements for enforcement there is a
"very simple enforcement procedure whilst giving the party against whom enforcement
is sought an opportunity to lodge an appeal". 97 The process consists of an application
without notice to the other party for a declaration of enforceability with provision for
appeal against authorisation or refusal of enforcement. Under the Regulation the process
is further simplified by the provision that the declaration is to be made simply on
production of a copy of the judgment and supporting certificate. At the appeal stage the
process becomes adversarial and a further but limited right of appeal is granted from
any decision at the first level appeal stage. 98
28.86 Except in the United Kingdom enforcement will follow the issue of an order
of enforcement on the applic ation of the interested party. In the United Kingdom
enforcement follows from registration for enforcement in that part of the United
Kingdom (i.e. England and Wales, Scotland or Northern Ireland) in which enforcement
is sought.
28.87 Subject to specific C onvention procedural requirements such as
documentary evidence of the judgment sought to be enforced and its service, procedural
details are necessarily left to national laws. 99 Such details must be in accordance with
the regime and its principles. In the United Kingdom the details of national law
applicable are contained in the Civil Jurisdiction and Judgments Acts 1982 and 1991,
the Civil Jurisdiction and Judgments Order 2001 and in CPR 74 concerned with
recognition or enforcement of judgments generally. 100 The application
28.88 It is provided that:
"A judgment given in a Member State and enforceable in that State shall be
enforced in another Member State when, on the application of any interested party, it has
been declared enforceable there. 101
However, in the United Kingdom, such a judgment shall be enforced in England
and Wales, or Scotland, or in Northern Ireland when, on the application of any
interested party, it has been registered for enforcement in that part of the United
Kingdom."102
The courts in each contracting State to which the application must be made are
specified. Where local jurisdiction is relevant within a state because of the judicial
structure, the jurisdiction is dependent on the place of domicile of the defendant within
the state or, if the defendant is not domiciled in the state in which enforcement is sought,
the place of enforcement. 103
28.89 Documentary evidence should accompany the application (or where
permitted by the national law subsequently) showing (i ) the authenticity of the judgment,
(ii) its enforceability and service in the state of origin, and (iii) where applicable that
the applicant is in receipt of legal aid. The applicant must give an address for service
within the jurisdiction or if state law does not require such an address appoint a
representative ad litem.104 Further, if the law of the enforcing court governs but
provides no time for service "the formality must be observed no later than the date on
which the decision authorising enforcement is served". 105 Subject to these requirements
the application procedure is for the law of the enforcement court. 106
28.90 Similarly although any sanction for not providing such an address is
governed by the law of the state in which enforcement is sought the aims of the regime
must be respected. Therefore "the sanction provided for may neither cast doubt on the
validity of the enforcement order nor in any way prejudice the rights of the party against
whom enforcement is sought". 107 Documentary support required
28.91 Subject to a dispensing power an application must be supported by:
a copy of the judgment which satisfies the conditions necessary to establish its
authenticity;
the certificate in the form set out in Annex V to the Regulation issued by a national
competent authority giving details of the court delivering the judgment, the parties, legal
aid enforceability in the States of origin and date of service of document ins tituting the
proceedings if the judgment was given in default of appearance." 108
28.92 A court may specify the time for the production of the documents or their
equivalents and, if required, a certified translation. If it considers it has sufficient
information before it a court may dispense with the document. No legalisation or similar
formality is to be required of the documents to be produced or any document appointing
a representative ad litem.109 Security for costs
28.93 An applicant cannot be required to lodge any security bond or deposit on the
ground that he is a foreign national or is not domiciled or habitually resident in the
jurisdiction of the enforcement court". 110 Any national law provision for security for
costs must accord with the fundamental Community prohibition on discrimination
because of nationality. There may be a covert discrimination on this ground if such
security is made available more easily in respect of enforcement of judgments of other
Community States than the state in which enforcement is sought. 111
The decision on the enforcement application
28.94 Under the Convention it is provided that the decision must be made and
notified to the applicant without delay. The party against whom enforcemen t is sought is
not entitled to make any submissions. The application may be refused on any of the
grounds of refusal. 112
28.95 Under the Regulation the provisions have a greater clarity and precision in
reflecting the underlying philosophy of speedy and e fficient enforcement. The distinction
is clearly drawn between the initial stage of the enforcement order (in which the
defendant may play no part) 113 and the adversarial appellate stage. So a judgment must
be declared enforceable in the enforcement state "immediatel"’ on production of
evidence of its authenticity and a certificate of its enforceability in the adjudicating
state. No consideration may be given at this stage to grounds of possible refusal —these
are relevant only on appeal. 114 The decision must be brought to the notice or served on
both parties.115
28.96 The declaration of enforceability carries with it the power to proceed with
protective measures. 116 It seems that no further order is needed. 117 The procedure
depends on national laws insofar as these are consistent with the Convention. 6.
Appeals against Recognition or Enforcement Decision 1. Measures of Enforcement
during Period for Appeal Measures of enforcement during period for appeal
28.97 No measure of enforcement save protective measures may be taken during
the time an appeal against a declaration of enforceability may be brought until the
appeal is determined. 118 A national law procedure may not impose a time limit for the
exercise of provisional measures inconsistent with the period permitted by the
Convention, i.e. during the time for appealing and until any appeal made is
determined.119 2. Stay of Recognition or Enforcement Appeal Proceedings Pending
Appeal in State of Origin
28.98 The court with which an appeal is lodged may on application by the person
against whom the enforcement is sought stay the proceedings if an "ordinary appeal" is
lodged or if the time for such an appeal has not expired. In the latter case the court may
specify the time within which such an appeal is to be lodged. 120 Is the provision for
stay “free standing”?
28.99 There remains some uncertainty as to whether the provision for stay is "free
standing" or is linked exclusively to the grounds for refusal of recognition or
enforcement. It would seem odd if the enforcement court could only grant a stay on the
basis of an appeal against the judgment at issue if the ground of the appeal was one of
the grounds of non-enforcement. Surely the more sensible view is that power is
conferred to suspend enforcement pending the maintaining of the judgment. Despite the
focus of the regimes on simple enforcement without delay 121 the "free standing" view
seems much the preferable.
28.100 The provisions for stay or security were analysed in detail in 1989 by
Judge Diamond Q.C. in Petereit v. Babcock International Holdings Ltd. 122 The
conclusion reached was that there is an unfettered discretion to stay, that prima facie a
judgment is enforceable if there is no Convention ground of refusal and that the purpose
of the stay provisions 123 is to ensure that a defendant’s appeal against the judgment
which succeeds is not deprived of effect because of unconditional enforcement. The
court should decide in any particular case if this purpose is best met by a stay (whether
with or without terms), or enforcement on security, bearing in mind that the difference of
ordering a stay and enforcement on security is the beneficiary of the funds until the
appeal against the judgment is decided.
28.101 In substance the provision authorises the reserving of judgment or giving of
security because of a reasonable doubt that the outcome of the case resulting in the
judgment—that does not conflict with the prohibition of review of substance 124 nor has
any necessary link with the grounds of refusal. If the free standing view be right it would
seem that the power is limited only by regime principles 125 and, further, that the
omission of a reference to a stay in an appeal against refusal does not mean that national
law could not provide one. 126 If the provision is linked to the grounds of non -
recognition or nonenforcement it is difficult to argue that there is any wider power o f
stay.127 The “ordinary appeal”
28.102 This concept has no domestic significance in the United Kingdom or
Ireland but has direct relevance when a court in either of those countries is the
enforcement court. In Industrial Diamond Supplies v. Riva128 (dealing with the power
to stay) the European Court held that, particularly in the circumstances of different
national law meanings, the concept had a European rather than a national meaning. An
"ordinary appeal" in Convention terms is one which is part of the p rocedural
development of a case which a party might reasonably expect. This would include an
appeal available on the decision and for a limited time after the decision. 129 An appeal
dependent on events unforeseeable at the date of the original judgment or upon actions
taken by persons extraneous to the judgment would not be an "ordinary appeal". A
review procedure which may be instituted at any time after judgment is not an ordinary
appeal. 130
28.103 Schlosser records that no satisfactory way was found to fit this concept
directly to the legal systems of the United Kingdom and Ireland:
"The Working Party therefore made prolonged efforts to work out an equivalent for
the United Kingdom and Ireland of the Continental distinction between ordinary and
extraordinary appeals, but reached no satisfactory result. This failure was due in
particular to the fact that the term ‘appeal’ is so many -sided and cannot be regarded, like
similar terms in Continental law, as a basis for ‘ordinary appeals’. The Working Party
therefore noted that the legal consequences resulting from the distinction drawn . . .
between ordinary and extraordinary appeals do not have to be applied rigidly, but
merely confer a discretion on the court. Accordingly, in the interests of practicality and
clarity, a broad definition of appeal seemed justified in connection with judgments of
Irish and United Kingdom courts. Continental courts will have to use their discretion in
such a way that an equal balance . . . in all Contracting States will be preserved. To this
effect they will have to make only cautious use of their discretionary power to stay
proceedings, if the appeal is one which is available in Ireland or the United Kingdo m
only against special defects in a judgment or which may still be lodged after a long
period. A further argument in favour of this pragmatic solution was that, in accordance
with [the Convention] a judgment is in any event no longer enforceable if it was subject
to appeal in the State of origin and the appellate court suspended execution or granted a
temporary stay of execution." Enforcement made conditional on provision of security
28.104 The appeal court has power to make enforcement conditional on the
provision of such security as it determined. 131 The purpose of the provision is to protect
the defendant’s interest once a plaintiff is able to take enforcement measures other than
protective measures. No such measures could be taken w hen an appeal was brought
until the appeal was determined but at that point enforcement measures could be taken.
The wording of the provision therefore reflects its purpose and a court may not order
security until it delivers the judgment on appeal. 132 The order of security is an
alternative to the stay of enforcement proceedings and whether the defendant’s interest
is most fairly protected by conditional enforcement or a stay must be decided in the
circumstances of each case. 133 3. Appeal against Declaration of Enforceability
28.105 It is only at the appellate stage that the enforcement process becomes
adversarial. If enforcement is authorised an appeal against the decision may be made to
a specified national court. The appeal must be lodged "in accordance with the rules
governing procedure in contradictory matters" in the enforcement state. If the defendant
is domiciled in the state of the court making the order the appeal must be lodged w ithin
one month of service of the order: otherwise it must be lodged within two months of
service of the order on the defendant "in person or at his residence" 134.
28.106 The appeal may be brought by "either party". Under the Convention there
were different provisions relating to appeals against the making and refusal of a
declaration. 135 Construing the provision for an appeal by "the party against whom
enforcement is sought" the European Court held that it is not open to third parties to
appeal against an enforcement order even if permitted to do so by national law. 136 The
reason given was that the Convention judgment’s framework was intended to "simplify
procedures in the State in which enforcement is sought". To that end, said the Court, the
Convention enforcement procedure "constitutes an autonomous and complete system
including the matter of appeals" .
28.107 The European Court pointed out that the Convention is not concerned with
execution and that a third party entitled under domestic law to intervene could protect
its interest at that stage. However, it may well be by national law that challenge to
execution may be made only if there has been challenge to the order —in which case the
domestic provisions would be overridden. The Court’ s approach is logical in
distinguishing between those parties bound by the order and those affected by it, but
whether the distinction drawn between enforcement and execution processes is more
than procedural may be doubtful. However, the more procedural i t is, the easier
Member States can adapt their procedures to meet the Convention. The reasoning and
comments apply to the Regulation.
28.108 In contrast to an appeal against the refusal of an enforcement declaration
(see infra) there is no application of the safeguard where the defendant fails to appear.
It is arguable that the Convention obligation on a court to ensure that a defendant has
adequate notice so as to prepare his case is not applicable to the plaintiff when an
appeal is lodged against a judgment in his favour. Yet it may be thought, as the appellate
proceedings are the first stage adversarial proceedings, there should be some obligation
to serve the respondent. 4. Appeal against Refusal of Enforcement
28.109 An appeal will lie to the national court specified in relation to appeals
against a declaration of enforceability. 137 The defendant's opportunity to put his case
28.110 If there is no appearance by the person against whom enforceability is
sought the procedural safeguards for a defendant as to jurisdiction generally apply. 138
Proceedings must be stayed unless it is established that the defendant either had
adequate notice so as to prepare a defence or that the necessary steps had been taken to
provide such notice. 139 The requirement mirrors the ground on which recognition or
enforcement of a judgment may be refused (as to which see above). In enforcement and
recognition proceedings the requirement applies whether or not the defendant is
domiciled in a contracting State —an understandable difference from the basic
jurisdictional rule as the domicile of the defendant is irrelevant to recognition and
enforcement of judgments.
28.111 In Firma P v. Firma K140 the Court stressed the distinction between the ex
parte initial enforcement process and the adversarial appellate proceedings in the
context of the need to give adequate notice to a defendant of an appeal against refusal of
enforcement. In that case an application for enforcement before a German court of a
judgment of a Dutch court against a Saudi defendant was dismissed for lack of the
required documentary evidence. On appeal the plaintiff produced supplementary
documents and the enforcement court asked of the European Court:
"Is the appellate court required to hear the party against whom enforcement is
sought... if (a) the application for an enforcement order was dismissed simply because
documents were not produced at the ap propriate time and (b) the enforcement order is
applied for in a State which is not the State of residence of the party against whom
enforcement is sought, so that the latter person will normally be able to establish against
which asset (in the present case: a claim against a bank) enforcement is to take place in
that State and thus be in a position to dispose of that asset before execution is levied?"
28.112 The Court held that there was no exception to the rule that, given a
defendant has no right to be heard at the initial application for enforcement, "on appeal
he must be given a hearing". The reason for the dismissal of the application and the
domicile of the defendant were irrelevant to this requirement.
28.113 Where the Convention is silent national law remains in control —
particularly where the silence as to one topic is to be contrasted with provisions on the
same topic in another context, as for example the lack of detailed provisions as to the
process on further appeal (see below). However, the operation of national law will be
controlled by fundamental Convention principles. It would seem that the adversarial
nature of appellate proceedings is one such principle and national law procedures
should comply with it. The decision on appeal
28.114 The decision must be given without delay. A refusal or revocation of a
declaration of enforceability may only be on the grounds of refusal specified in the
regime (see above). Under no circumstances may the foreign judgment be revie wed as
to its substance. 141 5. Further Appeal
28.115 One further appeal lies from the decision on appeal from the initial order or
refusal, but only in specified limited circumstances. 142 It follows from the exclusion of
third parties from the first stage appeal that any further appeal is similarly limited. 143
The circumstances of such an appeal vary according to the nature of the national legal
system of each Member State. In the United Kingdom it is a single further appeal on a
point of law. In most of the original contracting States it is an appeal in cassation. 144
Such an appeal lies only in respect of the decision by the first stage appellate court in
respect of enforcement of the judgment. There is no appeal from any ancillary order
made by that court (such as stay or refusal of stay of proceedings or provision of
security).145 There can be no reliance on national law procedure inconsistent w ith the
limitations of the Convention —the enforcement procedure is "an autonomous and
complete system independent of the legal systems of the contracting States". 146
28.116 There are no Convention procedural provi sions applicable to the second
stage appeal in particular relating to notice of the proceedings, the stay of proceedings
or security for enforcement. The Convention power to stay proceedings pending an
appeal from the adjudicating court is specifically con fined to the first level.
28.117 Following Convention principles proceedings at the second stage, the
appeal should remain adversarial, ensuring each party has the opportunity to put his
case. Within such a Convention principle national laws remain free to control
procedures, for the non-inclusion of specific provisions in the Convention does not
mean that national laws cannot include them. The provisions relevant to the decision on
appeal at the first stage (see above) apply.147
1. And from 1 October 2005 Regulation 815/2004 providing for additional
enforcement of judgments on uncontested claims through European Enforcement Orders.
1a. Applying to the ten States acceding in 2004 as from 1 May 2004. See Chapter
4.
2. I.e. in terms of formal "enforceability" not the circumstances in which it may be
executed in the state of origin (Coursier v. Fortis Bank C267/97, 29 April 1999 (ECJ)
(declaring that the critical factor was the order for enforcement in the terms of the
judgment)).
3. De Wolf v. Cox BV 42/76 [1976] ECR 1759; [1977] 2 CMLR 43.
4. Van Dalfsen v. Van Loon 183/90 [1992] I.L.Pr. 5.
5. So in English law now not available CPR 25.18(1) and Chapter 14. As to
security in enforcement and recognition proceedings see below.
6. See Chapter 14.
7. Firma Mund and Fester v. Firma Hatrex 3 98/92 [1994] I.L.Pr. 264.
8. See Regulation Arts 34, 35, Convention Arts 27, 28 (non -recognition) applied to
non-enforcement by Regulation Art. 45 (on appeal), Convention Art. 34. As to the need
for enforceability in the state of origin see Regulation Art. 38, Convention Art. 31.
9. Compare (Regulation) Arts 33.1 and 38.1, (Convention) Arts 26(1) and 3 1(1).
10. See e.g. Sarl Ivressi v. Société Tesserlane [1999] I.L.Pr. 332 (Cour d’Appel
Paris).
11. Civil Jurisdiction and Judgments Act 1982, s.4(1), RSC Ord. 71, rr. 27, 28.
12. Landhurst Leasing Plc v. Marcq [1998] I.L.Pr. 822 (per Schiemann L.J.)—but
nevertheless registration requires enforceability in the state of origin (CPR 74.4(5)).
Every order for registration must state a period for appeal and that enforcement
measures will not be taken in that period (CPR 74.6(3)). See also G. N. Preziosi di
Gori v. Swiss Gold Imports Plc [1997] I.L.Pr. 509 (Swedish Supreme Court).
13. See Art. 42.
14. The Civil Jurisdiction and Judgments Act 1982 (as amended) is applied to
these matters by SI 1993/604; Civil Jurisdiction and Judgments Order 2001 (SI
200 1/3929) as applied to these matters by SI 200 1/3928.
15. For an example of the enforcement of such an instrument (a land charge under
German law) see Deutsche Genossenschaftsbank v. Brasserie du Pecheur 148/84
[1986] 2 CMLR 496 (ECJ).
16. So a document drawn up between private parties will not qualify ( Unibank A/S
v. Christensen [2000] All E.R. (EC) 374 (ECJ)).
17. Solo Kleinmotoren GmbH v. Boch 414/92 [1994] I.L.Pr. 457. The equation of
authentic instruments and settlements to judgments by SI 1993/604 for enforceability
purposes in the United Kingdom must be read subject to this decision.
18. A judgment by consent or default is a judgment within the enforcement
provisions (Landhurst Leasing Plc v. Maroq [1998] I.L.Pr. 822 (C.A.)).
19. LTU GmbH and Co. KG v. Eurocontrol 29/[1976] ECR 1541; [1977] 1 CMLR
88. Gourdain v. Nadler 133/78 [1979] ECR 733; [1979] 3 CMLR 180. The civil parts
of a judgment of a criminal court constitu te a "civil matter": Sonntag v. Waidmann
172/91 21 April 1993 (ECJ).
20. Coursier v. Fortis Bank C267/97 29 April 1999 (the effect of a state
supervised liquidation (outside the Convention) on a judgment in a contested claim)
ECJ. Whether judgments on the validity of an arbitration agreement are within the
Convention was referred to the European Court. See Toepfer International GMBH v.
Societe Cargill, but case settled (25.13). For opposing views compare The Heidberg
[1994] 2 Lloyd’s Rep. 287; with (e.g.) The Ivan Zabubanoki [2002] 1 Lloyd’s Rep. 107
the latter being approved by the C.A. in Through Transport Mutual Insurance Assoc.
(Eurasia) Ltd v. New India Assurance Assoc. Co. Ltd [2005] 1 Lloyd’s Rep. 67.
21. Regulation Art. 32, Convention Art. 25. It is irrelevant whether the judgment is
determining a dispute between parties who have appeared, is by default or by consent
(see fn. 18). The question of costs cannot be reargued in an enforcement court. See Re
the Enforcement of a Foreign Costs Order (1984) Oberlandsgericht Frankfurt [1986]
ECC 481. As to the distinction between settlements and judgments see supra.
22. [1995] 1 Lloyd’s Rep. 302.
23. [1989] 2 All E.R. 1066.
24. Maersk Olie and Gas A/S v. Firma M de Haan Case C-39/02, Judgment 14
October 2004.
25. The limiting of "judgment" to a final determination permanently dispositive of
substantive rights (the holding by Ognall J. in Virgin Aviation Services Ltd v. CAD
Services [1991] I.L.Pr. 448) is consistent with the argument that "procedural" orders are
not judgments (see infra)—but distinguish protective or provisional measures (under
Art. 24) (arrest or freezing injunction) affecting substantive rights.
26. Denilauler v. SNC Freres 125/79 [1980] ECR 1553; [1981] 1 CMLR 62.
Enforceability of such a judgment cannot result from an opportunity to have the judgment
set aside nor is the exclusion limited to orders intended to be enforced without service
(see EMI Records v. Modern Music [1992] 1 All E.R. 616).
27. And payment of penalty for breach of an order. See S. C. Johnson v. Mobilar
Export Import GmbH [1984] ECC 360, District Court Rotterdam —enforcement
requires the amount of the penalty to be finally determined by the court in which the
judgment was delivered: Medicale Equipex SA v. Farmitalia Erba Cour d’Appel
Versailles [1990] I.L.Pr. 192.
28. The 1970 Convention superseded by Council Regulation 1348/ 2000 as of 31
May 2000 below and the 1954 and 1965 Conventions as from 1 July 2001 by
Regulation 1206/2001.
29. See generally, paras. 184–187. As to protective measures see fn. 14. Such a
judgment may lead to declining substantive jurisdiction under Arts 21, 22. The Winter
[2000] 2 Lloyd’s Rep. 298.
30. See e.g. Hoffman v. Kreig 145/86 [1990] I.L.Pr. 4 (ECJ)—as distinct from its
manner of execution and whether in the light of that of the enforcement court the
judgment is within the regime (as to which see fn. 3). But the effect is for the
enforcement court. See eg Normaco Ltd v. Lundman [1999] I.L.Pr. 381.
31. [1992] 2 All E.R. 193.
32. But a Member State obliged by its law to recognise the judgment of a non -
Member State is not also obliged to recognise an inconsistent later judgment of a
Member State (Art. 34(4) see below).
33. The "issue" in the proceedings arose because in both England and Italy the
defendants pleaded that the judgment (of a court in St Vincent) had been obtained by
fraud.
34. Regulation Arts 68–70, Conventions Arts 55, 56.
35. As to this obligation and the qualification as to provisional measures, see
below.
36. Conventions Art. 57, Regulation Art. 72.
37. Article 57. The form of Art. 57 of the Lugano Convention differs slightly but
the content is identical save for the provision of a ground for non -recognition or
enforcement of a judgment when the enforcement or recognising state is not a party to
such a Convention (see below).
38. There is no room thereby for the approach to Art. 57 in The Maciej Rataj
[1995] 1 Lloyd’s Rep. 302 that there is only a move out of the Brussels Convention
insofar as there are provisions relating to the particular issue in the other Convention —
so lack of provisions dealing with concurrent actions meant in that respect the Brussels
Convention applied. In the case of the CMR there is a provision for recognition and
enforcement.
39. The International Convention on Liability and Compensation for Damage in
Connection with the Carriage of Hazardous and Noxious Substances by Sea as set out in
Merchant Shipping Act 1995, Sch. 5A (inserted by Merchant Shipping and Maritime
Security Act 1997, s.14(2), Sch. 3). It is not yet in force —for discussion see Chapters 1,
6.
40. A judgment is not binding against the Fund unless it has had the opportunity to
intervene as a party (Art. 39(6), (7)). No doubt any fraud would also destroy
enforceability of the judgment.
42. Transmitted by the Commission to the European Parliament on 24 June 2003.
43. Regulation Arts 22.5, 33, Convention Arts 16(5), 26.
44. I.e. the judgment being declared enforceable and remaining so. See fn. 2.
45. Regulation Arts 35.1, 59, Conventions Ar ts 28, 72.
46. See e.g. Societe Brasserie du Pecheur v. Kressparkasse Main-Spessari
[1997] I.L.Pr. 173 (French Cour de Cassation); Re an English Judgment [1993] I.L.Pr.
653. So the enforcement court cannot consider whether the adjudicating court should
have declined jurisdiction of its own motion under Article 20 (see Société Launay v.
Deyglat (Cour d’Appel Orleans) (1979) ECD 1 –28–B2). See also Genel Maklyati SA
v. Compagnie Gen ´erale ´Maritime SA (1982) 1983 ECD 144. The prerequisite that
under the Brussels Convention jurisdiction under Article 5(1) requires specific assent
by a Luxembourg domiciliary (Article I of the Annexed Protocol) held not to provide a
ground of refusal: Weinor v. Sarl Wirion Mod’enfants (1975) Cour Superieure de
Justice Lux. ECD 1–28–B 1. As to possible refusal of enforcement because of the scope
of the judgment or its effect in the state of the enforcement court see supra.
47. It is arguable that an order for a provisional measure in proceedings where the
defendant was domiciled in a third state may be based on Art. 24 rather than Art. 4 and
hence not within the ambit of Art. 59 (following from Van Uden Maritime BV v.
Kommandetgesellschaft in Firma Deco -Line [1999] I.L.Pr. 73, para. 42.
48. The United Kingdom has provided that an obligation within Art. 59 is assumed
in relation to specified courts of Canada (SI 1987/468 as amended —for amendments
see SI 1992/1731) and to specified courts of Australia on the coming into force of a
Convention for the reciprocal recognition and enforcement of judgments 1990 (SI
1994/1901)—commencement 1 September 1994.
49. See Art. 72.
50. Compared to the Conventions (Art. 28) the provision is:
1 identical save for the addition of "manifestly" to qualify "contra ry to the public
policy",
2 identical save for the additional qualification "unless the defendant failed to
commence proceedings to challenge the judgment when it was possible for him to do
so",
3 identical in substance,
4 identical save for the addition of judgments given in another member State.
In addition a further ground (of limited relevance to maritime claims) is deleted as
the relevant rules of member States are being equated —the ground simply ensures that
the obligation to recognise judgments on matters within the Convention does not mean
overriding specified choice of law rules of the enforcement state which in that state’s
view affect the recognition of judgments in that state.
"if the court of the State in which the judgment was given, in order to arrive at its
judgment, has decided a preliminary question concerning the status or legal capacity of
natural persons, rights in property arising out of matrimonial relationship, wills or
succession in a way that conflicts with a rule of the private international law of the State
in which the recognition is sought, unless the same result would have been reached by
the application of the rules of private international law of that State." As t o the different
processes see 28.95.
51. Regulation Art. 34.1—save for adding "manifestly" the Conventions wording is
substantively identical (Art. 27(1)).
52. Emphasised in the Regulation by the phrase of "manifestly contrary to the
public policy". As to the Convention provision see e.g. S A Regie Nationale des Usines
Renault v. Maxicar Spa C 38/98, Judgment 11 May 2000; Krombach v. Bamberski C
7/98, Judgment 28 March 2000 (denial of lawyer in criminal proceedings leading to
civil compensation—accepted as may be contrary to public policy).
53. Re Foreign Exchange Rates [1994] I.L.Pr. 703. See also Interdesco SA v.
Nullifire Ltd (Phillips J.) [1992] 1 Lloyd's Rep. 180 (see infra—fraud).
54. Maitre de Grandre v. Ifafood SA (Cour d'Appel Paris) [1993] I.L.Pr. 657. In
considering whether the regularity of the proceedings satisfied this criterion the court
thought the procedure of the issuing court to be irrelevant. See also Polypetrol v.
Societe Generate Routiere (French Cour de Cassation) [1993] I.L.Pr. 107—contrary to
such policy if no reasoning.
55. Interdesco SA v. Nullifire Ltd [1992] 1 Lloyd's Rep. 180; approved by Court
of Appeal in Societe d'Informatique Service v. Ampersand Software BV 432/93 [1995]
All E.R. (E.C.) 783. As to similar views in other countries see e.g. Soc. Sectom v. Soc.
Fremo (Cass. Civ. Italy) (1981) 1982 ECD 230. See also on the general question of the
ability to raise a defence which would have been raised before the adjudicating court,
Re Enforcement of a French Sequestration Order (1977) (Bundesgerichthof) [1979]
ECC 321.
56. Hoffmann v. Kreig 145/86 [1990] I.L.Pr. 4.
57. Ibid.—but there may be connected grounds such as the procedural irregularity.
Denial of a fair trial contrary to Art. 6 of the Human Rights Convention with
circumstances akin to a failure to serve the defendant in time to prepare a defence is
contrary to English public policy (Maronier v. Larmer [2003] 1 All E.R. (Comm.) 225.
58. Interdesco SA v. Nullifire Ltd. (fn. 55) As to the general principle as defining
"public policy" see supra 28.47.
59. See Preamble to Regulation (16)—"mutual trust in the administration of justice
in the Community justifies judgments given in a member Stat e being recognised
automatically without the need for any procedure except in cases of dispute" and the
basic distinction drawn by Lord Goff between the regime and other cases in Airbus
Industries GIF v. Patel [1998] 1 Lloyd’s Rep. 631 (H.L.). There is no Convention right
not to be sued in one or more jurisdictions but a framework to be applied by the various
courts (First National Bank Assoc. v. Compagnie Nationale Air Gabon [1999] I.L.Pr.
617). In Re the Enforcement of an English Anti Suit Injunction [1997] I.L.Pr. 320 the
Oberlandsgericht Dusseldorf refused order of service of the injunction on the ground
(set out in the Hague Convention, Art. 13(1)) that it infringed German sovereignty.
60. Case C-159/02 [2004] 2 Lloyd’s Rep. 169. For discussion see Chapters 4, 25.
61. See Phillip Alexander Securities Ltd v. Bamberger [1997] I.L.Pr. 73.
61a. Regulation Art. 34.2. The provision does not require consideration by the
enforcement court of its own motion. S ee Wagner v. Tettweiler Cour de Cassation
France [1985] ECC 258. In the case of a person prosecuted for an offence in a
contracting State other than his domicile he may be ordered by the court to appear. If he
does not do so any judgment in "the civil action" need not be recognised or enforced
unless the person concerned has the opportunity of arranging for his defence Regulation
Art. 61, Conventions Annexed Protocol Art. II.
62. As to the jurisdictional significance see Chapter 4.
63. Article 26. The Convention rule is identical save that there is no reference to
EC Regulation 1348/2000. As to that Regulation and the states acceding in 2004, see
Chapters 6, 9.
64. 228/8 1 [1983] 1 CMLR 665.
65. Paragraph 13, Art. 29 prohibits the review of the substance of a judgment in
recognition proceedings or (as applied by Art. 34) in enforcement proceedings.
66. Klomps v. Michel 166/80 [1981] ECR 1593; [1982] 2 CMLR 773, para. 15.
See also Isabelle Lancray SA v. Peters und Sickert C 305/88 [1991] I.L.Pr. 99 (ECJ)
(any defect in service being curable by that law); Noirhomme v. Walklate [1992] 1
Lloyd’s Rep. 427.
68. [1992] 1 Lloyd’s Rep. 427.
69. As to which see Chapters 6, 9. See also the enquiry by German court s into
service of Belgian proceedings in Re a Belgian Default Judgment [1992] I.L.Pr. 528.
70. 49/84 [1986] 2 CMLR 400.
71. Paragraph 12.
72. The Kunststoffrecycling GmbH v. Jurgens [2002] 1 W.L.R. 2459 (C.A.).
72a. 166/80 [1981] ECR 1593; [1982] 2 CMLR 773. Paragraph 19.
73. Ibid., para. 20.
74. It was held by the Oberlandsgericht Hamm in an order of 10 September 1979
that notice of proceedings from a source other than the document instituting the
proceedings was not sufficient to satisfy Art. 27(2) (ECD 1 –27.2–B 11). Delivery of a
hearing date was held to be insufficient notice in Trans Atlantica SpA v. Vertom
Shipping 1984 ELD 393 (Italy).
75. See Volker Sonntag v. Hans Waidmann C 172/91 [1993] ECR 1–1963 (ECJ)
—there was appearance where a defendant appeared through French counsel (Cour de
Cassation) to a criminal charge but did not respond to civil proceedings grafted on to
the criminal charge—although they were dealt with orally in the presence of counsel.
The principle is taken further in the Regulation so that a defendant who could have
challenged the judgment has no defence against enforcement ( see below).
76. Hendrikman v. Magenta Druck and Verlag GmbH Case 78/95 [1996] All E.R.
944 (EC) 944 (ECJ).
77. Paragraph 32. See also Re an English Judgment [1993] I.L.Pr. 653
Oberlandsgericht Hamm—sending by post and not returned no evidence of receipt. In a
judgment delivered before Debaecker the Tribunal de Grande Instance Paris held that a
judgment would not be unenforceable under Art. 27(2) where a defendant heard of the
proceedings only after the hearing date but took no action prior to delivery of the
judgment three months later (Rosco BV v. Fraisgel [1986] ECC 175). This does not
seem inconsistent with the principle of Debaecker but the detailed facts require
consideration. Also see Re a Belgian Default Judgment (German Federal Supreme
Court) [1992] I.L.Pr. 528—deemed service on only known address when it is believed
to be the address through the defendant’s conduct.
78. [1993] I.L.Pr. 132.
79. See also Hendrikman v. Magenta Druck and Verlag GmbH Case C–78/95
[1996] All E.R. (EC) 544.
80. It is only the document instituting the proceedings that is relevant in calculating
the time available to prepare a defence. See Société Biomécanique Integue Fabrique
National de Heutal SA [1993] I.L.Pr. 227. The document must contain particulars of the
claim: Polypetrol v. Societe Générale Routiére [1993] I.L.Pr. 107 (French Cour de
Cassation).
81. Fn. 66.
82. See also Firma Hengst Import BV v. Campese Case C474/93 [1995] I.L.Pr.
587 (ECJ).
83. And by the principle that a second action on a claim should not be allowed
once a judgment is obtained (see above).
84. However, as to obtain enforcement a decision of the enforcement State would
be needed and irreconcilability would be a ground for refusal —so it seems that the
"first in time" principle applies to the enforcement proceedings (but not the substantive
decisions).
85. Italian Leather SpA v. WECO Polstermobel GmbH Case C–80/00 (6 June
2002) [2002] 1.L.Pr. 41.
86. See Hoffman v. Kreig [1987] ECR 645.
87. The Maciej Rataj C 406/92 [1995] 1 Lloyd’s Rep. 302. As to "related actions"
see Chapter 12.
88. Although it was specifically referred to as such it was thought it would lead to
too wide an application to make it part of public policy. See Jenard, p. 45. Proceedings
in the enforcement state do not constitute a ground for refusal of recognition ( Landhurst
Leasing v. Marcq [1998] I.L.Pr. 822 (C.A.)).
89. See Schlosser, para. 205.
90. As to the period pending appeal see 28.97.
91. Capelloni v. Pelkmans 119/84 [1986] 1 CMLR 388.
92. Regulation Article 33 Conventions Articles 26.
93. Regulation Art. 37. The equivalent Convention provisions (Art. 30) are in
substance identical. As to stay of appeal proceedings and analysis of the stay provisions
see 28.90.
94. See the example given by Jenard, p. 46. If this is so it resolves the question as
to whether the provision applies to the initial enforcement stage as well as any appellate
stage.
95. See Jenard, p. 46.
96. Deutsche Genossenschaftsbank v. Brasserie du Pecheur 148/84 [1986] 2
CMLR 496, para. 18. The "order for enforcement" is now a declaration of
enforceability. See below. The provision for the enforcement of periodic payments by
way of penalty (Regulation Art . 49, Convention Art. 43) is geared to the system of
enforcing orders in the legal systems of the original member States of the EEC. As
Schlosser says, courts in the UK will have to use the domestic system to enforce a
registered judgment (para. 212). The Convention does not refer to the date of
conversion of currency of a judgment—this should therefore be regarded as a matter of
execution for the enforcement court.
97. See Brennero SAS v. Wendel GmbH 258/83 [1986] 1 CMLR 59 approved by
the Court again in Capelloni v. Pelkmans 119/84 [1986] 1 CMLR 388.
98. This process also applies to any proceedings in which a recognition decision
is sought (see supra). For a review of the differing approaches in the contracting States
and the steps taken to "adjust" the Brussels Convention to meet the approaches of
Denmark, Ireland and the UK see Schlosser, paras 206 –224.
99. Regulation Art 40, 53–56, Convention Arts 33, 44–49.
100. See 74 Part IV. The process for European Enforcement Orders (fn. 1) is set
out in Part V.
101. Changed by the Accession Treaty on the accession of Spain and Portugal
(1989) from "the order for an enforcement has been issued there".
102. Regulation Art. 38. The equivalent Convention provision (Art. 30) is
identical in substance.
105. Carron v. Federal Republic of Germany 198/85 [1987] 1 CMLR 838 (ECJ)
para. 14.
106. Van der Linden v. Berifsgenossenschaft der Feinmechanik Case C 275/94
[1996] I.L.Pr. 200. A reasonable time must be given for satisfaction of the judgment
voluntarily (ibid.).
107. Ibid.
108. Regulation Arts 54, 55, Annex 5. Equivalent provisions are contained in the
Convention Arts 46, 47.
109. Regulation Arts 55, 56, Convention Arts 45, 49. Under the Regulation no
charge, duty or fee calculated by reference to the value of the matter may be levied (Art.
52).
110. Regulation Art. 52, Convention Art. 45. As to security for costs on appeal
against the authorisation of enforcement see Art. 38 and infra.
111. See Firma Mund v. Firma Hatrex 398/92 [1994] I.L.Pr. 264 (ECJ). Security
for costs cannot be ordered by an English court in relation to a claimant resident in an
EU State, a Brussels or Lugano State CPR 25.13 and see Chapter 14.
112. Arts 34, 35.
113. No submissions may be made (Art. 41) as there is no requirement of
notice of the hearing an application.
114. See Art. 41.
115. Art. 42.
117. Regulation Art. 47.2, Convention Art. 39.
120. Regulation Art. 46—in the UK any form of appeal is to be treated as
an ordinary appeal. The Convention provision (Art. 38) is identical.
121. See Societe d' Informatique Service Realisation Organisation v.
Ampersand Software BV 432/93 [1995] All E.R. (EC) 783.
122. [1990] 2 All E.R. 135.
123. As to stay of initial proceedings see 28.74.
124. See Medicale Equipex SA v. Farmitalia Erba Sri (Cour d'Appel
Versailles) [1990] I.L.Pr. 192.
125. See the view taken in Thierry Noirhomme v. David Walklate
[1992] 1 Lloyd's Rep. 427 relying on the 1982 Act, s.4(3), equating the jurisdiction in
respect of a registered judgment with an English judgment, the jurisdiction to stay being
based on RSC Ord. 47, r. 1(1).
126. In considering a stay an enforcement court may only take into
account arguments which an applicant could not have made before the adjudicating court
(Van Dalfsen v. Van Loon 183/90 [1992] I.L.Pr. 5)—a limitation which would have to
be adopted by national laws.
127. A number of questions relating to the power were referred to the ECJ by
the Scottish Court of Session in March 1996 in Re Marie Brizard—particularly the
relationship between those powers and (i) security ordered by the adjudicating court,
(ii) the permissible grounds of refusal, (iii) the determination or stay of the appeal (see
[1997] I.L.Pr. 373).
128. 43/77 [1977] ECR 2175; [1978] 1 CMLR 349. See for discussion of
the ordinary appeal in detail Schlosser, para. 195.
129. See for application to an appeal in cassation SA Continental Pharma v.
SA Labaz (Brussels) (1978) ECD 1–38–B3, the reasoning being that the appeal had to
be lodged within a particular time and could result in variation of the decision.
130. See (considering the French "recours en revision"’ ) Interdesco v.
Nullifire Ltd [1992] 1 Lloyd’s Rep. 180.
131. Regulation Art. 46.3, Convention Art. 38. For an example of a refusal to
order security because of an undertaking that if as the result of a review procedure
the judgment was amended there would be repayment see Interdesco v. Nullifire Ltd
[1992] 1 Lloyd’s Rep. 180.
132. Brennero v. Wendel 258/83 [1986] 2 CMLR 59. But the point seems to have
again been referred to the ECJ (see Re Maire Brizard fn. 113).
133. See Petereit v. Babcock International Holdings Ltd [1990] 2 All E.R. 135
and supra—stay of enforcement proceedings.
134. Regulation Art. 43, Annex 111 as amended by Commission Regs 1937,
2245/2004, Convention Arts 36, 37. No extension of time may be grant ed on account of
distance.
135. Arts 36, 37 (appeal against making declaration), 40.
136. Deutsche Genossenschaftsbank v. Brasserie du Pecheur [1986] 2 CMLR
496.
137. No time limit is fixed by the Convention for appealing but national law may
provide such a limit (cf. Jenard, p. 53).
138. Regulation Art. 43.4, Convention Art. 42, containing the additional
requirement that the party be summoned to appear.
139. For discussion of the obligation see supra.
140. 178/83 [1985] 2 CMLR 271.
141. Regulation Art. 45.
142. Regulation Annex IV as amended by Commission Regulations 1937,
2245/2004. Convention Arts 37, 41.
143. Volker Sonntag v. Hans Waidmann C-172/91 [1993] ECR 1-1963.
144. See generally Jenard, pp. 5 1 -52, Schlosser, para. 217.
145. Van Dalfsen v. Van Loon 183/90 [1992] I.L.Pr. 5; the Ampersand case (fn.
133).
146. Societe d'Informatique Service Realisation Organisation v. Ampersand
Software BV 432/93 [1995] All E.R. (EC) 783.
147. Regulation Art. 45.
Appendix 1
Statutes Administration of Justice Act 1956, Sections 45-50 (as Amended)

(4 & 5 Eliz. 2, c. 46) Part V. Admiralty Jurisdiction and Arrestment of Ships in
Scotland Jurisdiction in relation to collisions, etc.
45.—(1) Subject to the provisions of this Part of this Act, any court having
Admiralty jurisdiction shall have jurisdiction to entertain, as against any defender, an
action to which this section applies if, but only if, —
(a) the defender has his habitual residence or a place of business in the area for
which the court acts, or
(b) the cause of action arose in the area for which the court acts and either within
inland waters or within the limits of a port, or
the court or has been heard and determined by the court, or
(d) the defender has prorogated the jurisdiction of the court, or
(e) a ship in which the defender owns one or more shares has been arrested
(whether ad fundandam jurisdictionem or on the dependence of the action) within the
area for which the court acts.
(2) Where an action to which this section applies is raised in a court having
jurisdiction by virtue only of one or more of the provisions of the preceding subsection
other than paragraph (d) thereof, and it appears to the court that cognate proceedings are
depending in a competent court outside Scotland, the first mentioned court shall sist the
action if so moved by any party thereto, and shal l not recall the sist until satisfied that
the cognate proceedings have been discontinued or have otherwise come to an end:
Provided that nothing in this subsection shall prevent the first mentioned court from
entertaining any application as to diligence i n the action.
In this subsection "cognate proceedings", in relation to any action, means
proceedings instituted, before the granting of warrant for service in the action, by the
pursuer in the action against any other party to the action, being proceedings in respect
of the same incident or series of incidents as those with which the action is concerned.
(3) This section applies to actions for payment of reparation arising out of one or
more of the following incidents, that is to say —
(a) any collision between ships, or
(b) the carrying out of, or the ommission to carry out, a manoeuvre in the case of
one or more of two or more ships, or
(c) the non-compliance, on the part of one or more of two or more ships, with the
collision regulations.
(4) In this section—
"inland waters" includes any part of the sea adjacent to the coast of the United
Kingdom certified by the Secretary of State to be waters falling by international law to
be treated as within the territorial sovereignty of Her Maje sty apart from the operation
of that law in relation to territorial waters;
"port" means any port, harbour, river, estuary, haven, dock, canal or other place so
long as a person or body of persons is empowered by or under an Act or charter to
make changes in respect of ships entering it or using the facilities therein, and "limits of
a port" means the limits thereof as fixed by or under the Act in question or, as the case
may be, by the relevant charter or custom;
"charges" means any charges with the except ion of light dues, local light dues and
any other charges in respect of lighthouses, bouys or beacons and of charges in respect
of pilotage.
(5) For the avoidance of doubt it is hereby declared that any reference in this
section to an action for payment of reparation does not include a reference to an action
to make good a lien.
(6) Section six of the Sheriff Courts (Scotland) Act, 1907 (as amended by any
subsequent enactment), shall cease to have effect in relation to act ions to which this
section applies. Exclusion of jurisdiction in cases falling within Rhine Convention
46. No court shall have jurisdiction to determine any claim or question certified by
the Secretary of State to be a claim or question which, under the Rh ine Navigation
Convention, falls to be determined in accordance with the provisions thereof.
In this section "the Rhine Navigation Convention" means the Convention of the
seventh of October, eighteen hundred and sixty -eight, as revised by any subsequent
Convention. Arrest of ships on the dependence of an action or in rem*
47.—(1) Subject to the provisions of this section and section fifty of this Act, no
warrant issued after the commencement of this Part of this Act for the arrest of property
on the dependence of an action or in rem 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 wa rrant to
arrest on the dependence of an action, unless either —
(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—
(a) damage done or received by any ship;
(b) loss of life or personal injury sustained in consequence of any defect in a ship
or in her apparel or equipment, or of the wrongful ac t, neglect or default of the owners,
charterers or persons in possession or control of a ship or of the master or crew thereof
or of any other person for whose wrongful acts, neglects or defaults the owners,
charterers or persons in possession or control o f a ship are responsible, being an act,
neglect or default in the navigation or management of the ship, in the loading, unloading
or discharge of goods on, in or from the ship or in the embarkation, carriage or
disembarkation of persons on, in or from the ship;
(c) the Salvage Convention 1989;
(ca) any contract for or in relation to salvage services;
(d) any agreement relating to the use or hire of any ship whether by charterparty or
otherwise;
(e) any agreement relating to the carriage of goods in any ship whether by
charterparty or otherwise;
(f) loss of, or damage to, goods carried in any ship;
(g) general average;
(h) any bottomry bond;
(i) towage;
(j) pilotage;
(k) the supply of goods or materials to a ship for her operation or maintenance;
(l) the construction, repair or equipment of any ship;
(m) liability for dock charges or dues;
(n) liability for payment of wages... of a master or member of the crew of a ship;
(o) master’s disbursements, including disbursements made by shippers, charterers
or agents on behalf of a ship or her owner;
(p) any dispute as to the ownership or right to possession of any ship or as to the
ownership of any share in the ship;
(q) any dispute between co-owners of any ship as to the ownership, possession,
employment or earnings of that ship;
(r) the mortgage or hypothecation of any ship or any share in a ship;
(s) any forfeiture or condemnation of any ship, or of goods which are being, or
have been, carried, or have been attempted to be carried, in any ship, or for the
restoration of a ship or any such goods after seizure.
(3) In any proceedings having a conclus ion appropriate for the enforcement of any
claim such as is mentioned in paragraphs (q) to (s) of the last preceding subsection a
warrant may be issued—
(a) if the conclusion is a pecuniary conclusion, for the arrest of a ship on the
dependence of the action; or
(b) in any other case (whether or not the claimant is entitled to a lien over the
ship), for the arrest of the ship in rem;
but there shall not be issued in respect of any such conclusion as aforesaid
(whether pecuniary or otherwise) a warrant to arrest, either in rem or on the dependence
of the action, any ship other than the ship to which the conclusion relates.
(4) Subject to the preceding subsection, nothing in this section shall be taken to
authorise—
(a) the use of an arrestment on the dependence of an action otherwise than in
respect of a pecuniary conclusion, or
(b) the use of an arrestment in rem otherwise than in respect of a conclusion
appropriate for the making good of a lien.
(5) A warrant for the arrest of a s hip in rem issued by virtue of paragraph (b) of
subsection (3) of this section in a case where the person in whose favour it is issued is
not entitled to a lien over the ship shall have effect as authority for the detention of the
ship as security for the implementation of the decree of the court so far as it affects that
ship;
Provided that the court may, on the application of any person having an interest,
recall the arrestment if satisfied that sufficient bail or other security for such
implementation has been found.
(6) Nothing in this section shall authorise the arrest, whether on the dependence of
an action or in rem, of a ship while it is on passage.
(7) Nothing in this section shall authorise the arrest, whether on the dependence of
an action or in rem, of a ship in respect of any claim against the Crown, or the arrest,
detention or sale of any of Her Majesty’s ships or Her Majesty’s aircraft.
In this subsection "Her Majesty’s ships" and "Her Majesty’s aircraft" have the
meanings assigned to them by s ubsection (2) of section thirty-eight of the Crown
Proceedings Act, 1947.
(8) In—
(a) paragraph (c) of subsection (2) above, the "Salvage Convention, 1989" means
the International Convention on Salvage 1989 as it has effect under section 224 of the
Merchant Shipping Act 1995;
(b) paragraph (ca) of that subsection, the reference to salvage services includes
services rendered in saving life from a ship and the reference to any claim arising out of
any contract for or in relation to salvage services i ncludes any claim arising out of such
a contract whether or not arising during the provision of such services,
and the claims mentioned in subsections (2)(c) and (ca) shall be construed as
including claims available by virtue of sectio n 87 of the Civil Aviation Act 1982."
Interpretation of Part V
48. In this Part of this Act, unless the context otherwise requires, —
(a) references to an action, a pursuer and a defender include respectively
references to a counter-claim, the person making a counter-claim and the person against
whom a counterclaim is made;
(b) any reference to a conclusion includes a reference to a crave, and "pecuniary
conclusion" does not include a conclusion for expenses;
(c) any reference to a warrant to arrest property includes a reference to letters of
arrestment and to a precept of arrestment;
(d) any reference to a lien includes a reference to any hypothec or charge;
(e) . . .
(f) the following expressions hav e the meanings hereby assigned to them
respectively, that is to say—
"collision regulations" means safety regulations under section 85 of the Merchant
Shipping Act 1995;
"goods" includes baggage;
"master" has the same meaning as in the Merchant Shi pping Act, 1995, and
accordingly includes every person (except a pilot) having command or charge of a ship;
"ship" includes any description of vessel used in navigation not propelled by oars;
"towage" and "pilotage" in relation to an aircraft, mean towage and pilotage while
the aircraft is waterborne. Repeals
49.—(1) Section one hundred and sixty-five of the Merchant Shipping Act, 1894
(which imposes restrictions on proceedings for the recovery of wages or seamen and
apprentices) shall cease to have effect and is hereby repealed.
(2) So much of subsection (2) of section seventy -five of the Disease of Animals
Act, 1950, as enables a local authority to recover expenses incurred in burying or
destroying carcases in the same manner as salvage is recoverable, sha ll cease to have
affect; and accordingly the words in the said subsection (2) from "and the local
authority" to the end of the subsection are hereby repealed. (Repealed c. 22 1981 Sch.
6.) Application and commencement of Part V
50.—(1) This Part of this Act shall apply to Scotland only.
(2) This Part of this Act shall come into operation on such day as the Secretary of
State may appoint by order made by statutory instrument.
(3 Nothing in this Part of this Act shall affect any action in respect of which
warrant for service has been granted before the commencement of this Part of this Act.
Supreme Court Act 1981, Sections 20-24 (as Amended)
(1981 c. 54) Admiralty jurisdiction Admiralty jurisdiction of High Court
20.—(1) The Admiralty jurisdiction of the High Court shall be as follows, that is
to say—
(a) jurisdiction to hear and determine any of the questions and claims mentioned in
subsection (2);
(b) jurisdiction in relation to any of the proceedings mentioned in subsection (3);
(c) any other Admiralty jurisdiction which it had immediately before the
commencement of this Act; and
(d) any jurisdiction connected with ships or aircraft which is vested in the High
Court apart from this section and is for the time being by rules of court made or coming
into force after the commencement of this Act assigned to the Queen’s Bench Division
and directed by the rules to be exercised by the Admiralty Court.
(2) The questions and claims referred to in subsection (1)(a) are —
(a) any claim to the possession or ownership of a ship or to the ownership of any
share therein;
(b) any question arising between the co -owners of a ship as to possession,
(c) any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) any claim for damage received by a ship;
(e) any claim for damage done by a ship;
(f) any claim for loss of life or personal injury sustained in consequence of any
defect in a ship or in her apparel or equipment, or in consequence of the wrongful act,
neglect or default of—
(i) the owners, charterers or persons in possession or control of a ship; or
(ii) the master or crew of a ship, or any other person for whose wrongful acts,
neglects or defaults the owners, charterers or persons in possession or control of a ship
are responsible,
being an act, neglect or default in the navigation or management of the ship, in the
loading, carriage or discharge of goods on, in or from the ship, or in the embarkation,
carriage or disembarkation of persons on, in or from the ship;
(g) any claim for loss of or damage to goods carried in a ship;
(h) any claim arising out of any agreemen t relating to the carriage of goods in a
ship or to the use or hire of a ship;
(j) any claim—
(i) under the Salvage Convention 1989;
(ii) under any contract for or in relation to salvage services; or
(iii) in the nature of salvage not falling within (i) or (ii) above; or any
corresponding claim in connection with an aircraft;
(k) any claim in the nature of towage in respect of a ship or an aircraft;
(l) any claim in the nature of pilotage in respect of a ship or an aircraft;
(m) any claim in respect of goods or materials supplied to a ship for her operation
or maintenance;
(n) any claim in respect of the construction, repair or equipment of a ship or in
respect of dock charges or dues;
(o) any claim by a master or member of the crew of a ship for w ages (including
any sum allotted out of wages or adjudged by a superintendent to be due by way of
wages),
(p) any claim by a master, shipper, charterer or agent in respect of disbursements
made on account of a ship;
(q)any claim arising out of an act which is or is claimed to be a general average
act;
(r) any claim arising out of bottomry;
(s) any claim for the forfeiture or condemnation of a ship or of goods which are
being or have been carried, or have been attempt ed to be carried, in a ship, or for the
restoration of a ship or any such goods after seizure, or for droits of Admiralty.
(3) The proceedings referred to in subsection (1)(b) are —
(a) any application to the High Court under the Merchant Shipping Act 1995;
(b) any action to enforce a claim for damage, loss of life or personal injury arising
out of—
(i) a collision between ships; or
(ii) the carrying out of or omission to carry out a manoeuvre in the case of one or
more of two or more ships; or
(iii) non-compliance, on the part of one or more of two or more ships, with the
collision regulations;
(c) any action by shipowners or other persons under the Merchant Shipping Act
1995 for the limitation of the amount of their liability in connection with a shi p or other
property.
(4) The jurisdiction of the High Court under subsection (2)(b) includes power to
settle any account outstanding and unsettled between the parties in relation to the ship,
and to direct that the ship, or any share thereof, shall be sold, and to make such other
order as the court thinks fit.
(5) Subsection (2)(e) extends to—
(a) any claim in respect of a liability incurred under Chapter III of Part VI of the
Merchant Shipping Act 1995;
(b) any claim in respect of a liability falling on the International Oil Pollution
Compensation Fund or on the International Oil Pollution Fund 1992 under Chapter VI of
Part VI of the Merchant Shipping Act 1995.
(6) In subsection (2)(j)—
(a) the "Salvage Convention 1989" means the International Convention on Salvage,
1989 as it has effect under section 224 of the Merchant Shipping Act 1995;
(b) the reference to salvage services includes services rendered in saving life from
a ship and the reference to any claim under any contract for or in relation to salvage
services includes any claim arising out of such a contract whether or not arising during
the provision of the services;
(c) the reference to a corresponding claim in connection with an aircraft is a
reference to any claim corresponding to any claim mentioned in sub -paragraph (i) or (ii)
of paragraph (j) which is available under section 87 of the Civil Aviation Act 1982.
(7) The preceding provisions of this section apply —
(a) in relation to all ships or aircraft, whether British or not and whether registered
or not and wherever the residence or domicile of their owners may be;
(b) in relation to all claims, wherever arising (including, in the case of cargo or
wreck salvage, claims in respect of cargo or wreck found on land); and
(c) so far as they relate to mortgages and charges, to all mortgages or charges,
whether registered or not and whether legal or equitable, including mortgages and
charges created under foreign law:
Provided that nothing in this subsection shall be construed as extending the cases in
which money or property is recoverable under any of the provisions of the Merchant
Shipping Act 1995. Mode of exercise of Admiralty jurisdiction
21.—(1) Subject to section 22, an action in personam may be brought in the High
Court in all cases within the Admiralty jurisdiction of that court.
(2) In the case of any such claim as is mentioned in section 20(2)(a)(c) or (s) or
any such question as is mentioned in section 20(2)(b), an action in rem may be brought
in the High Court against the ship or property in connection with which the claim or
question arises.
(3) In any case in which there is maritime lien or other charge on any ship, aircr aft
or other property for the amount claimed, an action in rem may be brought in the High
Court against that ship, aircraft or property.
(4) In the case of any such claim as is mentioned in section 20(2)(e) to (r), where
—
(a) the claim arises in connection with a ship; and
(b) the person who would be liable on the claim in an action in personam ("the
relevant person") was, when the cause of action arose, the owner or charterer of, or in
possession or in control of, the ship,
an action in rem may (whether or not the claim gives rise to a maritime lien on that
ship) be brought in the High Court against —
(i) that ship, if at the time when the action is brought the relevant person is either
the beneficial owner of that ship as respects all the shares in it or the charterer of it
under a charter by demise; or
(ii) any other ship of which, at the time when the action is brought, the relevant
person is the beneficial owner as respects all the shares in it.
(5) In the case of a claim in the nature of towage or pilotage in respect of an
aircraft, an action in rem may be brought in the High Court against that aircraft if, at the
time when the action is brought, it is beneficially owned by the person who would b e
liable on the claim in an action in personam.
(6) Where, in the exercise of its Admiralty jurisdiction, the High Court orders any
ship, aircraft or other property to be sold, the court shall have jurisdiction to hear and
determine any question arising as to the title to the proceeds of sale.
(7) In determining for the purposes of subsections (4) and (5) whether a person
would be liable on a claim in an action in personam it shall be assumed that he has his
habitual residence or a place of business within England or Wales.
(8) 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. Restrictions on entertainment of actions in
personam in collision and other similar cases
22.—(1) This section applies to any claim for damage, loss of life or personal
injury arising out of—
(a) a collision between ships; or
(b) the carrying out of, or omission to carry out, a manoeuvre in the case of one or
more of two or more ships; or
(c) non-compliance, on the part of one or more of two or more ships, with the
collision regulations.
(2) The High Court shall not entertain any action in personam to enforce a claim to
which this section applies unless—
(a) the defendant has his habitual residence or a place of business within England
or Wales; or
(b) the cause of action arose within inland waters of England or Wales or within
the limits of a port of England or Wales; or
the court or has been heard and determined in the court.
In this subsection—
"inland waters" includes any part of the sea adjacent to the coast of the United
Kingdom certified by the Secretary of State to be waters falling by international law to
be treated as within the territorial sovereignty of Her Majesty apart from the operati on
of that law in relation to territorial waters;
"port" means any port, harbour, river, estuary, haven, dock, canal or other place so
long as a person or body of persons is empowered by or under an Act to make charges
in respect of ships entering it or using the facilities therein, and "limits of a port" means
the limits thereof as fixed by or under the Act in question or, as the case may be, by the
relevant charter or custom;
"charges" means any charges with the exception of light dues, local light dues a nd
any other charges in respect of lighthouses, bouys or beacons and of charges in respect
of pilotage.
(3) The High Court shall not entertain any action in personam to enforce a claim to
which this section applies until any proceedings previously brought by the plaintiff in
any court outside England and Wales against the same defendant in respect of the same
incident or series of incidents have been discontinued or otherwise come to an end.
(4) Subsections (2) and (3) shall apply to counterclaims (except c ounterclaims in
proceedings arising out of the same incident or series of incidents) as they apply to
actions, the references to the plaintiff and the defendant being for this purpose read as
references to the plaintiff on the counterclaim and the defendan t to the counterclaim
respectively.
(5) Subsections (2) and (3) shall not apply to any action or counterclaim if the
defendant thereto submits or has agreed to submit to the jurisdiction of the court.
(6) Subject to the provisions of subsection (3), the Hi gh Court shall have
jurisdiction to entertain an action in personam to enforce a claim to which this section
applies whenever any of the conditions specified in subsection (2)(a) to (c) is satisfied,
and the rules of court relating to the service of process outside the jurisdiction shall
make such provision as may appear to the rule -making authority to be appropriate
having regard to the provisions of this subsection.
(7) Nothing in this section shall prevent an action which is brough t in accordance
with the provisions of this section in the High Court being transferred, in accordance
with the enactments in that behalf, to some other court.
(8) For the avoidance of doubt it is hereby declared that this section applies in
relation to the jurisdiction of the High Court not being Admiralty jurisdiction, as well as
in relation to its Admiralty jurisdiction. High Court not to have jurisdiction in cases
within Rhine Convention
23. The High Court shall not have jurisdiction to determine any claim or question
certified by the Secretary of State to be a claim or question which, under the Rhine
Navigation Convention, falls to be determined in accordance with the provisions of that
Convention; and any proceedings to enforce such a claim which are commenced in the
High Court shall be set aside. Supplementary provisions as to Admiralty jurisdiction
24.—(1) In sections 20 to 23 and this section, unless the context otherwise requires
—
"collision regulations" means safety regulations under section 85 of the Merchant
Shipping Act 1995.
"goods" includes baggage;
"master" has the same meaning as in the Merchant Shipping Act 1995, and
accordingly includes every person (except a pilot) having comma nd or charge of a ship;
"the Rhine Navigation Convention" means the Convention of the 7th October 1868
as revised by any subsequent Convention;
"ship" includes any description of vessel used in navigation and (except in the
definition of "port" in section 22(2) and in subsection (2)(c) of this section) includes,
subject to section 2(3) of the Hovercraft Act 1968, a hovercraft;
"towage" and "pilotage", in relation to an aircraft, mean towage and pilotage while
the aircraft is water-borne.
(2) Nothing in sections 20 to 23 shall—
(a) be construed as limiting the jurisdiction of the High Court to refuse to entertain
an action for wages by the master or a member of the crew of a ship, not being a British
ship;
(b) affect the provisions of section 226 of the Merchant Shipping Act 1995 (power
of a receiver of wreck to detain a ship in respect of a salvage claim); or
(c) authorise proceedings in rem in respect of any claim against the Crown, or the
arrest, detention or sale of any of Her Majesty’s ships or Her Majesty’s aircraft, or,
subject to section 2(3) of the Hovercraft Act 1968, Her Majesty’s hovercraft, or of any
cargo or other property belonging to the Crown.
"Her Majesty’s ships" and "Her Maj esty’s aircraft" have the meanings given by
section 38(2) of the Crown Proceedings Act 1947;
"Her Majesty’s hovercraft" means hovercraft belonging to the Crown in right of
Her Majesty’s Government in the United Kingdom or Her Majesty’ s Government in
Northern Ireland. Civil Jurisdiction and Judgments Act 1982
(1982 c. 27)
[THE TEXT OF THE ACT AND SCHEDULES IS AS AMENDED. Part I.
Implementation of the Conventions Main implementing provisions Interpretation of
references to the Conventions and Contracting States
1.—(1) In this Act—
"the 1968 Convention" means the Convention on jurisdiction and the enforcement
of judgments in civil and commercial matters (including the Protocol annexed to that
Convention), signed at Brussels on 27th Septemb er 1968;
"the 1971 Protocol" means the Protocol on the interpretation of the 1968
Convention by the European Court, signed at Luxembourg on 3rd June 1971;
"the Accession Convention" means the Convention on the accession to the 1968
Convention and the 1971 Protocol of Denmark, the Republic of Ireland and the United
Kingdom, signed at Luxembourg on 9th October 1978;
"the 1982 Accession Convention" means the Convention on the accession of the
Hellenic Republic to the 1968 convention and the 1971 Protocol, with the adjustments
made to them by the Accession Convention, signed at Luxembourg on 25th October
1982;
"the Brussels Conventions" means the 1968 Convention, the 1971 Protocol, the
Accession Convention, the 1989 Accession Convention and the 1996 Accession
Convention.
Kingdom of Spain and the Portuguese Republic to the 1968 Convention and the 1971
Protocol, with the adjustments made to them by the Accession Convention and the 1982
Accession Convention, signed at Donostia —San Sebastian on 26th May 1989;
Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the 1968
Convention and the 1971 Protocol, with the adjustments made to them by the Accession
Convention, the 1982 Accession Convention and the 19 89 Accession Convention,
signed at Brussels on 29th November 1996,
"the Conventions" means the 1968 Convention, the 1971 Protocol, the Accession
Convention, the 1982 Accession Convention and the 1989 Accession Convention.
"the Regulation" means Council Regulation (EC) No. 44/2001 of 22nd December
2000 on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters.
(2) In this Act, unless the context otherwise requires —
(a) references to, or to any provision of, the 1968 Con vention or the 1971 Protocol
are references to that Convention, Protocol or provision as amended by the Accession
Convention, the 1982 Accession Convention, the 1989 Accession Convention and the
1996 Accession Convention; and
(aa) references to, or to any provision of, the Lugano Convention are references to
that Convention as amended on the accession to it of Poland; and
(b) any reference in any provision to a numbered Article without more is a
reference—
(i) to the Article so numbered of the 1968 Convention, in so far as the provision
applies in relation to that Convention, and
(ii)to the Article so numbered of the Lugano Convention, in so far as the provision
applies in relation to that Convention,
and any reference to a sub-division of a numbered Article shall be construed
accordingly.
(3) In this Act "Brussels Contracting State" means Denmark (which is not bound by
the Regulation, but was one of the parties acceding to the 1968 Convention under the
Accession Convention); "Contracting State" means—
(a) one of the original parties to the 1968 Convention (Belgium, the Federal
Republic of Germany, France, Italy, Luxembourg and The Netherlands); or
(b) one of the parties acceding to that Convention under the Accession Convention
(Denmark, the Republic of Ireland and the United Kingdom), or under the 1982
Accession Convention (the Hellenic Republic), or under the 1989 Accession
Convention (Spain and Portugal), or under the 1996 Accession Convention (Austria,
Finland and Sweden)
being a State in respect of which the Accession Convention has entered into force
in accordance with Article 39 of that Convention, or being a State in respect of which
the 1982 Accession Convention has entered into force in accordance with Article 15 of
that Convention, or being a State in respect of which the 1989 Accession Convention
has entered into force in accordance with Article 32 of that Convention, or being a state
in respect of which the 1996 Accession Convention has entered into force in accordance
with Article 16 of that Convention, as the case might be.
"Lugano Contracting State" means—
(a) one of the original parties to the Lugano Convention, that is to say Austria,
Belgium, Denmark, Finland, France, the Federal Republic of Germany, the Helleni c
Republic, Iceland, the Republic of Ireland, Italy, Luxembourg, the Netherlands, Norway,
Portugal, Spain, Sweden, Switzerland and the United Kingdom; or
(b) a party who has subsequently acceded to that Convention, that is to say, Poland.
"Regulation State" in any provision, in the application of that provision in relation
to the Regulation, has the same meaning as "Member State" in the Regulation, that is all
Members States except Denmark.
(4) Any question arising as to whether it is the Regulation, any of the Brussels
Conventions, or the Lugano Convention which applies in the circumstances of a
particular case shall be determined as follows —
(a) in accordance with Article 54B of the Lugano Convention (which determines
the relationship between the Brussels Conventions and the Lugano Convention); and
(b) in accordance with Article 68 of the Regulation (which determines the
relationship between the Brussels Conventions and the Regulation). The Brussels
Conventions to have the force of law
2.—(1) The Brussels Conventions shall have the force of law in the United
Kingdom and judicial notice shall be taken of them.
(2) For convenience of reference there are set out in Schedules 1, 2, 3, 3A, 3B and
3C respectively the English texts of—
(a) the 1968 Convention as amended by Titles II and III of the Accession
Convention, by Titles II and III of the 1982 Accession Convention by Titles II and III of,
and Annex I(d) to, the 1989 Accession Convention and by Titles II and III of the 1996
Accession Convention;
(b) the 1971 Protocol as amended by Title IV of the Accession Convention, by
Title IV of the 1982 Accession Convention by Title IV of the 1989 Accession
Convention and by Title IV of the 1996 Access ion Convention;
(c) Titles V and VI of the Accession Convention (transitional and final provisions)
as amended by Title V of the 1989 Accession Convention;
(d) Titles V and VI of the 1982 Accession Convention (transitional and final
provisions); and
(e) Titles VI and VII of the 1989 Accession Convention (transitional and final
provisions),
(f) Titles V and VI of the 1996 Accession Convention (transitional and final
provisions),
being texts prepared from the authentic English texts referred to in Articles 37 and
41 of the Accession Convention, in Article 17 of the 1982 Accession Convention, in
Article 34 of the 1989 Accession Convention and in Article 18 of the 1996 Accession
Convention. Interpretation of the Brussels Conventions
3.—(1) Any questions as to the meaning or effect of any provision of the [Brussels
Conventions] shall, if not referred to the European Court in accordance with the 1971
Protocol, be determined in accordanc e with the principles laid down by and any
relevant decision of the European Court.
(2) Judicial notice shall be taken of any decision of, or expression or opinion by,
the European Court on any such question.
(3) Without prejudice to the generality of subsection (1), the following reports
(which are reproduced in the Official Journal of the Communities), namely —
(a) the reports by Mr P. Jenard on the 1968 Convention and the 1971 Protocol; and
(b) the report by Professor Peter Schlosser on the Access ion Convention; and
(c) the report by Professor Demetrios I. Evrigenis and Professor K. D. Kerameus
on the 1982 Accession Convention; and
(d) the report by Mr Martinho de Almeida Cruz, Mr Manuel Desantes Real and Mr
P. Jenard on the 1989 Accession Convention,
may be considered in ascertaining the meaning or effect of any provision of the
[Brussels Conventions] and shall be given such weight as is appropriate in the
circumstances. The Lugano Convention to have the forc e of law
3A.—(1) The Lugano Convention shall have the force of law in the United
Kingdom, and judicial notice shall be taken of it.
(2) For convenience of reference there is set out in Schedule 3C the English text of
the Lugano Convention as amended on the accession of Poland to that Convention.
Interpretation of the Lugano Convention
3B.—(1) In determining any question as to the meaning or effect of a provision of
the Lugano Convention, a court in the United Kingdom shall, in accordance with
Protocol No. 2 to that Convention, take account of any principles laid down in any
relevant decision delivered by a court of any other Lugano Contracting State concerning
provisions of the Convention.
(2) Without prejudice to any practice of the courts as to the matters which may be
considered apart from this section, the report on the Lugano Convention by Mr P. Jenard
and Mr G. Moller ¨ (which is reproduced in the Official Journal of the Communities of
28th July 1990) may be considered in ascertaining the meaning or effect of any
provision of the Convention and shall be given such weight as is appropriate in the
circumstances. Supplementary provisions as to recognition and enforcement of
judgments Enforcement of judgments other than mainten ance orders
4.—(1) A judgment, other than a maintenance order, which is the subject of an
application under Article 31 of the 1968 Convention or of the Lugano Convention for its
enforcement in any part of the United Kingdom shall, to the extent that its en forcement is
authorised by the appropriate court, be registered in the prescribed manner in that court.
In this subsection "the appropriate court" means the court to which the application
is made in pursuance of Article 32 (that is to say, the High Court o r the Court of
Session).
(2) Where a judgment is registered under this section, the reasonable costs or
expenses of and incidental to its registration shall be recoverable as if they were sums
recoverable under the judgment.
(3) A judgment registered under this section shall, for the purposes of its
enforcement, be of the same force and effect, the registering court shall have in relation
to its enforcement the same powers, and proceedings for or with respect to its
enforcement may be taken, as if the judgment had been originally given by the
registering court and had (where relevant) been entered.
(4) Subsection (3) is subject to Article 39 (restriction on enforcement where
appeal pending or time for appeal unexpired), to sectio n 7 and to any provision made by
rules of court as to the manner in which and conditions subject to which a judgment
registered under this section may be enforced.
5. ... Appeals under Article 37, second paragraph and Article 41
6.—(1) The single further appeal on a point of law referred to in Article 37, in the
1968 Convention and in the Lugano Convention, second paragraph and Article 41 in
relation to the recognition or enforcement of a judgment other than a maintenance order
lies—
(a) in England and Wales or Northern Ireland, to the Court of Appeal or to the
House of Lords in accordance with Part II of the Administration of Justice Act 1969
(appeals direct from the High Court to the House of Lords);
(b) In Scotland, to the Inner House of the Court of Session.
(2) Paragraph (a) of subsection (1) has effect notwithstanding section 15(2) of the
Administration of Justice Act 1969 (exclusion of direct appeal to the House of Lords in
cases where no appeal to that House lies from a decision of the Court of Appeal).
(3) The single further appeal on a point of law referred to in each of those
Conventions in Article 37, second paragraph and Article 41 in relation to the
recognition or enforcement of a maintenance order lies—
(a) in England and Wales, to the High Court by way of case stated in accordance
with section 11 of the Magistrates’ Court Act 1980;
(b) In Scotland, to the Inner House of the Court of Session;
(c) in Northern Ireland, to the Court of Appeal. Interest on registered judgments
7.—(1) Subject to subsection (4), where in connection with an application for
registration of a judgment under section 4 or 5 the applicant shows —
(a) that the judgment provides for the paym ent of a sum of money; and
(b) that in accordance with the law of the Contracting State in which the judgment
was given interest on that sum is recoverable under the judgment from a particular date
or time,
the rate of interest and the date or time from which it is so recoverable shall be
registered with the judgment and, subject to any provision made under subsection (2),
the debt resulting, apart from section 4(2), from the registration of the judgment shal l
carry interest in accordance with the registered particulars.
(2) Provision may be made by rules of court as to the manner in which and the
periods by reference to which any interest payable by virtue of subsection (1) is to be
calculated and paid, including provision for such interest to cease to accrue as from a
prescribed date.
(3) Costs or expenses recoverable by virtue of section 4(2) shall carry interest as
if they were the subject of an order for the payment of costs or expenses made by the
registering court on the date of registration.
(4) Interest on arrears of sums payable under a maintenance order registered under
section 5 in a magistrates’ court in England and Wales or Northern Ireland shall not be
recoverable in that court, but without prejudice to the operation in relation to any such
order or section 2A of the Maintenance Orders Acts 1958 or section 11A of the
Maintenance and Affiliation Orders Act (Northern Ireland) 1966 (which enable interest
to be recovered if the order is re-registered for enforcement in the High Court).
(5) Except as mentioned in subsection (4), debts under judgments registered under
section 4 or 5 shall carry interest only as provided by this section.
8. ... Other supplementary provisions Provisions supplementary to Title VII of
1968 Convention
9.—(1) The provisions of Title VII of the 1968 Convention [and, apart from
Article 54B, of Title VII of the Lugano Convention] (relationship between the
[Convention in question] and other convention s to which Contracting States are or may
become parties) shall have effect in relation to —
(a) any statutory provision, whenever passed or made, implementing any such other
convention in the United Kingdom; and
(b) any rule of law so far as it has the effect of so implementing any such other
convention,
as they have effect in relation to that other convention itself.
(2) Her Majesty may by Order in Council declare a provision of a convention
entered into by the United Kingdom to be a provision whereby the United Kingdom
assumed an obligation of a kind provided for in Article 59 (which allows a Contracting
State to agree with a third State to withhold recognition in certain cases from a judgment
given by a court in another Contracting State which took jurisdiction on one of the
grounds mentioned in the second paragraph of Article 3). Allocation within UK of
jurisdiction with respect to trusts and consumer contracts
10.—(1) The provisions of this section have effect for the purpose of allocating
within the United Kingdom jurisdiction in certain proceedings in respect of which the
1968 Convention or the Lugano Convention co nfers jurisdiction on the courts of the
United Kingdom generally and to which section 16 does not apply.
(2) Any proceedings which by virtue of Article 5(6) (trusts) are brought in the
United Kingdom shall be brought in the courts of the part of the Unit ed Kingdom in
which the trust is domiciled.
(3) Any proceedings which by virtue of the first paragraph of Article 14 (consumer
contracts) are brought in the United Kingdom by a consumer on the ground that he is
himself domiciled there shall be brought in the courts of the part of the United Kingdom
in which he is domiciled. Proof and admissibility of certain judgments and related
documents
11.—(1) For the purposes of the 1968 Convention and the Lugano Convention —
(a) a document, duly authenticated, which purports to be a copy of a judgment
given by a court of a Contracting State other than the United Kingdom shall without
further proof be deemed to be a true copy, unless the contrary is shown; and
(b) the original or a copy of any such document as is mentioned in Article 46(2) or
47 (supporting documents to be produced by a party seeking recognition or enforcement
of a judgment) shall be evidence, and in Scotland sufficient evidence, of any matter to
which it relates.
(2) A document purporting to be a copy of a judgment given by any such court as is
mentioned in subsection (1)(a) is duly authenticated for the purposes of this section if it
purports—
(a) to bear the seal of that court; or
(b) to be certified by any person in his capacity as a judge or officer of that court to
be a true copy of a judgment given by that court.
(3) Nothing in this section shall prejudice the admission in evidence of any
document which is admissible apart from this section. Provision for issue of copies of,
and certificates in connection with, UK judgments
12. Rules of court may make provision for enabling any interested party wishing to
secure under the 1968 Convention or the Lugano Convention the recognition or
enforcement in another Contracting State of a judgment given by a court in the United
Kingdom to obtain, subject to any conditions specified in the rules —
(a) a copy of the judgment; and
(b) a certificate giving particulars relating to the judgment and the proceedings in
which it was given. Modifications to cover authentic instruments and court settlements
13.—(1) Her Majesty may by Order in Council provide that —
(a) any provision of this Act relating to the recognition or enforcement in the
United Kingdom or elsewhere of judgments to which the 1968 Convention or the Lugano
Convention applies; and
(b) any other statutory provision, whenever passed or made, so relating,
shall apply, with such modifications as may be specified in the Order, in relation to
documents and settlements within Title IV of the 1968 Convention or, as the case may
be, Title IV of the Lugano Convention (authentic instruments and court settlements
enforceable in the same manner as judgments) as if they were judgments to which the
Convention in question applies.
(2) An Order in Council under this section may make different provision in relation
to different descriptions of documents and settlements.
(3) Any Order in Council under this section shall be subject to annulment in
pursuance of a resolution of either House of Parliament. Modifications consequential on
revision of the Conventions
14.—(1) If at any time it appears to Her Majesty in Council that Her Majesty’s
Government in the United Kingdom have agreed to a revision of the Lugano Convention
or any of the Brussels Conventions, including in particular any revision connected with
the accession to the Lugano Convention or the 1968 Convention of one or more further
states, Her Majesty may by Order in Council make such modifications of this Act or any
other statutory provision, whenever passed or made, as Her Majesty considers
appropriate in consequence of the revision.
(2) An Order in Council under this section sha ll not be made unless a draft of the
Order has been laid before Parliament and approved by a resolution of each House of
Parliament.
(3) In this section "revision" means an omission from, addition to or alteration of
any of the Conventions and includes replacement of any of the Conventions to any extent
by another convention, protocol or other description of international agreement.
Interpretation of Part I and consequential amendments
15.—(1) In this Part, unless the context otherwise requires —
"judgment" has the meaning given by Article 25;
"maintenance order" means a maintenance judgment within the meaning of the 1968
Convention or as the case may be, the Lugano Convention;
"payer", in relation to a maintenance order, means the person liable to make the
payments for which the order provides;
"prescribed" means prescribed by rules of court.
(2) References in this Part to a judgment registered under section 4 or 5 include, to
the extent of its registration, references to a judgment so registered t o a limited extent
(3) Anything authorised or required by the 1968 Convention the Lugano
only.
Convention or this Part to be done by, to or before a particular magistrates’ court may be
done by, to or before any magistrates’ court acting for the same petty sessions area (or,
in Northern Ireland, petty sessions district) as that court. Part II. Jurisdiction, and
Recognition and Enforcement of Judgments, within United Kingdom Allocation
within UK of jurisdiction in certain civi l proceedings
16.—(1) The provisions set out in Schedule 4 (which contains a modified version
of Chapter II of the Regulation) shall have effect for determining, for each part of the
United Kingdom, whether the courts of law of that part, or any particular court of law in
that part, have or has jurisdiction in proceedings where —
(a) the subject-matter of the proceedings is within the scope of the Regulation as
determined by Article 1 of the Regulation (whether or not the Regulation has effect in
relation to the proceedings); and
(b) the defendant or defender is domiciled in the United Kingdom or the
proceedings are of a kind mentioned in Article 22 of the Regulation (exclusive
jurisdiction regardless of domicile).
(3) In determining any question as to th e meaning or effect of any provision
contained in Schedule 4—
(a) regard shall be had to any relevant principles laid down by the European Court
in connection with Title II of the 1998 Convention or Chapter II of the Regulation and to
any relevant decision of that court as to the meaning or effect of any provision of that
Title or Chapter; and
(b) without prejudice to the generality of paragraph (a), the reports mentioned in
section 3(3) may be considered and shall, so far as rele vant, be given such weight as is
appropriate in the circumstances.
(4) The provisions of this section and Schedule 4 shall have effect subject to the
Regulation, the 1968 Convention and the Lugano Convention and to the provisions of
section 17. Exclusion of certain proceedings from Schedule 4
17.—(1) Schedule 4 shall not apply to proceedings of any description listed in
Schedule 5 or to proceedings in Scotland under any enactment which confers
jurisdiction on a Scottish court in respect of a specific subjec t-matter on specific
grounds.
(2) Her Majesty may by Order in Council —
(a) add to the list in Schedule 5 any description of proceedings in any part of the
United Kingdom; and
(b) remove from that list any description of proceedings in any part of the U nited
Kingdom (whether included in the list as originally enacted or added by virtue of this
subsection).
(a) may make different provisions for different descriptions of proceedings, for the
same description of proceedings in different courts or for different parts of the United
Kingdom; and
(b) may contain such transitional and other incidental provisions as appear to Her
(3) Anything authorised or required by the 1968 Convention the Lugano
Majesty to be appropriate.
(4) An Order in Council under subsection (2) shall not be made unless a draft of
the Order has been laid before Parliament and approved by a resolution of each House
of Parliament. Enforcement of UK judgments in other parts of UK
18.—(1) In relation to any judgment to which this section applies—
(a) Schedule 6 shall have effect for the purpose of enabling any money provisions
contained in the judgment to be enforced in a part of the United Kingdom other than the
part in which the judgment was given; and
(b) Schedule 7 shall have effect for the purpose of enabling any non -money
provisions so contained to be so enforced.
(2) In this section "judgment" means any of the following (references to the giving
of a judgment being construed accordingly) —
(a) any judgment or order (by whatever name called) given or made by a court of
law in the United Kingdom;
(b) any judgment or order not within paragraph (a) which has been entered in
England and Wales or Northern Ireland in the High Court or a county court;
(c) any document which in Scotland has been registered for execution in the Books
of Council and Session or in the sheriff court books kept for any sheriffdom;
(d) any award or order made by a tribunal in any part of the United Kingdom which
is enforceable in that part without an order of a court of law;
(e) an arbitration award which has become enforceable in the part of the United
Kingdom in which it was given in the same manner as a judgment given by a court of
law in that part;
and, subject to the following provisions of this section, the section applies to all
such judgments.
(3) Subject to subsection (4), this section does not apply to —
(a) a judgment given in proceedings in a magistrates’ court in England and Wales
or Northern Ireland;
(b) a judgment given in proceedings other than civil proceedings;
(ba) a judgment given in the exercise of jurisdiction in relation to insolvency
within the meaning of section 426 of the Insolvency Act 1986
(c) a judgment given in proceedings relating to —
(i) (repealed Insolvency Act 1985 Schedule 10)
(ii) (repealed ibid.)
(iii) the obtaining of title or administer the estate of a deceased person.
(4) This section applies, whatever the nature of the proceedings in which it is
made, to—
(a) a decree issued under section 13 of the Court of Exchequer (Scotland) Act
1856 (recovery of certain rentcharges and penalties by process of the Court of Session);
(b) an order which is enforceable in the same manner as a judgment of the High
Court in England and Wales by virtue of section 16 of the Contempt of Court Act 1981
or section 140 of the Supreme Court Act 1981 (which relate to fines for contempt of
court and forfeiture of recognisances).
(4A) This section does not apply as respects —
(a) the enforcement in Scotland of orders made by the High Court or a county court
in England and Wales under or for the purposes of Part VI of the Criminal Justice Act
1988 or the Drug Trafficking Act 1994 (confiscation of the proceeds of certain offences
or of drug trafficking); or
(b) the enforcement in England and Wales of orders made by the Court of Session
under or for the purposes of Part I of the Criminal Justice (Scotland) Act 1987
(confiscation of the proceeds of drug trafficking).
(5) This section does not apply to so much of any judgment as —
(a) is an order to which section 16 of the Maintenance Orders Act 1950 applies
(and is therefore an order for whose enforcement in another part of the United Kingdom
provision is made by Part II of that Act);
(b) concerns the status or legal capacity of an individual;
(c) relates to the management of the affairs of a person not capable of managing his
own affairs;
(d) is a provisional (including protective) measure other than an order fo r the
making of an interim payment;
and except whether otherwise stated references to a judgment to which this section
applies are to such a judgment exclusive of any such provisions.
(6) The following are within subsection (5)(b), but without prejudice to the
generality of that provision—
(a) a decree of judicial separation or of separation;
(b) any order which is a Part I order for the purposes of the Family Law Act 1986.
(7) This section does not apply to a judgment of a court outside the United
Kingdom which falls to be treated for the purposes of its enforcement as a judgment of a
court of law in the United Kingdom by virtue of registration under Part II of the
Administration of Justice Act 1920, Part I of the Foreign Judgments (Reciprocal
Enforcement) Act 1933, Part I of the Maintenance Orders (Reciprocal Enforcement) Act
1972 or section 4 or 5 of this Act.
(8) A judgment to which this section applies, other than a judgment within
paragraph (e) of subsection (2), shall not be enforced in another part of the United
Kingdom except by way of registration under Schedule 6 or 7. Recognition of UK
judgments in other parts of UK
19.—(1) A judgment to which this section applies given in one part of the United
Kingdom shall not be refused recognition in another part of the United Kingdom solely
on the ground that, in relation to that judgment, the court which gave it was not a court of
competent jurisdiction according to the rules of private internal law in force in that
other part.
(2) Subject to subsection (3), this section applies to any judgment to which section
18 applies.
(3) This section does not apply to —
(a) the documents mentioned in paragraph (c) of the definition of "judgment" in
section 18(2);
(b) the awards and orders mentioned in paragraphs (d) and (e) of that definition;
(c) the decrees and orders referred to in section 18(4). Part III. Jurisdiction in
Scotland Rules as to jurisdiction in Scotland
20.—Subject to the Regulation, to Parts I and II and to the following provisions of
this Part, Schedule 8 has effect to determine in what circumstances a person may be
sued in civil proceedings in the Court of Session or in a sheriff court.
(2) Nothing in Schedule 8 affects the competence as respects subject -matter or
value of the Court of Session or of the sheriff court.
(3) Section 6 of the Sheriff Courts (Scotland) Act 1907 shall cease to have effect
to the extent that it determines jurisdiction in relation to any matter to which Schedule 8
applies.
(5) In determining any question as to the meaning or effect of any provision
contained in Schedule 8—
(a) regard shall be had to any relevant principles laid down by the European Court
in connection with Title II of the 1968 Convention or Chapter II of the Regulation and to
any relevant decision of that court as to the meaning or effect of any provision of that
Title or that Chapter; and
(b) without prejudice to the generality of paragraph (a), the reports mentioned in
section 3(3)
may be considered and shall, so far as relevant, be given such weight as is
appropriate in the circumstances. Part IV. Miscellaneous Provisions Provisions
relating to jurisdiction Interim relief and protective measures in cases of doubtful
jurisdiction
24.—(1) Any power of a court in England and Wales or Northern Ireland to grant
interim relief pending trial or pending the determination of an appeal shall ex tend to a
case where—
(a) the issue to be tried, or which is the subject of the appeal, relates to the
jurisdiction of the court to entertain the proceedings; or
(b) the proceedings involve the reference to any matter to the European Court
under the 1971 Protocol.
(2) Any power of a court in Scotland to grant protective measures pending the
decision of any hearing shall apply to a case where —
(a) the subsection of the proceedings includes a question as to the jurisdiction of
the court to entertain them; or
(b) the proceedings involve the reference of a matter to the European Court under
the 1971 Protocol.
(3) Subsections (1) and (2) shall not be construed as restricting any power to grant
interim relief or protective measures which a court may have apart from this section.
Interim relief in England and Wales and Northern Ireland in the absence of substantive
proceedings
25.—(1) The High Court in England and Wales or Northern Ireland shall have
power to grant interim relief where —
(a) proceedings have been or are to be commenced in a [Brussels or Lugano
Contracting State] [or a Regulation State] other than the United Kingdom or in a part of
the United Kingdom other than that in which the High Court in question exerc ises
jurisdiction; and
(b) they are or will be proceedings whose subject -matter is within the scope of the
Regulation as determined by Article 1 of the Regulation (whether or not the Regulation
has effect in relation to the proceedings).
(2) On an application for any interim relief under subsection (1) the court may
refuse to grant that relief if, in the opinion of the court, the fact that the court has no
jurisdiction apart from this section in relation to the subject -matter of the proceedings in
question makes it inexpedient for the court to grant it.
(3) Her Majesty may by Order in Council extend the power to grant interim relief
conferred by subsection (1) so as to make it exercisable in relation to proceedings of
any of the following descriptions, namel y—
(a) proceedings commenced or to be commenced otherwise than in a [Brussels or
Lugano Contracting State] or Regulation State;
(b) proceedings whose subject -matter is not within the scope of the 1968
Regulation as determined by Article 1 of the Regula tion;
(c) . . .
(a) may confer power to grant only specified descriptions of interim relief;
proceedings pending in different countries or courts outside the United Kingdom or in
by the Order.
(5) . . .
(6) Any Order in Council under subsection (3) shall be subject to annulment in
pursuance of a resolution of either House of Parliament.
(7) In this section "interim relief", in relation to the High Court in England and
Wales or Northern Ireland, means interim relief of any kind which that court has power
to grant in proceedings relating to matters within its jurisdiction, other than —
(a) a warrant for the arrest of property; or
(b) provision for obtaining evidence. Security in Ad miralty proceedings in
England and Wales or Northern Ireland in case of stay, &c
26.—(1) Where in England and Wales or Northern Ireland a court stays or
dismisses Admiralty proceedings on the ground that the dispute in question should be
submitted to arbitration or to the determination of the courts of another part of the United
Kingdom or of an overseas country, the court may if in those proceedings property has
been arrested or bail or other security has been given to prevent or obtain release from
arrest—
(a) order that the property arrested be retained as security for the satisfaction of
any award or judgment which—
(i) is given in respect of the dispute in the arbitration or legal proceedings in
favour of which those proceedings are stayed or dismissed; and
(ii) is enforceable in England and Wales or, as the case may be, in Northern
Ireland; or
(b) order that the stay or dismissal of those proceedings be conditional on the
provision of equivalent security for the satisfaction of any such award or judgmen t.
(2) Where a court makes an order under subsection (1), it may attach such
conditions to the order as it thinks fit, in particular conditions with respect to the
institution or prosecution of the relevant proceedings.*
(3) Subject to any provisions made by rules of court and to any necessary
modifications, the same law and practice shall apply in relation to property retained in
pursuance of an order made by a court under subsection (1) as would apply if it were
held for the purposes of proceedings in that court. 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 wa rrant for the arrestment of any assets
situated in Scotland;
(b) subject to subsection (2)(c), grant a warrant of inhibition over any property
situated in Scotland; and
(c) grant interim interdict.
(2) Subsection (1) applies to any case in which —
(a) proceedings have been commenced but not concluded, or, in relation to
paragraph (c) of that subsection, are to be commenced, in another [Brussels, or Lugano
Contracting State] [, in another Regulation State] or in England and Wales or Northern
Ireland;
(b) the subject matter of the proceedings is within the scope of the Regulation as
determined by Article 1 of the Regulation; and
(c) in relation to paragraphs (a) and (b) of subsection (1), such a warrant could
competently have been granted in equivalen t proceedings before a Scottish court;
but it shall not be necessary, in determining whether proceedings have been
commenced for the purpose of paragraph (a) of this subsection, to show that any
document has been served on or notice given to the defender.
(3) Her Majesty may by Order in Council confer on the Court of Session power to
do anything mentioned in subsection (1) or in section 28 in relation to proceedings of
any of the following descriptions, namely —
(a) proceedings commenced otherwise than in a Brussels, or Lugano Contracting
State or Regulation State;
[(b) proceedings whose subject-matter is not within the scope of the Regulation as
determined by Article 1 of the Regulation];
(c) arbitration proceedings;
(d) in relation to subsection (1)(c) or section 28, proceedings which are to be
commenced otherwise than in a Brussels or Lugano Contracting State or Regulation
State.
(a) may confer power to do only certain of the things mentioned in subsection (1)
or in section 28;
proceedings pending in different countries or courts outside the Unit ed Kingdom or in
by the Order.
(5) Any Order in Council under subsection (3) shall be subje ct to annulment in
pursuance of a resolution of either House of Parliament. Application of s.1 of
Administration of Justice (Scotland) Act 1972
28. When any proceedings have been brought, or are likely to be brought, in
another Brussels, or Lugano Contracting State, in a Regulation State or in England and
Wales or Northern Ireland in respect of any matter which is within the scope of the
Regulation as determined by Article 1, the Court of Session shall have the like power to
make an order under section 1 of the Administration of Justice (Scotland) Act 1972 as
amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 as if the
proceedings in question had been brought, or were likely to be brought, in that court.
Service of county court process outside Northern Ireland
29. The County Court Rules Committee established by Article 46 of the County
Courts (Northern Ireland) Order 1980 may make county court rules with respect to the
service of process outside Northern Ireland and the conditions subj ect to which process
may be so served; and accordingly in Article 48 of that Order (powers of Rules
Committee), after paragraph (e) there shall be added —
"(f) the service of process outside Northern Ireland, and the conditions subject to
which process may be so served.". Proceedings in England and Wales or Northern
Ireland for torts to immovable property
30.—(1) The jurisdiction of any court in England and Wales or Northern Ireland to
entertain proceedings for trespass to, or any other tort affecting, immovable property
shall extend to cases in which the property in question is situated outside that part of the
United Kingdom unless the proceedings are principally concerned with a quest ion of the
title to, or the right to possession of, that property.
(2) Subsection (1) has effect subject to the 1968 Convention and the Lugano
Convention and the Regulation and to the provisions set out in Schedule 4. Provisions
relating to recognition and enforcement of judgments Overseas judgments given
against states, etc
31.—(1) A judgment given by a court of an overseas country against a state other
than the United Kingdom or the state to which that court belongs shall be recognised and
enforced in the United Kingdom if, and only if—
(a) it would be so recognised and enforced if it had not been given against a state;
and
(b) that court would have had jurisdiction in the matter if it had applied rules
corresponding to those applicable to such matters in the United Kingdom in accordance
with sections 2 to 11 of the State Immunity Act 1978.
(2) References in subsection (1) to a judgment given against a state include
references to judgments of any of the following descriptions given in relation to a state
—
(a) judgments against the government, or a department of the government, of the
state but not (except as mentioned in paragraph (c)) judgments against an entity w hich is
distinct from the executive organs of government;
(b) judgments against the sovereign or head of state in his public capacity;
(c) judgments against any such separate entity as is mentioned in paragraph (a)
given in proceedings relating to anyt hing done by it in the exercise of the sovereign
authority of the state.
(3) Nothing in subsection (1) shall affect the recognition or enforcement in the
United Kingdom of a judgment to which Part I of the Foreign Judgments (Reciprocal
Enforcement) Act 1933 applies by virtue of section 4 of the Carriage of Goods by Road
Act 1965, section 17(4) of the Nuclear Installations Act 1965, s. 166(4) of the Merchant
Shipping Act 1995, section 6 of the International Transport Conventions Act 1983 or
section 5 of the Carriage of Passengers by Road Act 1974.
(4) Sections 12, 13 and 14(3) and (4) of the State Immunity Act 1978 (service of
process and procedural privileges) shall apply to proceedings for the recognition or
enforcement in the United Kingdom of a judgme nt given by a court of an overseas
country (whether or not that judgment is within subsection (1) of this section) as they
apply to other proceedings.
(5) In this section "state", in the case of a federal state, includes any of its
constituent territories. Overseas judgments given in breach of agreement for settlement
of disputes
32.—(1) Subject to the following provisions of this section, a judgment given by a
court of an overseas country in any proceedings shall not be recognised or enforced in
the United Kingdom if—
(a) the bringing of those proceedings in that court was contrary to an agreement
under which the dispute in question was to be settled otherwise than by proceedings in
the courts of that country; and
(b) those proceedings were not brought in that court by, or with the agreement of,
the person against whom the judgment was given; and
(c) that person did not counterclaim in the proceedings or otherwise submit to the
jurisdiction of that court.
(2) Subsection (1) does not apply where the agreement referred to in paragraph (a)
of that subsection was illegal, void or unenforceable or was incapable of being
performed for reasons not attributable to the fault of the party bringing the proceedings
in which the judgment was given.
(3) In determining whether a judgment given by a court of an overseas country
should be recognised or enforced in the United Kingdom, a court in the United Kingdom
shall not be bound by any decision of the overseas court relating to any of the matters
mentioned in subsection (1) or (2).
(4) Nothing in subsection (1) shall affect the recognition or enforcement in the
United Kingdom of—
(a) a judgment which is required to be recognised or enforced there under the 1968
Convention or the Lugano Convention or the Regulation;
(b) a judgment to which Part I of the Foreign Judgments (Reciprocal Enforcement)
Act 1933 applies by virtue of section 4 of the Carriage of Goods by Road Act 1965,
section 17(4) of the Nuclear Installations Act 1965, sec tion 6 of the International
Transport Conventions Act 1983, regulation 8 of the Railways (Convention on
International Carriage by Rail) Regulations 2005 or section 34(1)(a) of the Merchant
Shipping Act 1995. Certain steps not to amount to submission to jurisdiction of overseas
court
33.—(1) For the purposes of determining whether a judgment given by a court of
an overseas country should be recognised or enforced in England and Wales or North ern
Ireland, the person against whom the judgment was given shall not be regarded as
having submitted to the jurisdiction of the court by reason only of the fact that he
appeared (conditionally or otherwise) in the proceedings for all or any one or more of
the following purposes, namely—
(a) to contest the jurisdiction of the court;
(b) to ask the court to dismiss or stay the proceedings on the ground that the dispute
in question should be submitted to arbitration or to the determination of the courts of
another country;
(c) to protect, or obtain the release of, property seized or threatened with seizure in
the proceedings.
(2) Nothing in this section shall affect the recognition or enforcement in England
and Wales or Northern Ireland of a judgment which is required to be recognised or
enforced there under the 1968 Convention or the Lugano Convention or the Regulation.
Certain judgments a bar to further proceedings on the same cause of action
34. No proceedings may be brought by a person in England and Wales or Northern
in proceedings between the same parties, or their privies, in a court in another part of
the United Kingdom or in a court of an overseas country, unless that judgment is not
enforceable or entitled to recognition in England or Wales or, as the case may be, in
Northern Ireland. Minor amendments relating to overseas jud gments
35.—(1) The Foreign Judgments (Reciprocal Enforcement) Act 1933 shall have
effect with the amendments specified in Schedule 10, being amendments whose main
purpose is to enable Part I of that Act to be applied to judgments of courts other than
superior courts, to judgments providing for interim payments and to certain arbitration
awards.
(2) For section 10 of the Administration of Justice Act 1920 (issue of certificates
of judgments obtained in the United Kingdom) there shall be substituted —
"10.—(1) Where—
(a) a judgment has been obtained in the High Court in England or Northern Ireland,
or in the Court of Session in Scotland, against any person; and
(b) the judgment creditor wishes to secure the enforcement of the judgment in a part
of Her Majesty’s dominions outside the United Kingdom to which this Part of this Act
extends,
the court shall, on an application made by the judgment creditor, issue to him a
certified copy of the judgment.
(2) The reference in the preceding subsection to Her Majesty’s dominions shall be
construed as if that subsection had come into force in its present form at the
commencement of this Act.".
(3) In section 14 of the Administration of Justice Act 1920 (extent o f Part II of that
Act), after subsection (2) there shall be inserted —
"(3) Her Majesty may by Order in Council under this section consolidate any
Orders in Council under this section which are in force when the consolidating Order is
made.".
36. ...
37. ... Overseas judgments counteracting an award of multiple damages
38.—(1) Section 7 of the Protection of Trading Interests Act 1980 (which enables
provision to be made by Order in Council for the enforcement in the United Kingdom on
a reciprocal basis of overseas judgments directed to counteracting a judgment for
multiple damages given in a third country) shall be amended as follows.
(2) In subsection (1) for "judgments given under any provision of the law of that
country corresponding to that section" th ere shall be substituted "judgments of any
description specified in the Order which are given under any provision of the law of
that country relating to the recovery of sums paid or obtained pursuant to a judgment for
multiple damages within the meaning of section 5(3) above, whether or not that
provision corresponds to section 6 above".
(3) After subsection (1) that shall be inserted —
"(1A) Such an Order in Council may, as respects judgments to which it relates —
(a) make different provisions for different descriptions of judgment; and
(b) impose conditions or restrictions on the enforcement of judgments of any
description.". Jurisdiction, and recognition and enforcement of judgments, as between
United Kingdom and certain territories Application of provisions corresponding to
1968 Convention in relation to certain territories
39.—(1) Her Majesty may by Order in Council make provision corresponding to
the provision made by the 1968 Convention as between the Contracting States to that
Convention, with such modifications as appear to Her Majesty to be appropriate, for
regulating, as between the United Kingdom and any of the territories mentioned in
subsection (2), the jurisdiction of courts and the recognition and enforcement of
judgments.
(2) The territories referred to in subsection (1) are —
(a) the Isle of Man;
(b) any of the Channel Islands;
(c) any colony
(3) An Order in Council under this secti on may contain such supplementary and
incidental provisions as appear to Her Majesty to be necessary or expedient, including
in particular provisions corresponding to or applying any of the provisions of Part I
with such modifications as may be specified in the Order [Order made in respect of
Gibraltar, SI 1997/2602].
(4) Any Order in Council under this section shall be subject to annulment in
pursuance of a resolution of either House of Parliament. Part V. Supplementary and
General Provisions Domicile Domicile of individuals
41.—(1) Subject to Article 52 (which contains provisions for determining whether
a party is domiciled in a Contracting State), the following provisions of this section
determine, for the purposes of the 1968 Convention, the Lugano Conventions and this
Act, whether an individual is domiciled in the United Kingdom or in a particular part of,
or place in, the United Kingdom or in a state other than a Contracting State.
(2) An individual is domiciled in the United Kingdom if and only if—
(a) he is resident in the United Kingdom; and
connection with the United Kingdom.
(3) Subject to subsection (5), an individual is domiciled in a particular part of the
United Kingdom if and only if—
(a) he is resident in that part; and
connection with that part.
(4) An individual is domiciled in a particular place in the United Kingdom if and
only if he—
(a) is domiciled in the part of the United Kingdom in which the place is situated;
and
(b) is resident in that place.
(5) An individual who is domiciled in the United Kingdom but in whose case the
requirements of subsection (3)(b) are not satisfied to any particular part of the United
Kingdom shall be treated as domiciled in the part of the United Kingdom in which he is
resident.
(6) In the case of an individual who —
(a) is resident in the United Kingdom, or in a particular part of the United
Kingdom; and
(b) has been so resident for the last three months or more,
the requirements of subsection (2)(b) or, as the case may be, su bsection (3)(b)
shall be presumed to be fulfilled unless the contrary is proved.
(7) An individual is domiciled in a state other than a Contracting State if and only
if—
(a) he is resident in that state; and
connection with that state. Domicile and seat of corporation or association
42.—(1) For the purpose of this Act the seat of a corporation or association (as
determined by this section) shall be treated as its domicile.
(2) The following provisions of this section determine where a corporation or
association has its seat—
(a) for the purpose of Article 53 (which for the purposes of the 1968 Convention
or, as the case may be, the Lugano Convention equates the domicile of such a body with
its seat); and
(b) for the purposes of this Act other than the provisions mentioned in section
43(1)(b) and (c).
(3) A corporation or association has its seat in the Unite d Kingdom if and only if—
(a) it was incorporated or formed under law of a part of the United Kingdom and
has its registered office or some other official address in the United Kingdom; or
(b) its central management and control is exercised in the United Kingdom.
(4) A corporation or association has its seat in a particular part of the United
Kingdom if and only if it has its seat in the United Kingdom and —
(a) it has its registered office or some other official address in that part; or
(b) its central management and control is exercised in that part; or
(c) it has a place of business in that part.
(5) A corporation or association has its seat in a particular place in the United
Kingdom if and only if it has its seat in the part of the United Kingdom in which that
place is situated and—
(a) it has its registered office or some other official address in that place; or
(b) its central management and control is exercised in that place; or
(c) it has a place of business in that place.
(6) Subject to subsection (7), a corporation or association has its seat in a state
other than the United Kingdom if and only if —
(a) it was incorporated or formed under the law of that state and has its registered
office or some other official address there; or
(b) its central management and control is exercised in that state.
(7) A corporation or association shall not be regarded as having its seat in a
Contracting State other than the United Kingdom if it is shown that the courts of that state
would not regard it as having its seat there.
"business" includes any activity carried on by a corporation or association, and
"place of business" shall be construed accordingly;
"official address", in relation to a corporation or association, means an address
which it is required by law to register, notify or maintain for the purpose of receiving
notices or other communications. Seat of corporation or association for purposes of
Article 16(2) and related provisions
43.—(1) The following provisions of this section determine where a corporation
or association has it seat for the purposes of —
(a) Article 16(2) [of the 1968 Convention or of the Lugano Convention] (which
confers exclusive jurisdiction over proceedings relating to the formation or dissolution
of such bodies, or to the decisions of their organs);
(b) [rules 4 and 11(b)] in Schedule 4; and
(c) [rules 2(1) and 5(1)(b) in Schedule 8.
(2) A corporation or association has its seat in the United Kingdom if and only if —
(a) it was incorporated or formed under the law of a part of the United Kingdom;
or
(3) A corporation or association has its seat in a particular part of the United
Kingdom if and only if it has its seat in the United Kingdom and —
(a) subject to subsection (5), it was incorporated or formed under the law of that
part; or
(b) being incorporated or formed under the law of a state other than the United
Kingdom, its central management and control is exercised in that part.
(4) A corporation or association has its se at in a particular place in Scotland if and
only if it has its seat in Scotland and—
(a) it has its registered office or some other official address in that place; or
(b) it has no registered office or other official address in Scotland, but its centra l
management and control is exercised in that place.
(5) A corporation or association incorporated or formed under —
(a) an enactment forming part of the law of more than one part of the United
Kingdom; or
(b) an instrument having effect in the domestic law of more than one part of the
United Kingdom,
shall, if it has a registered office, be taken to have its seat in the part of the United
Kingdom in which that office is situated, and not in any other part of th e United
Kingdom.
(6) Subject to subsection (7), a corporation or association has its seat in a
Contracting State other than the United Kingdom if and only if —
(a) it was incorporated or formed under the law of that state; or
(7) A corporation or association shall not be regarded as having its seat in a
Contracting State other than the United Kingdom if —
(a) it has its seat in the United Kingdom by virtue of subsection (2)(a); or
(b) it is shown that the courts of that other state would not regard it for the
purposes of Article 16(2) as having its seat there.
(8) In this section "official address" has the same meaning as in section 42.
Persons deemed to be domiciled in the United King dom for certain purposes
44.—(1) This section applies to—
(a) proceedings within Section 3 of Title II of the 1968 Convention or Section 3 of
Title II of the Lugano Convention (insurance contracts), and
(b) proceedings within Section 4 of Title II of either of those Conventions
(consumer contracts).
(2) A person who, for the purposes of proceedings to which this section applies
arising out of the operations of a breach, agency or other establishment in the Un ited
Kingdom, is deemed for the purposes of the 1968 Convention or, as the case may be, the
Lugano Convention to be domiciled in the United Kingdom by virtue of —
(a) Article 8, section paragraph (insurers), or
(b) Article 13, second paragraph (suppliers of goods, services or credit to
consumers),
shall, for the purposes of those proceedings, be treated for the purposes of this Act
as so domiciled and as domiciled in the part of the United Kingdom in which the br anch,
agency or establishment in question is situated. Domicile of trusts
45.—(1) The following provisions of this section determine, for the purposes of
the 1968 Convention the Lugano Convention and this Act, where a trust is domiciled.
(2) A trust is domiciled in the United Kingdom if and only if it is by virtue of
subsection (3) domiciled in a part of the United Kingdom.
(3) A trust is domiciled in a part of the United Kingdom if and only if the system of
law of that part is the system of law with wh ich the trust has its closest and most real
connection. Domicile and seat of the Crown
46.—(1) For the purposes of this Act the seat of the Crown (as determined by this
section) shall be treated as its domicile.
(2) The following provisions of this section determine where the Crown has its
seat—
(a) for the purposes of the 1968 Convention and the Lugano Convention (in each of
which Article 53 equates the domicile of a legal person with its seat); and
(b) for the purposes of this Act.
(3) Subject to the provisions of any Order in Council for the time being in force
under subsection
(4)—
(a) the Crown in right of Her Majesty’s government in the United Kingdom has its
seat in every part of, and every place in, the United Kingdom; and
(b) the Crown in right of Her Majesty’s government in Northern Ireland has its seat
in, and every place in, Northern Ireland.
(4) Her Majesty may by Order in Council provide that, in the case of proceedings
of any specified description against the Crown in right of Her Majesty’s government in
the United Kingdom, the Crown shall be treated for the purposes of the 1968 Convention
the Lugano Convention and this Act as having its seat in, and in every place in, a
specified part of the United Kingdom and not i n any other part of the United Kingdom.
(5) An Order in Council under subsection (4) may frame a description of
proceedings in any way, and in particular may do so by reference to the government
department or officer of the Crown against which or against w hom they fall to be
instituted.
(6) Any Order in Council made under this section shall be subject to annulment in
pursuance of a resolution of either House of Parliament.
(7) Nothing in this section applies to the Crown otherwise than in right of Her
Majesty’s government in the United Kingdom or Her Majesty’s government in Northern
Ireland. Other supplementary provisions Modifications occasioned by decisions of
European Court as to the meaning or effect of the Brussels Conventions
47.—(1) Her Majesty may by Order in Council —
(a) make such provision as Her Majesty considers appropriate for the purpose of
bringing the law of any part of the United Kingdom into accord with the Brussels
Conventions as affected by any pr inciple laid down by the European Court in
connection with the Brussels Conventions or by any decision of that court as to the
meaning or effect of any provision of the Brussels Conventions; or
(b) make such modifications of Schedule 4 or Schedule 8, or of any other statutory
provision affected by any provision of either of those Schedules, as Her Majesty
considers appropriate in view of any principle with Title II of the 1968 Convention or
of any decision of that court as to the meaning or effect of any pr ovision of that Title.
(2) The provision which may be made by virtue of paragraph (a) of subsection (1)
includes such modifications of this Act or any other statutory provision, whenever
passed or made, as Her Majesty considers appropriate for the purpos e mentioned in that
paragraph.
(3) The modifications which may be made by virtue of paragraph (b) of subsection
(1) include modifications designed to produce divergence between any provision of
Schedule 4 or Schedule 8 and a corresponding provision of Ti tle II of the 1968
Convention as affected by any such principle as is mentioned in that paragraph.
(4) An Order in Council under this section shall not be made unless a draft of the
Order has been laid before Parliament and approved by a resolution of ea ch House of
Parliament. Matters for which rules of court may provide
48.—(1) Rules of court may make provision for regulating the procedure to be
followed in any court in connection with any provision of this Act [the Lugano
Convention or the Brussels Convention] [or the Regulation].
(2) Rules of court may make provision as to the manner in which and to conditions
subject to which a certificate or judgment registered in any court under any provision of
this Act [or the Regulation] may be enforced, including provision for enabling the court
or, in Northern Ireland, the Enforcement of Judgments Office, subject to any conditions
specified in the rules, to give directions about such matters.
(3) Without prejudice to the generality of subsections (1) and (2), the power to
make rules of court for magistrates’ courts, and in Northern Ireland the power to make
Judgment Enforcement Rules, shall include power to make such provision as the rule -
making authority considers necessary or expedient for the purposes of the provisions of
the Lugano Convention, the Brussels Conventions, the Regulation and this Act relating to
maintenance proceedings and the recognition and enforcement of maintenance orders,
and shall in particular include power to make provision as to any of the following
matters—
(a) authorising the service in another Contracting State or Regulation State of
process issued by or for the purposes of a magistrates’ court and the service and
execution in England and Wales or Northern Ireland of process issued in another
Contracting State or Regulation State;
(b) requesting courts in other parts of the United Kingdom or in other Contracting
States or Regulation States to take evidence there for the purpose s of proceedings in
England and Wales or Northern Ireland;
(c) the taking of evidence in England and Wales or Northern Ireland in response to
similar requests received from such courts;
(d) the circumstances in which and the conditions subject to which any powers
conferred under paragraphs (a) to (c) are to be exercised;
(e) the admission in evidence, subject to such conditions as may be prescribed in
the rules, of statements contained in documents purporting to be made or authenticated
by a court in another part of the United Kingdom or in another Contracting State [or
Regulation States], or by a judge or official of such a court, which purport —
(i) to set out or summarise evidence give n in proceedings in that court or to be
documents received in evidence in such proceedings or copies of such documents; or
(ii) to set out or summarise evidence taken for the purposes of proceedings in
England and Wales or Northern Ireland, whether or no t in response to any such request
as is mentioned in paragraph (b); or
(iii) to record information relating to the payments made under an order of that
court;
(f) the circumstances and manner in which a magistrates’ court may or must vary or
revoke a maintenance order registered in that court, cancel the registration of, or refrain
from enforcing, such an order to transmit such an order for enforcement in another part
of the United Kingdom;
(g) the cases and manner in which courts in other par ts of the United Kingdom or in
other Contracting States or Regulation States are to be informed of orders made, or
other things done, by or for the purposes of a magistrates’ court;
(h) the circumstances and manner in which a magistrates’ court may communi cate
for other purposes with such courts;
(i) the giving of notice of such matters as may be prescribed in the rules to such
persons as may be so prescribed and the manner in which such notice is to be given.
(4) Nothing in this section shall be taken as d erogating from the generality of any
power to make rules of court conferred by any other enactment. Savings for powers to
stay, sist, strike out or dismiss proceedings
49. Nothing in this Act shall prevent any court in the United Kingdom from staying,
sisting, striking out or dismissing any proceedings before it, on the ground of forum non
conveniens or otherwise, where to do so is not inconsistent with the 1968 Convention
or as the case may be the Lugano Convention. General Interpretation: general
50. In this Act, unless the context otherwise requires —
"the Accession Convention", "the 1982 Accession Convention" and "the 1989
Accession Convention" and "the 1996 Accession Convention" have the meaning given
by section 1(1);
"Article" and references to sub-divisions of numbered Articles are to be construed
in accordance with section 1(2)(b);
"association" means an unincorporated body of persons;
...
"Brussels Contracting State" has the meaning given by section 1(3);
"the Brussels Conventions" has the meaning given by section 1(1);
"Contracting State" has the meaning given by section 1(3);
"the 1968 Convention" has the meaning given by section 1(1), and references to
that Convention and to provisions of it are to be construed in acco rdance with section
1(2)(a);
"corporation" means a body corporate, and includes a partnership subsisting under
the law of Scotland;
"court" without more, includes a tribunal;
"court of law", in relation to the United Kingdom, means any of the following
courts, namely—
(a) the House of Lords, [(a) the Supreme Court,]
(b) in England and Wales or Northern Ireland, the Court of Appeal, the High Court,
the Crown Court, a county court and a magistrates’ court,
(c) in Scotland, the Court of Session and a she riff court;
"the Crown" is to be construed in accordance with section 5 1(2);
"enactment" includes an enactment comprised in Northern Ireland legislation;
"judgment" subject to sections 15(1) and 18(2) and to paragraph 1 of Schedules 6
and 7, means any judgment or order (by whatever name called) given or made by a court
in any civil proceedings;
"Lugano Contracting State" has the meaning given by section 1(3);
"the Lugano Convention" has the meaning given by section 1(1);
"magistrates court", in relation to Northern Ireland, means a court of summary
jurisdiction;
"modifications" includes additions, omissions and alterations;
"overseas country" means any country or territory outside the United Kingdom;
"part of the United Kingdom" means England and Wales, Scotland or Northern
Ireland;
"the 1971 Protocol" has the meaning given by section 1(1), references to that
Protocol and to provisions of it are to be construed in accordance with section 1(2)(a);
"the Regulation" has the meaning given by section 1(1);
"Regulation State" has the meaning given by section 1(3);
"rules of court", in relation to any court, means rules, orders or regulations made
by the authority having power to make rules, orders or regulations regulating the
procedure of that court, and includes—
(a) in Scotland, Acts of Sederunt;
(b) in Northern Ireland, Judgment Enforcement Rules;
"statutory provision" means any provisions contained in an Act, or in any Northern
Ireland legislation, or in—
(a) subordinate legislation (as defined in section 21(1) of the Interpretation Act
1978); or
(b) any instrument of a legislative character made under any Northern Ireland
legislation;
"tribunal"—
(a) means a tribunal of any description other than a court of law;
(b) in relation to an overseas country, includes, as regards matters relating to
maintenance within the meaning of the 1968 Convention, any authority ha ving power to
give, enforce, vary or revoke a maintenance order. Application to Crown
51.—(1) This Act binds the Crown.
(2) In this section and elsewhere in this Act references to the Crown do not include
references to Her Majesty in Her private capacity or to Her Majesty in right of Her
Duchy of Lancaster or to the Duke of Cornwall. Extent
52.—(1) This Act extends to Northern Ireland.
(2) Without prejudice to the power conferred by section 29, Her Majesty may by
Order in Council direct that all or any of the provisions of this Act apart from that
section shall extend, subject to such modifications as may be specified in the Order, to
any of the following territories, that is to say —
(c) any colony; Commencement, transitional provisions and savings
53.—(1) This Act shall come into force in accordance with the provisions of Part I
of Schedule 13.
(2) The transitional provisions and savings contained i n Part II of that Schedule
shall have effect in relation to the commencement of the provisions of this Act
mentioned in that Part. Repeals
54. The enactments mentioned in Schedule 14 are hereby repealed to the extent
specified in the third column of that Schedule. Short title
55. This Act may be cited as the Civil Jurisdiction and Judgments Act 1982.
Schedule 1 (Section 2(2)). Text of 1968 Convention, as Amended Convention
on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters Title VII. Relationship to Other Conventions Article 55
Subject to the provisions of the second subparagraph of Article 54, and of Article
56, this Convention shall, for the States which are parties to it, supersede the following
conventions concluded between two or more of them—
the Convention between Belgium and France on jurisdiction and the validity and
enforcement of judgments, arbitration awards and authentic instruments, signed at Paris
on 8th July 1899,
the Convention between Belgium and the Nether lands on jurisdiction, bankruptcy,
and the validity and enforcement of judgments, arbitration awards and authentic
instruments, signed at Brussels on 28th March 1925,
the Convention between France and Italy on the enforcement of judgments in civil
and commercial matters, signed at Rome on 3rd June 1930,
the Convention between the United Kingdom and the French Republic providing
for the reciprocal enforcement of judgments in civil and commercial matters, with
Protocol, signed at Paris on 18th January 1934,
the Convention between the United Kingdom and the Kingdom of Belgium
providing for the reciprocal enforcement of judgments in civil and commercial matters,
with Protocol, signed at Brussels on 2nd May 1934,
the Convention between Germany and Italy on the recognition and enforcement of
judgments in civil and commercial matters, signed at Rome on 9th March 1936,
the Convention between the Kingdom of Belgium and Austria on the reciprocal
recognition and enforcement of judgments and authentic instruments relating to
maintenance obligations, signed at Vienna on 25th October 1957,]
the Convention between the Federal Republic of Germany and the Kingdom of
Belgium on the mutual recognition and enforcement of judgments, arbitration awards
and authentic instruments in civil and commercial matters, signed at Bonn on 30th June
1958,
the Convention between the Kingdom of the Netherlands and the Italian Republic
on the recognition and enforcement of judgments in civil and commercial matters, signed
at Rome on 17th April 1959,
the Convention between the Federal Republic of Germany and Austria on the
reciprocal recognition and enforcement of judgments, settlements and authentic
instruments in civil and commercial matters, signed at Vienna on 6th June 1959,]
recognition and enforcement of judgments, arbitral awards and authentic instruments in
civil and commercial matters, signed at Vienna on 16th June 1959,]
the Convention between the United Kingdom and the Federal Republic of Germany
for the reciprocal recognition and enforcement of judgments in civil and commercial
matters, signed at Bonn on 14th July 1960,
the Convention between the Kingdom of Greece and the Federal Republic of
Germany for the reciprocal recognition and enforcement of judgments, settlements and
authentic instruments in civil and commercial matters, signed in Athens on 4th
November 1961,
the Convention between the Kingdom of Belgium and the Italian Republic on the
recognition and enforcement of judgments and other enforceable instruments in civil and
commercial matters, signed at Rome on 6th April 1962,
the Convention between the Kingdom of the Netherlands and the Federal Republic
of Germany on the mutual recognition and enforcement of judgments and other
enforceable instruments in civil and commercial matters, signed at The Hague on 30th
August 1962,
the Convention between the Kingdom of the Netherlands and Austria on the
reciprocal recognition and enforcement of judgments and authentic instruments in civil
and commercial matters, signed at The Hague on 6th February 1963,]
the Convention between France and Austria on the recognition and enforcement of
judgments and authentic instruments in civil and commercial matters, signed at Vienna
on 15th July 1966,]
the Convention between the United Kingdom and the Republic of Italy for the
reciprocal recognition and enforcement of judgments in civil and commercia l matters,
signed at Rome on 7th February 1964, with amending Protocol signed at Rome on 14th
July 1970,
the Convention between the United Kingdom and the Kingdom of the Netherlands
providing for the reciprocal recognition and enforcement of judgments in c ivil matters,
signed at The Hague on 17th November 1967,
the Convention between Spain and France on the recognition and enforcement of
judgment arbitration awards in civil and commercial matters, signed at Paris on 28th
May 1969,
the Convention between the United Kingdom and Austria providing for the
reciprocal recognition and enforcement of judgments in civil and commercial matters,
signed at Vienna on 14th July 1961, with amending Protocol signed at London on 6th
March 1970,]
the Convention between Luxemb ourg and Austria on the recognition and
enforcement of judgments and authentic instruments in civil and commercial matters,
signed at Luxembourg on 29th July 1971,]
the Convention between Italy and Austria on the recognition and enforcement of
judgments in civil and commercial matters, of judicial settlements and of authentic
instruments, signed at Rome on 16th November 1971,]
the Convention between Spain and Italy regarding legal aid and the recognition and
enforcement of judgments in civil and commercial matters, signed at Madrid on 22nd
May 1973,
the Convention between Finland, Iceland, Norway, Sweden and Denmark on the
recognition and enforcement of judgments in civil matters, signed at Copenhagen on 11th
October 1977,]
the Convention between Austria and Sweden on the recognition and enforcement of
judgments in civil matters, signed at Stockholm on 16th September 1982,]
the Convention between Spain and the Federal Republic of Germany on the
recognition and enforcement of judgments, settlements and enforceable authentic
instruments in civil and commercial matters, signed at Bonn on 14th November 1983,
the Convention between Austria and Spain on the recognition and enforcement of
judgments, settlements and enforceable authentic instruments in civil and commercial
matters, signed at Vienna on 17th February 1984,] and
the Convention between Finland and Austria on the recognition and enforcement of
judgments in civil matters, signed at Vienna on 17th November 1986 ,]
and, in so far as it is in force—
the Treaty between Belgium, the Netherlands and Luxembourg on jurisdiction,
bankruptcy, and the validity and enforcement of judgments, arbitration awards and
authentic instruments, signed at Brussels on 24th November 1961. Article 56
The Treaty and the conventions referred to in Article 55 shall continue to have
effect in relation to matters to which this Convention does not apply.
They shall continue to have effect in respect of judgments given and documents
formally drawn up or registered as authentic instruments before the entry into force of
this Convention. Article 57
1. This Convention shall not affect any conventions to which the Contracting States
are or will be parties and which in relation to particular matters, govern jurisdiction or
the recognition or enforcement of judgments.
2. With a view to its uniform interpretation, paragraph 1 shall be applied in the
following manner—
(a) this Convention shall not prevent a court of a Contracting State which is a party
to a convention on a particular matter from assuming jurisdiction in accordance with
that Convention, even where the defendant is domiciled in another Contracting State
which is not a party to that Convention. The court hearing the action shall, in any event,
apply Article 20 of this Convention;
(b) judgments given in a Contracting State by a court in the exercise of jurisdiction
provided for in a convention on a particul ar matter shall be recognized and enforced in
the other Contracting State in accordance with this Convention.
Where a convention on a particular matter to which both the State of origin and the
State addressed are parties lays down conditions for the recognition or enforcement of
judgments, those conditions shall apply. In any event, the provisions of this Convention
which concern the procedure for recognition and enforcement of judgments may be
applied.
3. This Convention shall not affect the application of provisions which, in relation
to particular matters, govern jurisdiction or the recognition or enforcement of judgments
and which are or will be contained in acts of the institutions of the European
Communities or in national laws harmonized in implementation of such acts. Article 58
Until such time as the Convention on jurisdiction and the enforcement of judgments
in civil and commercial matters, signed at Lugano on 16th September 1988, takes effect
with regard to France and the Swiss Confederation, this Convention shall not affect the
rights granted to Swiss nationals by the Convention between France and the Swiss
Confederation on jurisdiction and enforcement of judgments in civil matters, signed in
Paris on 15th June 1869. Article 59
This Convention shall not prevent a Contracting State from assuming, in a
third State not to recognize judgments given in other Contracting States against
specified in the second paragraph of Article 3.
However, a Contracting State may not as sume an obligation towards a third State
not to recognize a judgment given in another Contracting State by a court basing its
jurisdiction on the purchase within that State of property belonging to the defendant, or
the seizure by the plaintiff of property situated there—
if the action is brought to assert or declare proprietary or possessory rights in that
if the property constitutes the security for a debt which is the subject-matter of the
action.
Schedule 3C (Section 1(3) of the 1991 Act). The Lugano Convention
(Extracts) Title VII. Relationship to the Brussels Convention and to Other
Conventions Article 54B
1. This Convention shall not prejudice the application by the Member States of the
European Communities of the Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968
and of the Protocol on interpretation of that Convention by the Court of Justice, signed at
Luxembourg on 3 June 1971, as amended by the Conventions of Accession to the said
Convention and the said Protocol by the States acceding to the European Communities,
all of these Conventions and the Protocol being hereinafter referred to as the "Brussels
Convention".
2. However, this Convention shall in any event be applied:
(a) in matters of jurisdiction, where the defendant is domiciled in the territory of a
Contracting State which is not a member of the European Communities, or where
Article 16 or 17 of this Convention confers a jurisdiction on the courts of such a
Contracting State;
(b) in relation to a lis pendens or to related actions as provided for in Articles 21
and 22, when proceedings are instituted in a Contracting State which is not a member of
the European Communities and in a Contracting State which is a member of the
European Communities;
(c) in matters of recognition and enforcement, where ei ther the State of origin or
the State addressed is not a member of the European Communities.
3. In addition to the grounds provided for in Title III recognition or enforcement
may be refused if the ground of jurisdiction on which the judgment has been base d
differs from that resulting from this Convention and recognition or enforcement is sought
against a party who is domiciled in a Contracting State which is not a member of the
European Communities, unless the judgment may otherwise be recognised or enforc ed
under any rule of law in the State addressed. Article 55
Subject to the provisions of the second paragraph of Article 54 and of Article 56,
this Convention shall, for the States which are parties to it, supersede the following
conventions concluded between two or more of them:
the Convention between the Swiss Confederation and France on jurisdiction and
enforcement of judgments in civil matters, signed at Paris on 15 June 1869,
the Treaty between the Swiss Confederation and Spain on the mutual enforcemen t
of judgments in civil or commercial matters, signed at Madrid on 19 November 1896,
the Convention between the Swiss Confederation and the German Reich on the
recognition and enforcement of judgments and arbitration awards, signed at Berne on 2
November 1929,
the Convention between Denmark, Finland, Iceland, Norway and Sweden on the
recognition and enforcement of judgments, signed at Copenhagen on 16 March 1932,
the Convention between the Swiss Confederation and Italy on the recognition and
enforcement of judgments, signed at Rome on 3 January 1933,
the Convention between Sweden and the Swiss Confederation on the recognition
and enforcement of judgments and arbitral awards, signed at Stockholm on 15 January
1936,
recognition and enforcement of judgments and authentic instruments relating to
maintenance obligations, signed at Vienna on 25 October 1957,
the Convention between the Swiss Confederation and Belgium on the recognition
and enforcement of judgments and arbitration awards, signed at Berne on 29 April
1959,
the Convention between the Federal Republic of Germany and Austria on the
reciprocal recognition and enforcement of judgments, settlements and authentic
instruments in civil and commercial matters, signed at Vienna on 6 June 1959,
recognition and enforcement of judgments , arbitral awards and authentic instruments in
civil and commercial matters, signed at Vienna on 16 June 1959,
the Convention between Austria and the Swiss Confederation on the recognition
and enforcement of judgments, signed at Berne on 16 December 1960,
the Convention between Norway and the United Kingdom providing for the
reciprocal recognition and enforcement of judgments in civil matters, signed at London
on 12 June 1961,
the Convention between Poland and Austria on Bilateral Relations in Civil Matters
and on Documents signed at Vienna on 11 December 1963,
the Convention between Poland and France on Applicable Law, Jurisdiction and
the Enforcement of Judgments in the Field of Personal and Family Law, signed at
Warsaw on 5 April 1967,
the Convention between the United Kingdom and Austria providing for the
reciprocal recognition and enforcement of judgments in civil and commercial matters,
signed at Vienna on 14 July 1961, with amending Protocol signed at London on 6 March
1970,
the Convention between the Kingdom of the Netherlands and Austria on the
reciprocal recognition and enforcement of judgments and authentic instruments in civil
and commercial matters, signed at The Hague on 6 February 1963,
the Convention between France and Austria on the recognition and enforcement of
judgments and authentic instruments in civil and commercial matters, signed at Vienna
on 15 July 1966,
the Convention between Luxembourg and Austria on the recognition and
enforcement of judgments and authentic instruments in civil and commercial matters,
signed at Luxembourg on 29 July 1971,
the Convention between Italy and Austria on the recognition and enforcement of
judgments in civil and commercial matters, of judicial sett lements and of authentic
instruments, signed at Rome on 16 November 1971,
the Convention between Norway and the Federal Republic of Germany on the
recognition and enforcement of judgments and enforceable documents, in civil and
commercial matters, signed at Oslo on 17 June 1977,
the Convention between Denmark, Finland, Iceland, Norway and Sweden on the
recognition and enforcement of judgments in civil matters, signed at Copenhagen on 11
October 1977,
the Convention between Poland and Greece on Mutual Assist ance in Civil and
Criminal Matters, signed at Athens on 24 October 1979,
the Convention between Austria and Sweden on the recognition and enforcement of
judgments in civil matters, signed at Stockholm on 16 September 1982,
the Convention between Austria and Spain on the recognition and enforcement of
judgments, settlements and enforceable authentic instruments in civil and commercial
matters, signed at Vienna on 17 February 1984,
the Convention between Norway and Austria on the recognition and enforcement of
judgments in civil matters, signed at Vienna on 21 May 1984,
the Convention between Finland and Austria on the recognition and enforcement of
judgments in civil matters, signed at Vienna on 17 November 1986, and
the Convention between Poland and Italy on Mutual Assistance and the
Recognition and Enforcement of Judgments in Civil Matters, signed at Warsaw on 28
April 1989. Article 56
The Treaty and the conventions referred to in Article 55 shall continue to have
effect in relation to matters to which this Convention does not apply.
They shall continue to have effect in respect of judgments given and documents
this Convention. Article 57
1. This Convention shall not affect any conventions to which the Contracting States
are or will be parties and which, in relation to particular matters, govern jurisdiction or
the recognition or enforcement of judgments.
2. This Convention shall not prevent a court of a Contracting State which is party
to a convention referred to in the first paragraph from assuming jurisdiction in
accordance with that convention, even where the defendant is domiciled in a
Contracting State which is not a party to that convention. The court hearing the action
shall, in any event, apply Article 20 of this Convention.
3. Judgments given in a Contracting State by a court in the exercise of jurisdiction
provided for in a convention referred to in the first paragraph shall be recognised and
enforced in the other Contracting States in accordance with Title III of this Convention.
4. In addition to the grounds provided for in Title III, recognition or enforcement
may be refused if the State addressed is not a contracti ng party to a convention referred
to in the first paragraph and the person against whom recognition or enforcement is
sought is domiciled in that State, unless the judgment may otherwise be recognised or
enforced under any rule of law in the State addresse d.
5. Where a convention referred to in the first paragraph to which both the State of
origin and the State addressed are parties lays down conditions for the recognition or
enforcement of judgments, those conditions shall apply. In any event, the provisi ons of
this Convention which concern the procedures for recognition and enforcement of
judgments may be applied. Article 58
[None] Article 59
This Convention shall not prevent a Contracting State from assuming, in a
third State not to recognise judgments given in other Contracting States against
specified in the second paragraph of Article 3.
However, a Contracting State may not assume an obligation towards a third State
not to recognise a judgment given in another Contracting State by a court basing its
jurisdiction on the presence within that State of property belonging to the defendant, or
the seizure by the plaintiff of property situated there:
if the action is brought to assert or declare proprie tary or possessory rights in that
if the property constitutes the security for a debt which is the subject -matter of the
action. Title VIII. Final Provisions Article 60
The following may be parties to this Convention:
(a) States which, at the time of the opening of this Convention for signature, are
members of the European Communities or of the European Free Trade Association;
(b) States which, after the opening of this Convention for signature, become
members of the European Communities or of the European Free Trade Association;
(c) States invited to accede in accordance with Article 62(1)(b). Article 62
1. After entering into force this Convention shall be open to accession by:
(a) the States referred to in Article 60(b);
(b) other States which have been invited to accede upon a request made by one of
the Contracting States to the depositary State. Th e depositary State shall invite the State
concerned to accede only if, after having communicated the contents of the
communications that this State intends to make in accordance with Article 63, it has
obtained the unanimous agreement of the signatory Stat es and the Contracting States
referred to in Article 60(a) and (b).
2. If an acceding State wishes to furnish details for the purposes of Protocol No. 1,
negotiations shall be entered into to that end. A negotiating conference shall be
convened by the Swiss Federal Council.
3. In respect of an acceding State, the Convention shall take effect on the first day
of the third month following the deposit of its instrument of accession.
4. However, in respect of an acceding State referred to in paragraph 1(a) or ( b),
the Convention shall take effect only in relations between the acceding State and the
Contracting States which have not made any objections to the accession before the first
day of the third month following the deposit of the instrument of accession. Article 63
Each acceding State shall, when depositing its instrument of accession,
communicate the information required for the application of Articles 3, 32, 37, 40, 41
and 55 of this Convention and furnish if need be, the details prescribed during the
negotiations for the purposes of Protocol No.1. Contracts (Applicable Law) Act 1990
(1990 c. 36)
(The text set out is as amended by
(i) SI 1994/1900 implementing the Funchal Convention on the accession of
Portugal and Spain (in force as from 1 December 1997)
(ii) SI 2000/1825 implementing the 1996 Accession Convention on the accession
of Austria, Finland and Sweden [not in force 1 September 2000]. The provisions not
then in force are indicated [ ]).
An Act to make provision as to the law applicable to contractual obligations in the
case of conflict of laws.
[26th July 1990] Meaning of “the Conventions”
1. In this Act—
(a) "the Rome Convention" means the Convention on the law applicable to
contractual obligations opened for signature in Rome on 19th June 1980 and signed by
the United Kingdom on 7th December 1981;
(b) "the Luxembourg Convention" means the Convention on the accession of the
Hellenic Republic to the Rome Convention signed by the United Kingdom in
Luxembourg on 10th April 1984; and
(c) "the Brussels Protocol" means the first Protocol on the interpretation of the
Rome Convention by the European Court signed by the United Kingdom in Brussels on
19th December 1988;
(d) "the Funchal Convention" means the Convention on the accession of the
Kingdom of Spain and the Portuguese Republic to the Rome Convention and the
Brussels Protocol, with adjustments made to the Rome Convention by the Luxembourg
Convention, signed by the United Kingdom in Funchal on 18th May 1992;
[(e) "the 1996 Accession Convention" means the Convention on the accession of
the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the
Rome Convention and the Brussels Protocol, with the adjustments made to the Rome
Convention by the Luxembourg Convention and the Funchal Convention, signed by the
United Kingdom in Brussels on 29 November 1996;".]
and these Conventions and this Protocol are together referred to as "the
Conventions". Conventions to have force of law
2.—(1) Subject to subsections (2) and (3) below, the Conventions shall have the
force of law in the United Kingdom.
(1A) The internal law for the purposes of Article 1(3) of the Rome Convention is
whichever of the following are applicable, namely —
(a) the provisions of Schedule 3A to the Insurance Companies Act 1982 (law
applicable to certain contracts of insurance with insurance companies), and
(b) the provisions of Schedule 20 to the Friendly Societies Act 1992 as applied by
subsections (1)(a) and (2)(a) of section 101 of that Act (law applicable to certain
contracts of insurance with friendly societies).
(2) Articles 7(1) and 10(1 )(e) of the Rome Convention shall not have the force of
law in the United Kingdom.
(3) Notwithstanding Article 19(2) of the Rome Convention, the Conventions shall
apply in the case of conflicts between the laws of different parts of the United Kingdom.
(4) For ease of reference there are set out in Schedules 1, 2, 3, 3A [and 3B] to this
Act respectively the English texts of—
(a) the Rome Convention;
(b) the Luxembourg Convention;
(c) the Brussels Protocol;
(d) the Funchal Convention; and
[(e) the 1996 Accession Convention.] Interpretation of Conventions
3.—(1) Any question as to the meaning or effect of any provision of the
Conventions shall, if not referred to the European Court in accordance with the Brussels
Protocol, be determined in accordance with the principles laid down by, and any
relevant decision of, the European Court.
(2) Judicial notice shall be taken of any decision of, or expression of opinion by,
the European Court on any such question.
(3) Without prejudice to any practice of the courts as to the matters which may be
considered apart from this subsection —
(a) the report on the Rome Convention by Professor Mario Giuliano and Professor
Paul Lagarde which is reproduced in the Official Journal of the Communities of 31st
October 1980 may be considered in ascertaining the meaning or effect of any provision
of that Convention; and
(b) any report on the Brussels Protocol which is reproduced in the Official Journal
of the Communities may be considered in ascertaining the meaning or effect of any
provision of that Protocol. Revision of Conventions etc.
4.—(1) If at any time it appears to Her Majesty in Council that Her Majesty’s
Government in the United Kingdom—
(a) have agreed to a revision of any of the Conventions (including, in particular,
any revision connected with the accession to the Rome Convention of any state); or
(b) have given notification in accordance with Article 22(3) of the Rome
Convention that either or both of the provisions mentioned in section 2(2) above shall
have the force of law in the United Kingdom,
Her Majesty may by Order in Council make sure consequential modifications of
this Act or any other statutory provision, whenever passed or made , as Her Majesty
considers appropriate.
(2) An Order in Council under subsection (1) above shall not be made unless a
draft of the Order has been laid before Parliament and approved by a resolution of each
House.
(3) In subsection (1) above —
"modifications" includes additions, omissions and alterations;
"revision" means an omission from, addition to or alteration of any of the
Conventions and includes replacement of any of the Conventions to any extent by
another convention, protocol or other descriptio n of international agreement; and
"statutory provision" means any provision contained in an Act, or in any Northern
Ireland legislation, or in—
(a) subordinate legislation (as defined in section 21(1) of the Interpretation Act
1978); or
(b) any instrument of a legislative character made under any Northern Ireland
legislation. Consequential amendments
5. The enactments specified in Schedule 4 to this Act shall have effect subject to
the amendments specified in that Schedule. Application to Crown
6. This Act binds the Crown. Commencement
7. This Act shall come into force on such day as the Lord Chancellor and the Lord
Advocate may by order made by statutory instrument appoint; and di fferent days may be
appointed for different provisions or different purposes. Extent
8.—(1) This Act extends to Northern Ireland.
(2) Her Majesty may by Order in Council direct that all or any of the provisions of
this Act shall extend to any of the follow ing territories, namely—
(c) Gibraltar;
(d) the Sovereign Base Areas of Akrotiri and Dhekelia (that is to say, the areas
mentioned in section 2(1) of the Cyprus Act 1960).
(3) An Order in Council under subsection (2) above may modify this Act in its
application to any of the territories mentioned in that subsection and may contain such
supplementary provisions as Her Majesty considers appropriate; and in this subsection
"modify" shall be construed in accordance with section 4 above. Short title
9. This Act may be cited as the Contracts (Applicable Law) Act 1990. Schedule 1.
The Rome Convention
The High Contracting Parties to the Treaty establishing the European Economic
Community,
Anxious to continue in the field of private international law the work of unification
of law which has already been done within the Community, in particular in the field of
jurisdiction and enforcement of judgments,
Wishing to establish uniform rules concerning the law applicable to contractual
obligations,
Have agreed as follows: Title I. Scope of the Convention Article 1. Scope of the
Convention
1. The rules of this Convention shall apply to contractual obligations in any
situation involving a choice between the laws of different countries.
2. They shall not apply to:
(a) questions involving the status or legal capacity of natural persons, without
prejudice to Article 11;
(b) contractual obligations relating to:
wills and succession,
rights in property arising out of a matrimonial relationship,
rights and duties arising out of a family relationship, parentage, marriage or
affinity, including maintenance obligations in respect of children who are not legitimate;
(c) obligations arising under bills of exchange, cheques and promissory notes and
other negotiable instruments to the extent that the obligations under such other negotiable
instruments arise out of their negotiable character;
(d) arbitration agreements and agreements on the choice of court;
(e) questions governed by the law of companies and other bodies corporate or
unincorporate such as the creation, by registration or otherwise, legal capacity, internal
organisation or winding up of companies and other bodies corporate or unincorporate
and the personal liability of officers and members as such for the obligations of the
company or body,
(f) the question whether an agent is able to bind a principal, or an or gan to bind a
company or body corporate or unincorporate, to a third party;
(g) the constitution of trusts and the relationship between settlers, trustees and
beneficiaries;
(h) evidence and procedure, without prejudice to Article 14.
3. The rules of this Convention do not apply to contracts of insurance which cover
risks situated in the territories of the Member States of the European Economic
Community. In order to determine whether a risk is situated in these territories the court
shall apply its internal law.
4. The preceding paragraph does not apply to contracts of re -insurance. Article 2.
Application of law of non-contracting States
Any law specified by this Convention shall be applied whether or not it is the law
of a Contracting State. Title II. Uniform Rules Article 3. Freedom of choice
1. A contract shall be governed by the law chosen by the parties. The choice must
be express or demonstrated with reasonable certainty by the terms of the contract or the
circumstances of the case. By their choice the parties can select the law applicable to
the whole or a part only of the contract.
2. The parties may at any time agree to subject the contract to a law other than that
which previously governed it, whether as a result of an earlier choice under this Article
or of other provisions of this Convention. Any variation by the parties of the law to be
applied made after the conclusion of the contract shall not prejudice its for mal validity
under Article 9 or adversely affect the rights of third parties.
3. The fact that the parties have chosen a foreign law, whether or not accompanied
by the choice of a foreign tribunal, shall not, where all the other elements relevant to the
situation at the time of the choice are connected with one country only, prejudice the
application of rules of the law of that country which cannot be derogated from by
contract, hereinafter called "mandatory rules".
4. The existence and validity of the consent of the parties as to the choice of the
applicable law shall be determined in accordance with the provisions of Articles 8, 9
and 11. Article 4. Applicable law in the absence of choice
1. To the extent that the law applicable to the contract has not been chosen in
accordance with Article 3, the contract shall be governed by the law of the country with
which it is most closely connected. Nevertheless, a severable part of the contract which
has a closer connection with another country may by way of exception be governed by
the law of that other country.
2. Subject to the provisions of paragraph 5 of this Article, it shall be presumed that
the contract is most closely connected with the countr y where the party who is to effect
the performance which is characteristic of the contract has, at the time of conclusion of
the contract, his habitual residence, or, in the case of a body corporate or unincorporate,
its central administration. However, if the contract is entered into in the course of that
party’s trade or profession, that country shall be the country in which the principal place
of business is situated or, where under the terms of the contract the performance is to be
effected through a place of business other than the principal place of business, the
country in which that other place of business is situated.
3. Notwithstanding the provisions of paragraph 2 of this Article, to the extent that
the subject matter of the contract is a right in immovable property or a right to use
immovable property it shall be presumed that the contract is most closely connected
with the country where the immovable property is situated.
4. A contract for the carriage of goods shall not be subject to the presumption in
paragraph 2. In such a contract if the country in which, at the time the contract is
concluded, the carrier has his principal place of business is also the country in which
the place of loading or the place of discharge or th e principal place of business of the
consignor is situated. It shall be presumed that the contract is most closely connected
with that country. In applying this paragraph single voyage charter -parties and other
contracts the main purpose of which is the ca rriage of goods shall be treated as
contracts for the carriage of goods.
5. Paragraph 2 shall not apply if the characteristic performance cannot be
determined, and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it
appears from the circumstances as a whole that the contract is more closely connected
with another country. Article 5. Certain consumer contracts
1. This Article applies to a contract the object of which is the supply of goods or
services to a person ("the consumer") f or a purpose which can be regarded as being
outside his trade or profession, or a contract for the provision of credit for that object.
2. Notwithstanding the provisions of Article 3, a choice of law made by the parties
shall not have the result of depriving the consumer of the protection afforded to him by
the mandatory rules of the law of the country in which he has his habitual residence:
if in that country the conclusion of the contract was preceded by a specific
invitation addressed to him or by adver tising, and he had taken in that country all the
steps necessary on his part for the conclusion of the contract, or
if the other party or his agent received the consumer’s order in that country, or
if the contract is for the sale of goods and the consumer travelled from that country
to another country and there gave his order, provided that the consumer’s journey was
arranged by the seller for the purpose of inducing the consumer to buy.
3. Notwithstanding the provisions of Article 4, a contract to which this Article
applies shall, in the absence of choice in accordance with Article 3, be governed by the
law of the country in which the consumer has his habitual residence if it is entered into
in the circumstances described in paragraph 2 of this Article.
4. This Article shall not apply to:
(a) a contract of carriage;
(b) a contract for the supply of services where the services are to be supplied to
the consumer exclusively in a country other than that in which he has his habitual
residence.
5. Notwithstanding the provisions of paragraph 4, this Article shall apply to a
contract which, for an inclusive price, provides for a combination of travel and
accommodation. Article 6. Individual employment contracts
1. Notwithstanding the provisions of Article 3, in a contract of employment a
choice of law made by the parties shall not have the result of depriving the employee of
the protection afforded to him by the mandato ry rules of the law which would be
applicable under paragraph 2 in the absence of choice.
2. Notwithstanding the provisions of Article 4, a contract of employment shall, in
the absence of choice in accordance with Article 3, be governed:
(a) by the law of the country in which the employee habitually carries out his work
in performance of the contract, even if he is temporarily employed in another country; or
(b) if the employee does not habitually carry out his work in any one country, by
the law of the country in which the place of business through which he was engaged is
situated;
unless it appears from the circumstances as a whole that the contract is more
closely connected with another country, in which case the contract shall be govern ed by
the law of that country. Article 7. Mandatory rules
1. When applying under this Convention the law of a country, effect may be given
to the mandatory rules of the law of another country with which the situation has a close
connection, if and in so far as, under the law of the latter country, those rules must be
applied whatever the law applicable to the contract. In considering whether to give
effect to these mandatory rules, regard shall be had to their nature and purpose and to
the consequences of their application or non-application.
2. Nothing in this Convention shall restrict the application of the rules of the law of
the forum in a situation where they are mandatory irrespective of the law otherwise
applicable to the contract. Article 8. Material validity
1. The existence and validity of a contract, or of any term of a contract, shall be
determined by the law which would govern it under this Convention if the contract or
term were valid.
2. Nevertheless a party may rely upon the law of the country in which he has his
habitual residence to establish that he did not consent if it appears from the
circumstances that it would not be reasonable to determine the effect of his conduct in
accordance with the law specified in the preced ing paragraph. Article 9. Formal
validity
1. A contract concluded between persons who are in the same country is formally
valid if it satisfies the formal requirements of the law which govern it under this
Convention or of the law of the country where it is concluded.
2. A contract concluded between persons who are in different countries is formally
valid if it satisfies the formal requirements of the law which governs it under this
Convention or of the law of one of those countries.
3. Where a contract is concluded by an agent, the country in which the agent acts is
the relevant country for the purposes of paragraphs 1 and 2.
4. An act intended to have legal effect relating to an existing or contemplated
contract is formally valid if it satisfies the fo rmal requirements of the law which under
this Convention governs or would govern the contract or of the law of the country where
the act was done.
5. The provisions of the preceding paragraphs shall not apply to a contract to
which Article 5 applies, concluded in the circumstances described in paragraph 2 of
Article 5. The formal validity of such a contract is governed by the law of the country in
which the consumer has his habitual residence.
6. Notwithstanding paragraphs 1 to 4 of this Article, a contract the subject matter
of which is a right in immovable property or a right to use immovable property shall be
subject to the mandatory requirements of form of the law of the country where the
property is situated if by that law those requirements are imposed irrespective of the
country where the contract is concluded and irrespective of the law governing the
contract. Article 10. Scope of the applicable law
1. The law applicable to a contract by virtue of Artic les 3 to 6 and 12 of this
Convention shall govern in particular:
(a) interpretation;
(b) performance;
(c) within the limits of the powers conferred on the court by its procedural law, the
consequences of breach, including the assessment of damages in so far as it is governed
by rules of law;
(d) the various ways of extinguishing obligations, and prescription and limitation
of actions;
(e) the consequences of nullity of the contract.
2. In relation to the manner of performance and the steps to be taken in the event of
defective performance regard shall be had to the law of the country in which
performance takes place. Article 11. Incapacity
In a contract concluded between persons who are in the same country, a natural
person who would have capacity under the law of that country may invoke his
incapacity resulting from another law only if the other party to the contract was aware of
his incapacity at the time of the conclusion of the contract or was not aware thereof as a
result of negligence. Article 12. Voluntary assignment
1. The mutual obligations of assignor and assignee under a voluntary assignment of
a right against another person ("the debtor") shall be governed by the law which under
this Convention applies to the contract between the assignor and assignee.
2. The law governing the right to which the assignment relates shall determine its
assignability, the relationship between the as signee and the debtor, the conditions under
which the assignment can be invoked against the debtor and any question whether the
debtor’s obligations have been discharged. Article 13. Subrogation
1. Where a person ("the creditor") has a contractual claim up on another ("the
debtor"), and a third person has a duty to satisfy the creditor, or has in fact satisfied the
creditor in discharge of that duty, the law which governs the third person’s duty to
satisfy the creditor shall determine whether the third perso n is entitled to exercise
against the debtor the rights which the creditor had against the debtor under the law
governing their relationship and, if so, whether he may do so in full or only to a limited
extent.
2. The same rule applies where several person s are subject to the same contractual
claim and one of them has satisfied the creditor. Article 14. Burden of proof, etc.
1. The law governing the contract under this Convention applies to the extent that it
contains, in the law of contract, rules which raise presumptions of law or determine the
burden of proof.
2. A contract or an act intended to have legal effect may be proved by any mode of
proof recognised by the law of the forum or by any of the laws referred to in Article 9
under which that contract or act is formally valid, provided that such mode of proof can
be administered by the forum. Article 15. Exclusion of renvoi
The application of the law of any country specified by this Convention means the
application of the rules of law in force in that country other than its rules of private
international law. Article 16. “Ordre public”
The application of a rule of the law of any country specified by this Convention
may be refused only if such application is manifestly incompatible with the public
policy ("ordre public") of the forum. Article 17. No retrospective effect
This Convention shall apply in a Contracting State to contracts made after the date
on which this Convention has entered into force with respect to that State. Article 18.
Uniform interpretation
In the interpretation and application of the preceding uniform rules, regard shall be
had to their international character and to the desirability of achieving uniformity in
their interpretation and application. Article 19. States with more than one legal system
1. Where a State comprises several territorial units each of which has its own rules
of law in respect of contractual obligations, each terri torial unit shall be considered as a
country for the purposes of identifying the law applicable under this Convention.
2. A State within which different territorial units have their own rules of law in
respect of contractual obligations shall not be bound to apply this Convention to
conflicts solely between the laws of such units. Article 20. Precedence of Community
law
This Convention shall not affect the application of provisions which, in relation to
particular matters, lay down choice of law rules rela ting to contractual obligations and
which are or will be contained in acts of the institutions of the European Communities
or in national laws harmonised in implementation of such acts. Article 21. Relationship
with other conventions
This Convention shall not prejudice the application of international conventions to
which a Contracting State is, or becomes, a party. Article 22. Reservations
1. Any Contracting State may, at the time of signature, ratification, acceptance or
approval, reserve the right not to apply:
(a) the provisions of Article 7(1);
(b) the provisions of Article 10(1)(e).
[Deleted by the Funchal Convention ]*
3. Any Contracting State may at any time withdraw a reservation which it has
made; the reservation shall cease to have effect on the first day of the third calendar
month after notification of the withdrawal. Title III. Final Provisions Article 23
1. If, after the date on which this Convention has entered into force for a
Contracting State, that State wishes to adopt any new choice of law rule in regard to any
particular category of contract within the scope of this Convention, it shall communicate
its intention to the other signatory States through the Secretary -General of the Council of
the European Communities.
2. Any signatory State may, within six months from the date of the communication
made to the Secretary-General, request him to arrange consultations between signatory
States in order to reach agreement.
3. If no signatory State has requested consultations within this period or if within
two years following the communications made to the Secretary -General no agreement is
reached in the course of consultations, the Contracting State concerned may amend its
law in the manner indicated. The measures taken by that State shall be brought to the
knowledge of the other signatory States through the Secretary -General of the Council of
the European Communities. Article 24
1. If, after the date on which this Convention has entered i nto force with respect to
a Contracting State, that State wishes to become a party to a multilateral convention
whose principal aim or one of whose principal aims is to lay down rules of private
international law concerning any of the matters governed by t his Convention, the
procedure set out in Article 23 shall apply. However, the period of two years, referred
to in paragraph 3 of that Article, shall be reduced to one year.
2. The procedure referred to in the preceding paragraph need not be followed if a
Contracting State or one of the European Communities is already a party to the
multilateral convention, or if its object is to revise a convention to which the State
concerned is already a party, or if it is a convention concluded within the framework of
the Treaties establishing the European Communities. Article 25
If a Contracting State considers that the unification achieved by this Convention is
prejudiced by the conclusion of agreements not covered by Article 24(1), that State may
request the Secretary-General of the Council of the European Communities to arrange
consultations between the signatory States of this Convention. Article 26
Any Contracting State may request the revision of this Convention. In this event a
revision conference shall be convened by the President of the Council of the European
Communities. Article 27
[Deleted by the Funchal Convention ]* Article 28
1. This Convention shall be open from 19 June 1980 for signature by the States
party to the Treaty establishing the European Economic Community.
2. This Convention shall be subject to ratification, acceptance or approval by the
signatory States. The instruments of ratification, acceptance or approval shall be
deposited with the Secretary-General of the Council of the European Communities.
Article 29
1. This Convention shall enter into force on the first day of the third month
following the deposit of the seventh instrument of ratification, acceptance or approval.
2. This Convention shall enter into force for each signatory State ratifying,
accepting or approving at a later date on the first day of the third month following the
deposit of its instrument of ratification, acceptance or approval. Article 30
1. This Convention shall remain in force for 10 years from the date of its entry into
force in accordance with Article 29(1), even for States for which it enters into force at a
later date.
2. If there has been no denunciation it shall be renewed tacitly every fiv e years.
3. A Contracting State which wished to denounce shall, not less than six months
before the expiration of the period of 10 or five years, as the case may be, give notice to
the Secretary-General of the Council of the European Communities.*
4. The denunciation shall have effect only in relation to the State which has notified
it. The Convention will remain in force as between all other Contracting States. Article
31
The Secretary-General of the Council of the European Communities shall notify th e
States party to the Treaty establishing the European Economic Community of:
(a) the signatures;
(b) the deposit of each instrument of ratification, acceptance or approval;
(c) the date of entry into force of this Convention;
(d) communications made in pursuance of Articles 23, 24, 25, 26 and 30;**
(e) the reservations and withdrawals of reservations referred to in Article 22.
Article 32
The Protocol annexed to this Convention shall form an integral part thereof. Article
33
This Convention, drawn up in a single original in the Danish, Dutch, English,
French, German, Irish and Italian languages, these texts being equally authentic, shall be
deposited in the archives of the Secretariat of the Council of the European Communities .
The Secretary-General shall transmit a certified copy thereof to the Government of each
signatory State. Protocol***
The High Contracting Parties have agreed upon the following provision which
shall be annexed to the Convention:
Notwithstanding the provisions of the Convention, Denmark, Sweden and Finland
may retain national provisions concerning the law applicable to questions relating to the
carriage of goods by sea and may amend such provisions without following the
procedure provided for in Article 23 of the Convention of Rome. The national
provisions applicable in this respect are the following:
in Denmark, paragraphs 252 and 32 1(3) and (4) of the "Sølov" (maritime law);
in Sweden, Chapter 13, Article 2(1) and (2), and Chapter 14, Article 1(3), of
"sjölagen" (maritime law);
in Finland, Chapter 13, Article 2(1) and (2), and Chapter 14, Article 1(3) of
"merilaki"/"sjölagen" (maritime law). Schedule 2. The Luxembourg Convention
The Treaty of Accession of the Hellenic Republic. It contains no substantive
provisions. [Schedule 3. The Brussels Protocol*]
The High Contracting Parties to the Treaty establishing the European Economic
Community,
Having regard to the Joint Declaration annexed to the Convention on the law
applicable to contractual obligations, opened for signature in Rome on 19 June 1980,
Have decided to conclude a Protocol conferring jurisdiction on the Court of Justice
of the European Communities to interpret that Convention, and to this end have
designated as their Plenipotentiaries:
(Designation of plenipotentiaries)
Who, meeting within the Council of the European Communities, having exchanged
their full powers, found in good and due form,
Have agreed as follows: Article 1
The Court of Justice of the European Communities shall have jurisdiction to give
rulings on the interpretation of—
(a) the Convention on the law applicable to contractual obligations, opened for
signature in Rome on 19 June 1980, hereinafter referred to as "the Rome Convention";
(b) the Convention on accession to the Rome Convention by the States which have
become Members of the European Communities since the date on which it was opened
for signature;
(c) this Protocol. Article 2
Any of the courts referred to below may request the Court of Justice to give a
preliminary ruling on a question raised in a case pending before it and concerning
interpretation of the provisions contained in the instruments referred to in Article 1 if
that court considers that a decision on the question is necessary to enable it to give
judgment:
(a) —in Belgium:
la Cour de cassation (het Hof van Cassatie) and le Conseil d’Etat (de Raad van
State),
in Denmark: Højesteret,
in the
Federal
Republic of Germany: die obersten Gerichtschofe Bundes, ¨ in Greece:
in Spain: et Tribunal Supremo,
in France la Cour de cassation and le Conseil d’Etat,
in Ireland: the Supreme Court,
in Italy: la Corte suprema di cassazione and il consiglio di Stato,
in Luxembourg; la Cour Supérieure de Justice, when sitting as Cour de cassation. in
Austria: the Oberste Gerichtshof. the Verwaltungsgerichtshof and the
Verfassungsgerichtshof and]
in the Netherlands: de Hoge Raad.
in Portugal: o Supremo Tribunal de Justiça and o Supremo Tribunal
Admini strativo.
in Finland: korkein oikeus/högsta domstolen. korkein hallintooikeus/högsta
förvaltningsdomstolen. markkinatuomioi stuin/marknadsdomstolen and
tyotuomioi stuin/arbetsdomstolen.]
.Sweden: Högsta domstolen Regeringsrätten. Arbetsdomstolen and
Marknadsdomstolen.]
in the United Kingdom: the House of Lords and other courts from which no further
appeal is possible;
(b) the courts of the Contracting States when acting as appeal courts. Article 3
1. The competent authority of a Contracting State may request the Court of Justice
to give a ruling on a question of interpretation of the provisions contained in the
instruments referred to in Article 1 if judgments given by courts of that State conflict
with the interpretation given either by the Court of Justice or in a judgment of one of the
courts of another Contracting State referred to in Article 2. The provisions of this
paragraph shall apply only to judgments which have become res judicata.
2. The interpretation given by the Court of Justice in response to such a request
shall not affect the judgments which gave rise to the request for interpretation.
3. The Procurators-General of the Supreme Courts of Appeal of the Contracting
States, or any other authority designated by a Contracting State, shall be entitled to
request the Court of Justice for a ruling on interpretation in accordance with paragraph
1.
4. The Registrar of the Court of Justice shall give notice of the request to the
Contracting States, to the Commission and to the Council of the European Communities;
they shall then be entitled within two months of the notification to submit statements of
case or written observations to the Court.
5. No fees shall be levied or any costs or expenses awarded in respect of the
proceedings provided for in this Article. Article 4
1. Except where this Protocol otherwise provides, the provisions of the Treaty
establishing the European Economic Community and those of the Protocol on the Statute
of the Court of Justice annexed thereto, which are applicable when the Court is
requested to give a preliminary ruling, shall also apply to any proceedings for the
interpretation of the instruments referred to in Article 1.
2. The Rules of Procedure of the Court of Justice shall, if necessary, be adjusted
and supplemented in accordance with Article 188 of the Treaty establishing the
European Economic Community. Article 5
This Protocol shall be subject to ratification by the Signatory States. The
instruments of ratification shall be deposited with the Secretary -General of the Council
of the European Communities. Article 6
1. To enter into force, this Protocol must be ratif ied by seven States in respect of
which the Rome Convention is in force. This Protocol shall enter into force on the first
day of the third month following the deposit of the instrument of ratification by the last
such State to take this step. If, however, the Second Protocol conferring on the Court of
Justice of the European Communities certain powers to interpret the Convention on the
law applicable to contractual obligations, opened for signature in Rome on 19 June
1980, concluded in Brussels on 19 Decem ber 1988, enters into force on a later date,
this Protocol shall enter into force on the date of entry into force of the Second Protocol.
2. Any ratification subsequent to the entry into force of this Protocol shall take
effect on the first day of the third month following the deposit of the instrument of
ratification provided that the ratification, acceptance or approval of the Rome
Convention by the State in question has become effective. Article 7
The Secretary-General of the Council of the European Communities shall notify the
Signatory States of:
(a) the deposit of each instrument of ratification;
(b) the date of entry into force of this Protocol;
(c) any designation communicated pursuant to Article 3(3);
(d) any communication made pursuant to Article 8. Article 8
The Contracting States shall communicate to the Secretary -General of the Council
of the European Communities the texts of any provisions of their laws which necessitate
an amendment to the list of courts in Article 2(a). Article 9
This Protocol shall have effect for as long as the Rome Convention remains in
force under the conditions laid down in Article 30 of that Convention. Article 10
Any Contracting State may reque st the revision of this Protocol. In this event, a
revision conference shall be convened by the President of the Council of the European
Communities. Article 11
This Protocol, drawn up in a single original in the Danish, Dutch, English, French,
German, Irish, Italian, Portuguese and Spanish languages, all 10 texts being equally
authentic, shall be deposited in the archives of the General Secretariat of the Council of
the European Communities. The Secretary -General shall transmit a certified copy to the
Government of each Signatory State. Schedule 3A. The Funchal Convention
The text of the Funchal Convention (see section 1(d)), the sole substantive effects
on the text of the Rome Convention being the deletions of Articles 22(2), 27 second
sentence of Article 30(3) and reference in Article 31(d) to Article 27 (see notes to those
articles). [Schedule 3B. The 1996 Accession Convention]
The text of the 1996 Accession Convention (see section 1(e)) inserting the
provisions indicated in the text of the Act .
Appendix 2
Council Regulation (EC) No 44/2001 of 22 December 2000

(on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters)
Chapter I Scope Article 1
1. This Regulation shall apply in civil and commercial matters whatever the nature
of the court or tribunal. It shall not extend, in particular, to revenue, customs or
administrative matters.
2. The Regulation shall not apply to:
(a) the status or legal capacity of natural persons, rights in property arising out of a
matrimonial relationship, wills and succession;
(b) bankruptcy, proceedings relating to the winding -up of insolvent companies or
other legal persons, judicial arrangements, compositions and a nalogous proceedings;
(c) social security;
(d) arbitration.
3. In this Regulation, the term "Member State" shall mean Member States with the
exception of Denmark.
Chapter II Jurisdiction Section 1 General Provisions Article 2
1. Subject to this Regulation, persons domiciled in a Member State shall, whatever
their nationality, be sued in the courts of that Member State.
2. Persons who are not nationals of the Member State in which they are domiciled
shall be governed by the rules of jurisdiction applicable to nationals of that State.
Article 3
1. Persons domiciled in a Member State may be sued in the courts of another
Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.
2. In particular the rules of national jurisdiction set out in Annex I shall not be
applicable as against them. Article 4
1. If the defendant is not domiciled in a Member State, the jurisdiction of the courts
of each Member State shall, subject to Articles 22 and 23, be determined by the law of
that Member State.
2. As against such a defendant, any person domiciled in a Member State may,
whatever his nationality, avail himself in that State of the rules of jurisdiction there in
force, and in particular those specified in Annex I, in t he same way as the nationals of
that State. Section 2 Special Jurisdiction Article 5
A person domiciled in a Member State may, in another Member State, be sued:
(a) in matters relating to a contract, in the courts for the place of performance of the
obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of
performance of the obligation in question shall be:
in the case of the sale of goods, the place in a Member State where, under the
contract, the goods were delivered or should have been delivered,
in the case of the provision of services, the place in a Member State where, under
the contract, the services were provided or should have been provided,
(c) if subparagraph (b) does not apply then subparagr aph (a) applies;
in matters relating to maintenance, in the courts for the place where the
maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to
proceedings concerning the status of a person, in the court which, accordi ng to its own
law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based
solely on the nationality of one of the parties;
in matters relating to tort, delict or quasi-delict, in the courts for the place where
the harmful event occurred or may occur;
as regards a civil claim for damages or restitution which is based on an act giving
rise to criminal proceedings, in the court seised of those proceedings, to the extent that
that court has jurisdiction under its own law to entertain civil proceedings;
as regards a dispute arising out of the operations of a branch, agency or other
establishment, in the courts for the place in which the branch, agency or other
establishment is situated;
as settlor, trustee or beneficiary of a trust created by the operation of a statute, or
by a written instrument, or created orally and evidenced in writing, in the courts of the
Member State in which the trust is domiciled;
as regards a dispute concerning the payment of remuneration claimed in respect of
the salvage of a cargo or freight, in the court under the authority of which the cargo or
freight in question:
provided that this provision shall apply only if it is claimed that the defendant has
an interest in the cargo or freight or had such an interest at the time of salvage. Article 6
A person domiciled in a Member State may also be sued:
where he is one of a number of defendants, in the courts for the place where any
one of them is domiciled, provided the claims are so closely connected that it is
expedient to hear and determine them together to avoid the risk of irreconcilable
judgments resulting from separate proceedings;
as a third party in an action on a warranty or guarantee or in any other third party
proceedings, in the court seised of the or iginal proceedings, unless these were instituted
solely with the object of removing him from the jurisdiction of the court which would be
competent in his case;
on a counter-claim arising from the same contract or facts on which the original
claim was based, in the court in which the original claim is pending;
in matters relating to a contract, if the action may be combined with an action
against the same defendant in matters relating to rights in rem in immovable property, in
the court of the Member State in which the property is situated. Article 7
Where by virtue of this Regulation a court of a Member State has jurisdiction in
actions relating to liability from the use or operation of a ship, that court, or any other
court substituted for this purpose by the internal law of that Member State, shall also
have jurisdiction over claims for limitation of such liability. Section 3 Jurisdiction in
Matters Relating to Insurance Article 8
In matters relating to insurance, jurisdiction shall be determined by this Section,
without prejudice to Article 4 and point 5 of Article 5. Article 9
1. An insurer domiciled in a Member State may be sued:
(a) in the courts of the Member State where he i s domiciled, or
(b) in another Member State, in the case of actions brought by the policyholder, the
insured or a beneficiary, in the courts for the place where the plaintiff is domiciled,
(c) if he is a co-insurer, in the courts of a Member State in which proceedings are
brought against the leading insurer.
2. An insurer who is not domiciled in a Member State but has a branch, agency or
other establishment in one of the Member States shall, in disputes arising out of the
operations of the branch, agency or establishment, be deemed to be domiciled in that
Member State. Article 10
In respect of liability insurance or insurance of immovable property, the insurer
may in addition be sued in the courts for the place where the harmful event occurred.
The same applies if movable and immovable property are covered by the same
insurance policy and both are adversely affected by the same contingency. Article 11
1. In respect of liability insurance, the insurer may also, if the law of the court
permits it, be joined in proceedings which the injured party has brought against the
insured.
2. Articles 8, 9 and 10 shall apply to actions brought by the injured party directly
against the insurer, where such direct actions are permitted.
3. If the law governing such direct actions provides that the policyholder or the
insured may be joined as a party to the action, the same court shall have jurisdiction
over them. Article 12
1. Without prejudice to Article 11(3), an insurer may bring proceed ings only in the
courts of the Member State in which the defendant is domiciled, irrespective of whether
he is the policyholder, the insured or a beneficiary.
2. The provisions of this Section shall not affect the right to bring a counter -claim
in the court in which, in accordance with this Section, the original claim is pending.
Article 13
which is entered into after the dispute has arisen, or
which allows the policyholder, the insured or a beneficiary to bring proceedings in
courts other than those indicated in this Section, or
which is concluded between a policyholder and an insurer, both of whom are at the
time of conclusion of the contract domiciled or habitually resident in the same Member
State, and which has the effect of conferring jurisdiction on the courts of that State even
if the harmful event were to occur abroad, provided that such an agreement is not
contrary to the law of that State, or
which is concluded with a policyholder who is not domiciled in a Member State,
except in so far as the insurance is compulsory or relates to immovable property in a
Member State, or
which relates to a contract of insurance in so far as it covers one or more of the
risks set out in Article 14. Article 14
The following are the risks referred to in Article 13(5):
any loss of or damage to:
(a) seagoing ships, installations situated offshore or on the high seas, or aircraft,
arising from perils which relate to their use for commercial purpos es;
(b) goods in transit other than passengers’ baggage where the transit consists of or
includes carriage by such ships or aircraft;
any liability, other than for bodily injury to passengers or loss of or damage to their
baggage:
(a) arising out of the use or operation of ships, installations or aircraft as referred
to in point 1(a) in so far as, in respect of the latter, the law of the Member State in which
such aircraft are registered does not prohibit agreements on jurisdiction regarding
insurance of such risks;
(b) for loss or damage caused by goods in transit as described in point 1(b);
any financial loss connected with the use or operation of ships, installations or
aircraft as referred to in point 1(a), in particular loss of freight or charter -hire;
any risk or interest connected with any of those referred to in points 1 to 3;
notwithstanding points 1 to 4, all "large risks" as defined in Council Directive
73/239/EEC,1 as amended by Council Directives 88/357/EEC 2 and 90/618/EEC, 3 as
they may be amended. Section 4 Jurisdiction over Consumer Contracts Article 15
1. In matters relating to a contract concluded by a person, the consumer, for a
purpose which can be regarded as being outside his trade or profession, jurisdiction
shall be determined by this Section, without prejudice to Article 4 and point 5 of Article
5, if:
(a) it is a contract for the sale of goods on instalment credit terms; or
(b) it is a contract for a loan repayable by instalments, or for any other form of
credit, made to finance the sale of goods; or
(c) in all other cases, the contract has been concluded with a person who pursues
commercial or professional activities in the Member State of the co nsumer’s domicile
or, by any means, directs such activities to that Member State or to several States
including that Member State, and the contract falls within the scope of such activities.
2. Where a consumer enters into a contract with a party who is not domiciled in the
Member State but has a branch, agency or other establishment in one of the Member
States, that party shall, in disputes arising out of the operations of the branch, agency or
establishment, be deemed to be domiciled in that State.
3. This Section shall not apply to a contract of transport other than a contract
which, for an inclusive price, provides for a combination of travel and accommodation.
Article 16
1. A consumer may bring proceedings against the other party to a contract either in
the courts of the Member State in which that party is domiciled or in the courts for the
place where the consumer is domiciled.
2. Proceedings may be brought against a consumer by the other party to the contract
only in the courts of the Member State in which the consumer is domiciled.
3. This Article shall not affect the right to bring a counter -claim in the court in
which, in accordance with this Section, the original claim is pending. Article 17
which is entered into after the dispute has arisen; or
which allows the consumer to bring proceedings in courts other than those
indicated in this Section; or
which is entered into by the consumer and the other party to the contract, both of
whom are at the time of conclusion of the contract domiciled or habitually resident in
the same Member State, and which confers jurisdiction on the courts of that Member
State, provided that such an agreement is not contrary to the law of that Member State.
Section 5 Jurisdiction over Individual Contracts of Employment Article 18
1. In matters relating to individual contracts of employment, jurisdiction shall be
determined by this Section, without prejudice to Article 4 and point 5 of Article 5.
2. Where an employee enters into an individual contract of employment with an
employer who is not domiciled in a Member State but has a branch, agenc y or other
establishment in one of the Member States, the employer shall, in disputes arising out of
the operations of the branch, agency or establishment, be deemed to be domiciled in that
Member State. Article 19
An employer domiciled in a Member State may be sued:
in the courts of the Member State where he is domiciled; or
in another Member State:
(a) in the courts for the place where the employee habitually carries out his work
or in the courts for the last place where he did so, or
(b) if the employee does not or did not habitually carry out his work in any one
country, in the courts for the place where the business which engaged the employee is or
was situated. Article 20
1. An employer may bring proceedings only in the courts of the Member State in
which the employee is domiciled.
2. The provisions of this Section shall not affect the right to bring a counter -claim
in the court in which, in accordance with this Section, the original claim is pending.
Article 21
The provisions of this Section may be departed from only by an agreement on
jurisdiction:
which is entered into after the dispute has arisen; or
which allows the employee to bring proceedings in courts other than those
indicated in this Section. Section 6 Exclusive Jurisdiction Article 22
The following courts shall have exclusive jurisdiction, regardless of domicile:
in proceedings which have as their object rights in rem in immovable property or
tenancies of immovable property, the courts of the Member State in which the property
is situated.
However, in proceedings which have as their object tenancies of immovable
property concluded for temporary private use for a maximum period of six consecutiv e
months, the courts of the Member State in which the defendant is domiciled shall also
have jurisdiction, provided that the tenant is a natural person and that the landlord and
the tenant are domiciled in the same Member State;
in proceedings which have as their object the validity of the constitution, the nullity
or the dissolution of companies or other legal persons or associations of natural or legal
persons, or of the validity of the decisions of their organs, the courts of the Member
State in which the company, legal person or association has its seat. In order to
determine that seat, the court shall apply its rules of private international law;
in proceedings which have as their object the validity of entries in public registers,
the courts of the Member State in which the register is kept;
in proceedings concerned with the registration or validity of patents, trade marks,
designs, or other similar rights required to be deposited or registered, the courts of the
Member State in which the deposit or registration has been applied for, has taken place
or is under the terms of a Community instrument or an international convention deemed
to have taken place.
Without prejudice to the jurisdiction of the European Paten t Office under the
Convention on the Grant of European Patents, signed at Munich on 5 October 1973, the
courts of each Member State shall have exclusive jurisdiction, regardless of domicile,
in proceedings concerned with the registration or validity of any European patent
granted for that State;
in proceedings concerned with the enforcement of judgments, the courts of the
Member State in which the judgment has been or is to be enforced. Section 7
Prorogation of Jurisdiction Article 23
1. If the parties, one or more of whom is domiciled in a Member State, have agreed
that a court or the courts of a Member State are to have jurisdiction to settle any
disputes which have arisen or which may arise in connection with a particular legal
relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be
exclusive unless the parties have agreed otherwise. Such an agreement conferring
jurisdiction shall be either:
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have established
between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of
which the parties are or ought to have been aware and which in such trade or commer ce
is widely known to, and regularly observed by, parties to contracts of the type involved
in the particular trade or commerce concerned.
2. Any communication by electronic means which provides a durable record of the
agreement shall be equivalent to "writing".
3. Where such an agreement is concluded by parties, none of whom is domiciled in
a Member State, the courts of other Member States shall have no jurisdiction over their
disputes unless the court or courts chosen have declined jurisdiction.
4. The court or courts of a Member State on which a trust instrument has conferred
jurisdiction shall have exclusive jurisdiction in any proceedings brought against a
5. Agreements or provisions of a trust instrument conferring jurisdiction shall have
no legal force if they are contrary to Articles 13, 17 or 21, or if the courts whose
jurisdiction they purport to exclude have exclusive jur isdiction by virtue of Article 22.
Article 24
Apart from jurisdiction derived from other provisions of this Regulation, a court of
a Member State before which a defendant enters an appearance shall have jurisdiction.
This rule shall not apply where appearance was entered to contest the jurisdiction, or
where another court has exclusive jurisdiction by virtue of Article 22. Section 8
Examination as to Jurisdiction and Admissibility Article 25
Where a court of a Member State is seised of a claim which is principally
concerned with a matter over which the courts of another Member State have exclusive
jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no
jurisdiction. Article 26
1. Where a defendant domiciled in one Member State is sued in a court of another
Member State and does not enter an appearance, the court shall declare of its own
motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of
this Regulation.
2. The court shall stay the proceedings so long as it is not shown that the defendant
has been able to receive the document instituting the proceedings or an equivalent
document in sufficient time to enable him to arrange for his defence, or that all
necessary steps have been taken to this end.
3. Article 19 of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the
service in the Member States of judicial and extrajudicial documents in civil or
commercial matters 4 shall apply instead of the provisions of paragraph 2 if the
document instituting the proceedings or an equivalent document had to be transmitted
from one Member State to another pursuant to this Regulation.
4. Where the provisions of Regulation (EC) No 1 348/2000 are not applicable,
Article 15 of the Hague Convention of 15 November 1965 on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters shall apply if the
document instituting the proceedings or an equivalent docume nt had to be transmitted
pursuant to that Convention. Section 9 Lis Pendens—Related Actions Article 27
1. Where proceedings involving the same cause of action and between the same
parties are brought in the courts of different Member States, any court oth er than the
court first seised shall of its own motion stay its proceedings until such time as the
jurisdiction of the court first seised is established.
2. Where the jurisdiction of the court first seised is established, any court other
than the court first seised shall decline jurisdiction in favour of that court. Article 28
1. Where related actions are pending in the courts of different Member States, any
court other than the court first seised may stay its proceedings.
2. Where these actions are pending at first instance, any court other than the court
first seised may also, on the application of one of the parties, decline jurisdiction if the
court first seised has jurisdiction over the actions in question and its law permits the
consolidation thereof.
3. For the purposes of this Article, actions are deemed to be related where they are
so closely connected that it is expedient to hear and determine them together to avoid the
risk of irreconcilable judgments resulting from separate proceedings. Article 29
Where actions come within the exclusive jurisdiction of several courts, any court
other than the court first seised shall decline jurisdiction in favour of that court. Article
30
For the purposes of this Section, a court shall be deemed to be seised:
at the time when the document instituting the proceedings or an equivalent
document is lodged with the court, provided that the plaintiff has not subsequently failed
to take the steps he was required to take to have service effected on the defendant, or
if the document has to be served before being lodged with the court, at the time
when it is received by the authority responsible for service, provided that the plaintiff
has not subsequently failed to take the steps he was required to take to have the
document lodged with the court. Section 10 Provisional, Including Protective,
Measures Article 31
Application may be made to the courts of a Member State for such provi sional,
including protective, measures as may be available under the law of that State, even if,
under this Regulation, the courts of another Member State have jurisdiction as to the
substance of the matter.
Chapter III Recognition and Enforcement Article 32
For the purposes of this Regulation, "judgment" means any judgment given by a
court or tribunal of a Member State, whatever the judgment may be called, including a
decree, order, decision or writ of execution, as well as the determination of co sts or
expenses by an officer of the court. Section 1 Recognition Article 33
1. A judgment given in a Member State shall be recognised in the other Member
States without any special procedure being required.
2. Any interested party who raises the recogni tion of a judgment as the principal
issue in a dispute may, in accordance with the procedures provided for in Sections 2
and 3 of this Chapter, apply for a decision that the judgment be recognised.
3. If the outcome of proceedings in a court of a Member S tate depends on the
determination of an incidental question of recognition that court shall have jurisdiction
over that question. Article 34
A judgment shall not be recognised:
if such recognition is manifestly contrary to public policy in the Member State in
which recognition is sought;
where it was given in default of appearance, if the defendant was not served with
the document which instituted the proceedings or with an equivalent document in
sufficient time and in such a way as to enable him to arrange for his defence, unless the
defendant failed to commence proceedings to challenge the judgment when it was
possible for him to do so;
if it is irreconcilable with a judgment given in a dispute between the same parties
in the Member State in which recognition is sought;
if it is irreconcilable with an earlier judgment given in another Member State or in
a third State involving the same cause of action and between the same parties, provided
that the earlier judgment fulfils the conditions necessary for its recognition in the
Member State addressed. Article 35
1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or
6 of Chapter II, or in a case provided for in Article 72.
2. In its examination of the grounds of jurisdiction referred to in the foregoing
paragraph, the court or authority applied to shall be bound by the findings of fact on
which the court of the Member State of origin based its jurisdiction.
3. Subject to the paragraph 1, the jurisdiction of the court of the Member State of
origin may not be reviewed. The test of public policy referred to in point 1 of Article 34
may not be applied to the rules relating to jurisdiction. Article 36
Under no circumstances may a foreign judgment be reviewed as to its substance.
Article 37
1. A court of a Member State in which recognition is sought of a judgment given in
another Member State may stay the proceedings if an ordinary appeal against the
judgment has been lodged.
2. A court of a Member State in which recognition is sought of a judgment given in
Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in
the State of origin, by reason of an appeal. Section 2 Enforcement Article 38
1. A judgment given in a Member State and enforceable in that State shall be
enforced in another Member State when, on the application of any interested party, it has
been declared enforceable there.
2. However, in the United Kingdom, such a judgment shall be enforced in England
and Wales, in Scotland, or in Northern Ireland when, on the application of any interested
party, it has been registered for enforcement in that part of the United Kingdom. Article
39
1. The application shall be submitted to the court or competent authority indicated
in the list in Annex II.
2. The local jurisdiction shall be determined by reference to the place of domicile
of the party against whom enforcement is sought, or to the place of enforcement. Article
40
1. The procedure for making the application shall be governed by the law of the
Member State in which enforcement is sought.
2. The applicant must give an address for service of process within the area of
jurisdiction of the court applied to. However, if the law of the Member State in which
enforcement is sought does not provide for the furnishing of such an address, the
applicant shall appoint a representative ad l item.
3. The documents referred to in Article 53 shall be attached to the application.
Article 41
The judgment shall be declared enforceable immediately on completion of the
formalities in Article 53 without any review under Articles 34 and 35. The party against
whom enforcement is sought shall not at this stage of the proceedings be entitled to m ake
any submissions on the application. Article 42
1. The decision on the application for a declaration of enforceability shall
forthwith be brought to the notice of the applicant in accordance with the procedure laid
down by the law of the Member State in which enforcement is sought.
2. The declaration of enforceability shall be served on the party against whom
enforcement is sought, accompanied by the judgment, if not already served on that party.
Article 43
1. The decision on the application for a declaration of enforceability may be
appealed against by either party.
2. The appeal is to be lodged with the court indicated in the list in Annex III.
3. The appeal shall be dealt with in accordance with the rules governing procedure
in contradictory matters.
4. If the party against whom enforcement is sought fails to appear before the
appellate court in proceedings concerning an appeal brought by the applicant, Article
26(2) to (4) shall apply even where the party agains t whom enforcement is sought is not
domiciled in any of the Member States.
5. An appeal against the declaration of enforceability is to be lodged within one
month of service thereof. If the party against whom enforcement is sought is domiciled
in a Member State other than that in which the declaration of enforceability was given,
the time for appealing shall be two months and shall run fr om the date of service, either
on him in person or at his residence. No extension of time may be granted on account of
distance. Article 44
The judgment given on the appeal may be contested only by the appeal referred to
in Annex IV. Article 45
1. The court with which an appeal is lodged under Article 43 or Article 44 shall
refuse or revoke a declaration of enforceability only on one of the grounds specified in
Articles 34 and 35. It shall give its decision without delay.
2. Under no circumstances may the foreign judgment be reviewed as to its
substance. Article 46
1. The court with which an appeal is lodged under Article 43 or Article 44 may, on
the application of the party against whom enforcement is sought, stay the procee dings if
an ordinary appeal has been lodged against the judgment in the Member State of origin
or if the time for such an appeal has not yet expired; in the latter case, the court may
specify the time within which such an appeal is to be lodged.
2. Where the judgment was given in Ireland or the United Kingdom, any form of
appeal available in the Member State of origin shall be treated as an ordinary appeal
for the purposes of paragraph 1.
3. The court may also make enforcement conditional on the provision of such
security as it shall determine. Article 47
1. When a judgment must be recognised in accordance with this Regulation, nothing
shall prevent the applicant from availing himself of provisional, including protective,
measures in accordance with the l aw of the Member State requested without a
declaration of enforceability under Article 41 being required.
2. The declaration of enforceability shall carry with it the power to proceed to any
protective measures.
3. During the time specified for an appeal pursuant to Article 43(5) against the
declaration of enforceability and until any such appeal has been determined, no
measures of enforcement may be taken other than protective measures against the
property of the party against whom enforcement is sought. Article 48
1. Where a foreign judgment has been given in respect of several matters and the
declaration of enforceability cannot be given for all of them, the court or competent
authority shall give it for one or more of them.
2. An applicant may request a declaration of enforceability limited to parts of a
judgment. Article 49
A foreign judgment which orders a periodic payment by way of a penalty shall be
enforceable in the Member State in which enforcement is sought only if the amount of
the payment has been finally determined by the courts of the Member State of origin.
Article 50
An applicant who, in the Member State of origin has benefited from complete or
partial legal aid or exemption from costs or expenses, shall be entitled, in the procedure
provided for in this Section, to benefit from the most favourable legal aid or the most
extensive exemption from costs or expenses provided for by the law of the Mem ber
State addressed. Article 51
No security, bond or deposit, however described, shall be required of a party who
in one Member State applies for enforcement of a judgment given in another Member
State on the ground that he is a foreign national or that he is not domiciled or resident in
the State in which enforcement is sought. Article 52
In proceedings for the issue of a declaration of enforceability, no charge, duty or
fee calculated by reference to the value of the matter at issue may be levied in the
Member State in which enforcement is sought. Section 3 Common Provisions Article
53
1. A party seeking recognition or applying for a declaration of enforceability shall
produce a copy of the judgment which satisfies the conditions necessary to establish it s
authenticity.
2. A party applying for a declaration of enforceability shall also produce the
certificate referred to in Article 54, without prejudice to Article 55. Article 54
The court or competent authority of a Member State where a judgment was given
shall issue, at the request of any interested party, a certificate using the standard form in
Annex V to this Regulation. Article 55
1. If the certificate referred to in Article 54 is not produced, the court or competent
authority may specify a time for its production or accept an equivalent document or, if it
considers that it has sufficient information before it, dispense with its production.
2. If the court or competent authority so requires, a translation of the docum ents
shall be produced. The translation shall be certified by a person qualified to do so in
one of the Member States. Article 56
No legalisation or other similar formality shall be required in respect of the
documents referred to in Article 53 or Article 55(2), or in respect of a document
appointing a representative ad litem.
Chapter IV Authentic Instruments and Court Settlements Article 57
1. A document which has been formally drawn up or registered as an authentic
instrument and is enforceable in one Member State shall, in another Member State, be
declared enforceable there, on application made in accordance with the procedures
provided for in Articles 38, et seq. The court with which an appeal is lodged under
Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if
enforcement of the instrument is manifestly contrary to public policy in the Member
State addressed.
2. Arrangements relating to maintenance obligations concluded with administrative
authorities or authenticated by them shall also be regarded as authentic instruments
within the meaning of paragraph 1.
3. The instrument produced must satisfy the conditions n ecessary to establish its
authenticity in the Member State of origin.
4. Section 3 of Chapter III shall apply as appropriate. The competent authority of a
Member State where an authentic instrument was drawn up or registered shall issu e, at
the request of any interested party, a certificate using the standard form in Annex VI to
this Regulation. Article 58
A settlement which has been approved by a court in the course of proceedings and
is enforceable in the Member State in which it was concluded shall be enforceable in
the State addressed under the same conditions as authentic instruments. The court or
competent authority of a Member State where a court settlement was approved shall
issue, at the request of any interested party, a certif icate using the standard form in
Annex V to this Regulation.
Chapter V General Provisions Article 59
1. In order to determine whether a party is domiciled in the Member State whose
courts are seised of a matter, the court shall apply its internal law.
2. If a party is not domiciled in the Member State whose courts are seised of the
matter, then, in order to determine whether the party is domiciled in another Member
State, the court shall apply the law of that Member State. Article 60
1. For the purposes of this Regulation, a company or other legal person or
association of natural or legal persons is domiciled at the place where it has its:
(a) statutory seat, or
(b) central administration, or
(c) principal place of business.
2. For the purposes of the United Kingdom and Ireland "statutory seat" means the
registered office or, where there is no such office anywhere, the place of incorporation
or, where there is no such place anywhere, the place under the law of which the
formation took place.
3. In order to determine whether a trust is domiciled in the Member State whose
courts are seised of the matter, the court shall apply its rules of private international
law. Article 61
Without prejudice to any more favourable provisions of national laws, persons
domiciled in a Member State who are being prosecuted in the criminal courts of another
Member State of which they are not nationals for an offence which was not intentionally
committed may be defended by persons qualified to do so, even if they do not appear in
person. However, the court seised of the matter may order appearance in person; in the
case of failure to appear, a judgment given in the civil action without the person
concerned having had the opportunity to arrange for his defence need not be recognised
or enforced in the other Member States. Article 62
In Sweden, in summary proceedings concerning orders to pay ( betalningsför
eläggande) and assistance (handräckning), the expression "court" includes the
"Swedish enforcement service" (kronofogdemyndighet). Article 63
1. A person domiciled in the territory of the Grand Duchy of Luxembourg and sued
in the court of another Member State pursuant to Article 5(1) may refuse to submit to the
jurisdiction of that court if the final place of delivery of the goods or provision of the
services is in Luxembourg.
2. Where, under paragraph 1, the final place of delivery of the goods or provision
of the services is in Luxembourg, any agreement conferring jurisdiction mus t, in order to
be valid, be accepted in writing or evidenced in writing within the meaning of Article
23(1)(a).
3. The provisions of this Article shall not apply to contracts for the provision of
financial services.
into force of this Regulation. Article 64
1. In proceedings involving a dispute between the master and a member of the
crew of a seagoing ship registered in Greece or in Portugal, concerning remuneration or
other conditions of service, a court in a Member State shall establish whether the
diplomatic or consular officer responsible for the ship has been notified of the dispute.
It may act as soon as that officer has been notified.
into force of this Regulation. Article 65
1. The jurisdiction specified in Article 6(2), and Article 11 in actions on a
warranty of guarantee or in any other third party procee dings may not be resorted to in
Germany and Austria. Any person domiciled in another Member State may be sued in
the courts:
(a) of Germany, pursuant to Articles 68 and 72 to 74 of the Code of Civil
Procedure (Zivilprozessordnung) concerning third-party notices,
(b) of Austria, pursuant to Article 21 of the Code of Civil Procedure
(Zivilprozessordnung) concerning third-party notices.
2. Judgments given in other Member States by virtue of Article 6(2), or Article 11
shall be recognised and enforced in Germany and Austria in accordance with Chapter
III. Any effects which judgments given in these States may have on third parties by
application of the provisions in paragraph 1 shall also be recognised in the other
Member States.
Chapter VI Transitional Provisions Article 66
1. This Regulation shall apply only to legal proceedings instituted and to
documents formally drawn up or registered as authentic instruments after the entry into
force thereof.
2. However, if the proceedings in the Member State of origin were instituted
before the entry into force of this Regulation, judgments given after that date shall be
recognised and enforced in accordance with Chapter III,
(a) if the proceedings in the Member State of origin were instituted after the entry
into force of the Brussels or the Lugano Convention both in the Member State or origin
and in the Member State addressed;
(b) in all other cases, if jurisdiction was founded upon rules which accorded with
those provided for either in Chapter II or in a convention concluded between the
Member State of origin and the Member State addressed which was in force when the
proceedings were instituted.
Chapter VII Relations with Other Instruments Article 67
This Regulation shall not prejudice the application of provisions governing
jurisdiction and the recognition and enforcement of judgments in specific matters which
are contained in Community instruments or in national legislation harmonised p ursuant
to such instruments. Article 68
1. This Regulation shall, as between the Member States, supersede the Brussels
Convention, except as regards the territories of the Member States which fall within the
territorial scope of that Convention and which are excluded from this Regulation
pursuant to Article 299 of the Treaty.
2. In so far as this Regulation replaces the provisions of the Brussels Convention
between Member States, any reference to the Conventi on shall be understood as a
reference to this Regulation. Article 69
Subject to Article 66(2) and Article 70, this Regulation shall, as between Member
States, supersede the following conventions and treaty concluded between two or more
of them:
the Convention between Belgium and France on Jurisdiction and the Validity and
Enforcement of Judgments, Arbitration Awards and Authentic Instruments, signed at
Paris on 8 July 1899,
the Convention between Belgium and the Netherlands on Jurisdiction, Bankr uptcy,
and the Validity and Enforcement of Judgments, Arbitration Awards and Authentic
Instruments, signed at Brussels on 28 March 1925,
the Convention between France and Italy on the Enforcement of Judgments in Civil
and Commercial Matters, signed at Rome on 3 June 1930,
the Convention between Germany and Italy on the Recognition and Enforcement of
Judgments in Civil and Commercial Matters, signed at Rome on 9 March 1936,
the Convention between Belgium and Austria on the Reciprocal Recognition and
Enforcement of Judgments and Authentic Instruments relating to Maintenance
Obligations, signed at Vienna on 25 October 1957,
the Convention between Germany and Belgium on the Mutual Recognition and
Enforcement of Judgments, Arbitration Awards and Authentic Instrum ents in Civil and
Commercial Matters, signed at Bonn on 30 June 1958,
the Convention between the Netherlands and Italy on the Recognition and
Enforcement of Judgments in Civil and Commercial Matters, signed at Rome on 17
April 1959,
the Convention between Germany and Austria on the Reciprocal Recognition and
Enforcement of Judgments, Settlements and Authentic Instruments in Civil and
Commercial Matters, signed at Vienna on 6 June 1959,
the Convention between Belgium and Austria on the Reciprocal Recognition and
Enforcement of Judgments, Arbitral Awards and Authentic Instruments in Civil and
Commercial Matters, signed at Vienna on 16 June 1959,
the Convention between Greece and Germany for the Reciprocal Recognition and
Enforcement of Judgments, Settlements and Authentic Instruments in Civil and
Commercial Matters, signed in Athens on 4 November 1961,
the Convention between Belgium and Italy on the Recognition and Enforcement of
Judgments and other Enforceable Instruments in Civil and Commercial Matters, signed
at Rome on 6 April 1962,
the Convention between the Netherlands and Germany on the Mutual Recognition
and Enforcement of Judgments and Other Enforceable Instruments in Civil and
Commercial Matters, signed at The Hague on 30 August 1962,
the Convention between the Netherlands and Austria on the Reciprocal
Recognition and Enforcement of Judgments and Authentic Instruments in Civil and
Commercial Matters, signed at The Hague on 6 February 1963,
the Convention between France and Austria on the Recognition and Enforcement of
Judgments and Authentic Instruments in Civil and Commercial Matters, signed at Vienna
on 15 July 1966,
the Convention between Spain and France on the Recognition and Enforcement of
Judgment Arbitration Awards in Civil and Commercial Matters, signed at Paris on 28
May 1969,
the Convention between Luxembourg and Austria on the Recognition and
Enforcement of Judgments and Authentic Instruments in Civil and Commercial Matters,
signed at Luxembourg on 29 July 1971,
the Convention between Italy and Austria on the Recognition and Enforcement of
Judgments in Civil and Commercial Matters, of Judicial Settlements and of Authentic
Instruments, signed at Rome on 16 November 1971,
the Convention between Spain and Italy regarding Legal Aid and the Recognition
and Enforcement of Judgments in Civil and Commercial Matters, signed at Madrid on
22 May 1973,
the Convention between Finland, Iceland, Norway, Sweden and Denmark on the
Recognition and Enforcement of Judgments in Civil Matters, signed at Copenhagen on
11 October 1977,
the Convention between Austria and Sweden on the Recognition and Enforcement
of Judgments in Civil Matters, signed at Stockholm on 16 September 1982,
the Convention between Spain and the Federal Republic of Germany on the
Recognition and Enforcement of Judgments, Settlements and Enforceable Authentic
Instruments in Civil and Commercial Matters, signed at Bonn on 14 November 1983,
the Convention between Austria and Spain on the Recognition and Enforcement of
Judgments, Settlements and Enforceable Authentic Instruments in Civil and Commercial
Matters, signed at Vienna on 17 February 1984,
the Convention between Finland and Austria on the Recognition and En forcement
of Judgments in Civil Matters, signed at Vienna on 17 November 1986, and
the Treaty between Belgium, the Netherlands and Luxembourg in Jurisdiction,
Bankruptcy, and the Validity and Enforcement of Judgments, Arbitration Awards and
Authentic Instruments, signed at Brussels on 24 November 1961, in so far as it is in
force. Article 70
1. The Treaty and the Conventions referred to in Article 69 shall continue to have
effect in relation to matters to which this Regulation does not apply.
2. They shall continue to have effect in respect of judgments given and documents
this Regulation. Article 71
1. This Regulation shall not affect any conventions to which the Member States are
parties and which in relation to particular matters, govern jurisdiction or the recognition
or enforcement of judgments.
2. With a view to its uniform interpretation, paragraph 1 shall be applied in the
following manner:
(a) this Regulation shall not prevent a court of a Member State, which is a party to
a convention on a particular matter, from assuming jurisdiction in accordance with that
convention, even where the defendant is domiciled in another Member State which is
not a party to that convention. The court hearing the action shall, in any event, apply
Article 26 of this Regulation;
(b) judgments given in a Member State by a court in the exercise of jurisdiction
provided for in a convention on a particular matter shall be recognised and enforced in
origin and the Member State addr essed are parties lays down conditions for the
enforcement of judgments may be applied. Article 72
This Regulation shall not affect agreements by which Member States undertook,
prior to the entry into force of this Regulation pursuant to Article 59 of the Brussels
Convention, not to recognise judgments given, in particular in other Contracting States
to that Convention, against defendants domiciled or habitually resident in a thi rd country
where, in cases provided for in Article 4 of that Convention, the judgment could only be
founded on a ground of jurisdiction specified in the second paragraph of Article 3 of
that Convention.
Chapter VIII Final Provisions Article 73
No later than five years after the entry into force of this Regulation, the
Commission shall present to the European Parliament, the Council and the Economic
and Social Committee a report on the application of this Regulation. The report shall be
accompanied, if need be, by proposals for adaptations to this Regulation. Article 74
1. The Member States shall notify the Commission of the texts amending the lists
set out in Annexes I to IV. The Commission shall adapt the Annexes concerned
accordingly.
2. The updating or technical adjustment of the forms, specimens of which appear in
Annexes V and VI, shall be adopted in accordance with the advisory procedure referred
to in Article 7 5(2). Article 75
1. The Commission shall be assisted by a committee.
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision
1 999/468/EC shall apply.
3. The Committee shall adopt its rules of procedure. Article 76
This Regulation shall enter into force on 1 March 2002.
This Regulation is binding in its entirety and directly applicable in the Member
States in accordance with the Treaty establishing the European Community.
Done at Brussels, 22 December 2000.
For the Council
The President
C. PIERRET
1. OJ L 228, 16.8.1973, p. 3. Directive as last amended by Directive 2000/26/EC
of the European Parliament and of the Council (OJ L 181, 20.7.2000, p. 65).
2. OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive 2000/26/EC.
3. OJ L 330, 29.11.1990, p. 44.
4. OJ L 160, 30.6.2000, p. 37.
Appendix 3
The Civil Jurisdiction and Judgments Order 2001 2001 No. 3929 Citation and
commencement
1. This Order may be cited as the Civil Jurisdiction and Judgments Order 2001 and
shall come into force—
(a) as to articles 1 and 2, paragraphs 1(a), 1(b)(ii) and 17 of Schedule 2 and, so far
as it relates to those paragraphs, article 4, on 25th January 2002; and
(b) as to the remainder of this Order, on 1st March 2002. Interpretation
2.—(1) In this Order—
"the Act" means the Civil Jurisdiction and Judgments Act 1982;
"the Regulation" means Council Regulation (EC) No. 44/2001 of 22nd December
2000 on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters;
"Regulation State" in any provision, in the application of that provision in relation
to the Regulation, has the same meaning as "Member State" in the Regulation, that is all
Member States except Denmark.
(2) In Schedule 2 to this Order, a section, Part, S chedule or paragraph referred to
by number alone is a reference to the section, Part, Schedule or paragraph so numbered
in the Act. The Regulation
3. Schedule 1 to this Order (which applies certain provisions of the Act with
modifications for the purposes of the Regulation) shall have effect. Amendments to the
Civil Jurisdiction and Judgments Act 1982
4. Schedule 2 to this Order (which makes amendments to the Act) shall have
effect.* Consequential amendments
5. Schedule 3 to this Order (which makes conse quential amendments) shall have
effect. Transitional provisions
6.—(1) Where proceedings are begun before 1st March 2002 in any part of the
United Kingdom on the basis of jurisdiction determined in accordance with section 16
of, and Schedule 4 to, the Act, the proceedings may be continued as if the amendments
made by paragraphs 3 and 4 of Schedule 2 to this Order had not been made and those
amendments shall not apply in respect of any proceedings begun before that date.
(2) Where proceedings are begun before 1st March 2002 in any court in Scotland
on the basis of jurisdiction determined in accordance with section 20 of, and Schedule 8
to, the Act, the proceedings may be continued as if the amendments made by paragraphs
6 and 7 of Schedule 2 to this Order had not been made and those amendments shall not
apply in respect of any proceedings begun before that date. Schedule 1 the Regulation
Article 3 Interpretation
1.—(1) In this Schedule—
"court", without more, includes a tribunal;
"judgment" has the meaning given by Article 32 of the Regulation;
"magistrates’ court", in relation to Northern Ireland, means a court of summary
jurisdiction;
"maintenance order" means a maintenance judgment within the meaning of the
Regulation;
"part of the United Kingdom" means England and Wales, Scotland or Northern
Ireland;
"payer", in relation to a maintenance order, means the person liable to make the
payments for which the order provides;
"prescribed" means prescribed by rules of court.
(2) In this Schedule, any reference to a numbered Article or Annex is a reference to
the Article or Annex so numbered in the Regulation, and any reference to a sub -division
of a numbered Article shall be construed accordingly.
(3) References in paragraphs 2 to 8 to a judgment registered under the Regulation
include, to the extent of its registration, references to a judgment so registered to a
limited extent only.
(4) Anything authorised or required by the Regulation or paragraphs 2 to 8 to be
done by, to or before a particular magistrates’ court may be done by, to or before any
magistrates’ court acting for the same petty sessions area (or, in Northern Ireland, petty
sessions district) as that court. Enforcement of judgments other than maintenance
orders (section 4)
2.—(1) Where a judgment is registered under the Regulation, the reasonable costs
or expenses of and incidental to its registration shall be recoverable as if they were
sums recoverable under the judgment.
(2) A judgment registered under the Regulation shall, for the purposes of its
enforcement, be of the same force and effect, the registering court shall have in relation
to its enforcement the same powers, and proceedings for or with respect to its
enforcement may be taken, as if the judgment had been originally given by the
registering court and had (where relevant) been entered.
(3) Sub-paragraph (2) is subject to Article 47 (restriction on enforcement where
appeal pending or time for appeal unexpired), to paragraph 5 and to any provision made
by rules of court as to the manner in which and conditions subject to which a judgment
registered under the Regulation may be enforced. Appeals under Article 44 and Annex
IV (section 6)
4.—(1) The single further appeal on a point of law referred to under Article 44
and Annex IV in relation to the recognition or enforcement of a judgment other than a
maintenance order lies—
(a) in England and Wales or Northern Ireland, to the Court of Appea l or to the
House of Lords in accordance with Part II of the Administration of Justice Act 1969
(appeals direct from the High Court to the House of Lords);
(b) in Scotland, to the Inner House of the Court of Session.
(2) Paragraph (a) of sub-paragraph (1) has effect notwithstanding section 15(2) of
the Administration of Justice Act 1969 (exclusion of direct appeal to the House of Lords
in cases where no appeal to that House lies from a decision of the Court of Appeal).
(3) The single further appeal on a point of law referred to in Article 44 and Annex
IV in relation to the recognition or enforcement of a maintenance order lies —
(a) in England and Wales, to the High Court by way of case stated in accordance
with section 111 of the Magistrates’ Courts Act 1980;
(b) in Scotland, to the Inner House of the Court of Session;
(c) in Northern Ireland, to the Court of Appeal. Interest on registered judgments
(section 7)
5.—(1) Subject to sub-paragraph (3), where in connection with an application for
registration of a judgment under the Regulation the applicant shows —
(a) that the judgment provides for the payment of a sum of money; and
(b) that in accordance with the law of the Regulation State in which the judgment
was given interest on that sum is recoverable under the judgment from a particular date
or time,
the rate of interest and the date or time from which it is so recoverable shall be
registered with the judgment and, subject to rules of court, the debt result ing, apart from
paragraph 2(1), from the registration of the judgment shall carry interest in accordance
with the registered particulars.
(2) Costs or expenses recoverable by virtue of paragraph 2(1) shall carry interest
as if they were the subject of an order for the payment of costs or expenses made by the
registering court on the date of registration.
(3) Interest on arrears of sums payable under a maintenance order registered under
the Regulation in a magistrates’ court in England and Wales or North ern Ireland shall not
be recoverable in that court, but without prejudice to the operation in relation to any
such order of section 2A of the Maintenance Orders Act 1958 1 or section 11A of the
Maintenance and Affiliation Orders Act (Northern Ireland) 1966 2 (which enable interest
to be recovered if the order is re-registered for enforcement in the High Court).
(4) Except as mentioned in sub-paragraph (3), debts under judgments registered
under the Regulation shall carry interest only as provided by this pa ragraph. Allocation
within United Kingdom of jurisdiction with respect to trusts and consumer contracts
(section 10)
7.—(1) The provisions of this paragraph have effect for the purpose of allocating
within the United Kingdom jurisdiction in certain proceedings in respect of which the
Regulation confers jurisdiction on the courts of the United Kingdom generally and to
which section 16 of the Act does not apply.
(2) Any proceedings which by virtue of Article 5(6) (trusts) are brought in the
United Kingdom shall be brought in the courts of the part of the United Kingdom in
which the trust is domiciled.
(3) Any proceedings which by virtue of the Article 16(1) (consumer contracts) are
brought in the United Kingdom by a consumer on the ground that he is himself domiciled
there shall be brought in the courts of the part of the United Kingdom in which he is
domiciled. Proof and admissibility of certain judgments and related documents
(section 11)
8.—(1) For the purposes of the Regulation—
(a) a document, duly authenticated, which purports to be a copy of a judgment
given by a court of a Regulation State other than the United Kingdom shall without
further proof be deemed to be a true copy, unless the contra ry is shown; and
(b) a certificate obtained in accordance with Article 54 and Annex V shall be
evidence, and in Scotland sufficient evidence, that the judgment is enforceable in the
Regulation State of origin.
(2) A document purporting to be a copy of a judgment given by any such court as is
mentioned in sub-paragraph (1)(a) is duly authenticated for the purposes of this
paragraph if it purports—
(a) to bear the seal of that court; or
(b) to be certified by any person in his capacity as a judge or officer of that court to
be a true copy of a judgment given by that court.
(3) Nothing in this paragraph shall prejudice the admission in evidence of any
document which is admissible apart from this paragrap h. Domicile of individuals
(section 41)
9.—(1) Subject to Article 59 (which contains provisions for determining whether a
party is domiciled in a Regulation State), the following provisions of this paragraph
determine, for the purposes of the Regulation, w hether an individual is domiciled in the
United Kingdom or in a particular part of, or place in, the United Kingdom or in a state
other than a Regulation State.
(2) An individual is domiciled in the United Kingdom if and only if —
(a) he is resident in the United Kingdom; and
connection with the United Kingdom.
(3) Subject to sub-paragraph (5), an individual is domiciled in a particular part of
the United Kingdom if and only if—
(a) he is resident in that part; and
connection with that part.
(4) An individual is domiciled in a particular place in the United K ingdom if and
only if he—
(a) is domiciled in the part of the United Kingdom in which that place is situated;
and
(b) is resident in that place.
(5) An individual who is domiciled in the United Kingdom but in whose case the
requirements of sub-paragraph (3)(b) are not satisfied in relation to any particular part
of the United Kingdom shall be treated as domiciled in the part of the United Kingdom
in which he is resident.
(6) In the case of an individual who —
(a) is resident in the United Kingdom, or in a particular part of the United
Kingdom; and
(b) has been so resident for the last three months or more,
the requirements of sub-paragraph (2)(b) or, as the case may be, sub -paragraph (3)
(b) shall be presumed to be fulfilled unless the contrary is proved.
(7) An individual is domiciled in a state other than a Regulation State if and only if
—
(a) he is resident in that state; and
connection with that state. Seat of company, or other legal person or association for
purposes of Article 22(2) (section 43)
10.—(1) The following provisions of this paragraph determine where a company,
legal person or association has its seat for the purposes of Article 22(2) (which confers
exclusive jurisdiction over proceedings relating to the formation or dissolution of such
bodies, or to the decisions of their organs).
(2) A company, legal person or association has its seat in the United Kingdom if
and only if—
(a) it was incorporated or formed under the law of a part of the United Kingdom;
or
(3) Subject to sub-paragraph (4), a company, legal person or association has its
seat in a Regulation State other than the United Kingdom if and only if —
(a) it was incorporated or formed under the law of that state; or
(4) A company, legal person or association shall not be regarded as having its seat
in a Regulation State other than the United Kingdom if –
(a) it has its seat in the United Kingdom by virtue of sub-paragraph (2)(a); or
(b) it is shown that the courts of that other state would not regard it for the
purposes of Article 22(2) as having its seat there. Persons deemed to be domiciled in
the United Kingdom for certain purpos es (section 44)
11.—(1) This paragraph applies to
(a) proceedings within Section 3 of Chapter II of the Regulation (insurance
contracts),
(b) proceedings within Section 4 of Chapter II of the Regulation (consumer
contracts), and
(c) proceedings within Section 5 of Chapter II of the Regulation (employment
contracts).
(2) A person who, for the purposes of proceedings to which this paragraph applies
arising out of the operations of a branch, agency or other establishment in the Unite d
Kingdom, is deemed for the purposes of the Regulation to be domiciled in the United
Kingdom by virtue of—
(a) Article 9(2) (insurers); or
(b) Article 15(2) (suppliers of goods, services or credit to consumers), or
(c) Article 18(2) (employers),
shall, for the purposes of those proceedings, be treated as so domiciled and as
domiciled in the part of the United Kingdom in which the branch, agency or
establishment in question is situated. Domicile of trusts (section 45)
12.—(1) The following provisions of this paragraph determine for the purposes of
the Regulation where a trust is domiciled.
(2) A trust is domiciled in the United Kingdom if and only if it is by virtue of sub -
paragraph (3) domiciled in a part of the United K ingdom.
(3) A trust is domiciled in a part of the United Kingdom if and only if the system of
law of that part is the system of law with which the trust has its closest and most real
connection. Schedule 2 Amendments to the Civil Jurisdiction and Judgments Act
1982 Article 4
The text of the Act (Appendix 1 is as amended) Schedule 3 Consequential
Amendments Article 5 The Naval Forces (Enforcement of Maintenance Liabilities)
Act 1947 (c. 24)
1. In section 1 of the Naval Forces (Enforcement of Maintenance Liabilities) Act
1
1947 (deduction from pay in respect of liabilities for maintenance, etc), in subsection
(2A)(b) after "Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972"
add "or under Council Regulation (EC) No. 44/200 1 of 22nd December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters". The Army Act 1955 (c. 18)
2. In section 150 of the Army Act 1955 2 (enforcement of maintenance and
affiliation orders by deduction from pay), in subsection (5) after "Part I of the Civil
Jurisdiction and Judgments Act 1982" insert "or Council Regulation (EC) No. 44/200 1
of 22nd December 2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters". The Air Force Act 1955 (c. 19)
3. In section 150 of the Air Force Act 1955 3 (enforcement of maintenance and
affiliation orders by deduction from pay), in subsection (5) after "Part I of the Civil
judgments in civil and commercial matters". The Naval Discipline Act 1957 (c. 53)
4. In section 101 of the Naval Discipline Act 1957 4 (service of proceedings for
maintenance, etc), in subsection (5) after "Part I of the Civil Jurisdiction and Judgments
Act 1982" insert "or Council Regulation (EC) No. 44/200 1 of 22nd December 2000 on
matters". The Maintenance Orders Act 1958 (c. 39)
5. In section 1 of the Maintenance Orders Act 1958 5 (application of Part I), in
subsection (4) after "Part I of the Civil Jurisdiction and Judgments Act 1982" insert "or
Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters". The Legal
Aid (General) Regulations (Northern Ireland) 1965 (S.R. & O. (N.I.) 1965 No. 217
6. In regulation 3B(1) of the Legal Aid (General) Regulations (Northern Ireland)
6
1965 (registration of certain foreign orders and judgments) after "the Civil Jurisdiction
and Judgments Act 1982" insert—
"or who applies for the registration of a judgment under Council Regulation (EC)
No. 44/200 1 of 22nd December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters". The Maintenance and
Affiliation Orders Act (Northern Ireland) 1966 (c. 35)(N.I.)
7. In section 10 of the Maintenance and Affiliation Orders Act (Northern Ireland)
7
1966 (orders to which Part II of that Act applies), in subsections (2) and (5), after "the
Civil Jurisdiction and Judgments Act 1982" insert—
"or Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction
and the recognition and enforcement of judgments in civil and commercial matters". The
Administration of Justice Act 1970 (c. 31)
8. In Schedule 8 to the Administration of Justice Act 1970 8 (which lists
maintenance orders for the purposes of Part II of that Act), after paragraph 13 insert —
"1 3A. A maintenance judgment within the meaning of Council Regulation (EC) No.
44/200 1 of 22nd December 2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters, which is registered in a magistrates’ court
under that Regulation.". The Attachment of Earnings Act 1971 (c. 32)
9. In Schedule 1 to the Attachment of Earnings Act 19719 (which lists maintenance
orders to which that Act applies) after paragraph 13 insert —
"14. A maintenance judgment within the meaning of Council Regulation (EC) No.
44/200 1 of 22nd December 2000 on jurisdiction and the recognition and enforce ment of
judgments in civil and commercial matters, which is registered in a magistrates’ court
under that Regulation.". The Magistrates' Courts Act 1980 (c. 43)
10. The Magistrates’ Courts Act 1980 10 is amended as follows.
11. In section 6511 (meaning of family proceedings)—
(a) after subsection (1)(q) insert— "(r) Council Regulation (EC) No. 44/2001 of
22nd December 2000 on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters, so far as that Regulation relates to the recognition or
enforcement of maintenance orders;"; and
(b) in subsection (2)(a) for "and (p)" substitute ", (p) and (r)".
12. In subsection 7 of section 95 12 (remission of arrears and manner in which
arrears to be paid) in paragraph (a) of the definition of "non -English maintenance
order"—
(a) at the end of sub-paragraph (iii) omit "or";
(b) at the end of sub-paragraph (iv) add "or";
(c) after sub-paragraph (iv) insert— "(v) under Council Regulation (EC) No.
judgments in civil and commercial matters;". The Magistrates' Courts (Northern
Ireland) Order 1981 (S.I. 1981/1675 (N.I.26))
13. The Magistrates’ Courts (Northern Ireland) Order 1981 13 is amended as
follows.
14. In paragraph (7) of Article 87 14 (remission of arrears and manner in which
arrears to be paid) in paragraph (a) of the definition of "non -Northern Ireland
maintenance order"—
(a) at the end of sub-paragraph (iii) omit "or";
(b) at the end of sub-paragraph (iv) add "or";
(c) after sub-paragraph (iv) insert— "(v) under Council Regulation (EC) No.
judgments in civil and commercial matters;".
15. In Article 8815 (definition of "domestic proceedings" for the purposes of that
Order), at the end of paragraph (a) insert —
"or under Council Regulation (EC) No. 44/200 1 of 22nd December 2000 on
matters, so far as that Regulation relates to the recognition or enforcement of
maintenance orders;".
16. In Article 9816 (enforcement of orders for periodical payment of money) at the
end of paragraph (11 )(b) insert—
"or Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction
and the recognition and enforcement of judgments in civil and commercial matters;".
The Merchant Shipping (Liner Conferences) Act 1982 (c. 37)
17. In section 5 of the Merchant Shipping (Liner Conferences) Act 1982 17 (liability
of members of conference to be in proportion to their responsibility), in subsection (6),
after "Civil Jurisdiction and Judgments Act 1982" insert "or Council Regulation (EC)
No. 44/200 1 of 22nd December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters". The Matrimonial and
Family Proceedings Act 1984 (c. 42)
18. The Matrimonial and Family Proceedings Act 1984 18 is amended as follows.
19. In section 15 (jurisdiction of the court), in subsection (2) —
(a) after "(implementation of certain European conventions)" insert "or by virtue of
recognition and enforcement of judgments in civil and commercial matters or"; and
(b) in paragraph (a) and (b) after "by virtue of" insert "that Regulation or".
20. In section 28 (circumstances in which a Scottish court may entertain
application for financial provision), in subsection (4) —
(b) in paragraph (a) and (b) after "by virtue of" insert "that Regulation or". The
Companies Act 1989 (c. 40)
21. In section 183 of the Companies Act 1989 19 (insolvency proceedings in other
jurisdictions), in subsection (3) after "the Civil Jurisdiction and Judgments Act 1982"
insert "or Council Regulation (EC) No. 44/200 1 of 22nd December 2000 on juris diction
and the recognition and enforcement of judgments in civil and commercial matters". The
Matrimonial and Family Proceedings (Northern Ireland) Order 1989 (S.I. 1989/677
(N.I.4))
22. In Article 19 of the Matrimonial and Family Proceedings (Northern Ir eland)
Order 198920 (jurisdiction of the court), in paragraph (2) —
(b) in sub-paragraphs (a) and (b) after "by virtue of" insert "that Regulation or".
The Companies (No. 2) (Northern Ireland) Order 1990 (S.I. 1990/1504 (N.I. 10))
23. In Article 104 of the Companies (No.2) (Northern Ireland) Order 1990 21
(insolvency proceedings in other jurisdictions) in paragraph (3) after "the Civil
judgments in civil and commercial matters". The Social Security Administration Act
1992 (c. 5)
24. In section 108 of the Social Security Administration Act 1992 22 (reduction of
expenditure on income support: certain maintenance orders to be enforceable by the
Secretary of State) in subsection (4)(a) —
(a) at the end of sub-paragraph (ii) omit "or";
(b) at the end of sub-paragraph (iii) substitute "or" for "and"; and
(c) after sub-paragraph (iii) insert— "(iv) Council Regulation (EC) No. 44/2001
judgments in civil and commercial matters; and". The Social Security Administration
(Northern Ireland) Act 1992 (c. 8) (N.I.)
25. In section 103 of the Social Security Administration (Northern Ireland) Act
23
1992 (reduction of expenditure on income support: certain maintenance orders to be
enforceable by the Department) in subsection (4)(a) —
(a) at the end of sub-paragraph (ii) omit "or";
(b) at the end of sub-paragraph (iii) substitute "or" for "and"; and
(c) after sub-paragraph (iii) insert— "(iv) the Council Regulation (EC) No.
judgments in civil and commercial matters; and". The Civil Jurisdiction and Judgments
Act 1982 (Interim Relief) Order 1997 (S.I. 199 7/302)
26. In article 2 of the Civil Jurisdiction and Judgments Act 1982 (Interim Relief)
Order 1997 24—
(a) in paragraph (a) after "Lugano Contracting State" insert "or Regulation State";
and
(b) for paragraph (b) substitute— "(b) proceedings whose subject-matter is not
within the scope of the Regulation as determined by Article 1 of the Regulation".
Explanatory Note
(This note is not part of the Order)
This Order in Council makes legislative changes needed in consequence of t he
coming into force on 1st March 2002 of Council Regulation (EC) No. 44/2001 of 22nd
December 2000 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters ("the Regulation").
The Regulation applies to all Member St ates except Denmark and to that extent
replaces the 1968 Brussels Convention on jurisdiction and the enforcement of judgments
in civil and commercial matters, to which the United Kingdom became party by an
Accession Convention signed in 1978. The Conventio ns were given the force of law in
the United Kingdom by the Civil Jurisdiction and Judgments Act 1982 ("the Act"). The
Act was later amended by the Civil Jurisdiction and Judgments Act 1991 to give the
force of law also to the 1988 Lugano Convention on jur isdiction and the enforcement of
judgments in civil and commercial matters, which made similar arrangements with a
number of non-Member States.
The Brussels Convention, in so far as it governs relationships with Denmark, and
the Lugano Convention, remain in place. The main purpose of this Order is to amend the
Act so as to preserve the current position in respect of the Brussels Convention, so far
as it relates to Denmark, and the Lugano Convention, and to make new but analogous
provision in respect of the Regulation.
In particular, the Order—
(a) contains various provisions applicable for the purposes of the Regulation; these
are, with appropriate modifications, modelled on the equivalent provisions of the Act
(Schedule 1);
(b) amends certain provisions of the Act to apply for the purposes of the
Regulation in the same way that they apply for the purposes of the Brussels and Lugano
Conventions (Schedule 2);
(c) amends the Act to clarify the relationship between the Regulation, the Brussels
Convention and the Lugano Convention (Schedule 2, paragraph 1(c));
(d) amends Schedule 4 to the Act, which contains provisions for the allocation of
intra-UK jurisdiction which previously were modelled on the Brussels Convention,
broadly so as to bring those provisions into line with the equivalent provisions of the
Regulation; an exception is jurisdiction in contractual matters, which continues to be
aligned on article 5(1) of the Convention rather than article 5(1) of the Regulation
(Schedule 2, paragraphs 3 and 4);
(e) makes similar amendments to Schedule 8 to the Act, which contains provisions
on jurisdiction in Scotland (Schedule 2, paragraphs 6 and 7);
(f) amends section 48 of the Act to allow for the making of appropriate
amendments to rules of court; this provision is commenced early, on 25th January 2002,
so that any such amendments to rules of court which rely on section 48 can be made in
time to come into force on 1st March 2002 (Schedule 2, paragraph 17); and
(g) makes various consequential amendments (Schedule 3). Part 6. Service of
Documents I General rules about service 6.1 Part 6 rules about service apply
generally
The rules in this Part apply to the service of documents, except where —
(a) any other enactment, a rule in another Part, or a practice direction makes a
different provision; or
(b) the court orders otherwise. 6.2 Methods of service —general
(1) A document may be served by any of the following methods —
(a) personal service, in accordance with rule 6.4;
(b) first class post;
(c) leaving the document at a place specified in rule 6.5;
(d) through a document exchange in accordance with the relevant practice
direction; or
(e) by fax or other means of electronic communication in accordance with the
relevant practice direction.
(Rule 6.8 provides for the court to permit service by an alternative method)
(2) A company may be served by any method permitted under this Part as an
alternative to the methods of service set out in —
(a) section 725 of the Companies Act 1985 1 (service by leaving a document at or
posting it to an authorised place);
(b) section 695 of that Act (service on overseas companies); and
(c) section 694A of that Act (service of documents on companies incorporated
outside the UK and Gibraltar and having a branch in Great Britain). 6.3 Who is to serve
(1) The court will serve a document which it has issued or prepared except where
—
(a) a rule provides that a party must serve the document in question;
(b) the party on whose behalf the document is to be served notifies the court that he
wishes to serve it himself;
(c) a practice direction provides otherwise;
(d) the court orders otherwise; or
(e) the court has failed to serve and has sent a notice of non -service to the party on
whose behalf the document is to be served in accordance with rule 6.11.
(2) Where the court is to serve a document, it is for the court to decide which of the
methods of service specified in rule 6.2 is to be used.
(3) Where a party prepares a document which is to be served by the court, that
party must file a copy for the court, and for each party to be served. 6.4 Personal
service
(1) A document to be served may be served personally, except as provided in
paragraphs (2) and (2A)
(2) Where a solicitor—
(a) is authorised to accept service on behalf of a party; and
(b) has notified the party serving the document in writing that he is s o authorised, a
document must be served on the solicitor, unless personal service is required by an
enactment, rule, practice direction or court order.
(2A) (Civil Proceedings against the Crown)
(3) A document is served personally on an individual by leaving it with that
individual.
(4) A document is served personally on a company or other corporation by leaving
it with a person holding a senior position within the company or corporation. (The
service practice direction sets out the meaning of "senior position")
(5) A document is served personally on a partnership where partners are being
sued in the name of their firm by leaving it with —
(a) a partner; or
(b) a person who, at the time of service, has the control or management of the
partnership business at its principal place of business. 6.5 Address for service
(1) Except as provided by Section III of this Part (service out of the jurisdiction) a
document must be served within the jurisdiction.
("Jurisdiction" is defined in rule 2.3)
(2) A party must give an address for service within the jurisdiction. Such address
must include a full postcode, unless the court otherwise orders,
(3) Where a party—
(a) does not give the business address of his solicitor as his address for service;
and
(b) resides or carries on business within the jurisdiction, he must give his
residence or place of business as his address for service.
(4) Any document to be served—
(a) by first class post;
(b) by leaving it at the place of service;
(c) through a document exchange; or
(d) by fax or by other means of electronic communication, must be sent or
transmitted to, or left at, the address for service given by the party to be served.
(5) Where—
(a) a solicitor is acting for the party to be served; and
(b) the document to be served is not the claim form; the party’s address for service
is the business address of his solicitor.
(6) Where—
(a) no solicitor is acting for the party to be served; and
(b) the party has not given an address for service, the document must be sent or
transmitted to, or left at, the place shown in the following table.
(7) This rule does not apply where an order made by the court under rule 6.8
(service by an alternative method) specifies where the document in question may be
served.
(Rule 42.1 provides that if the business address of his solicitor is given that
solicitor will be treated as acting for that party).
(8) (Civil proceedings against the Crown). 6.6 Service of documents on children
and patients
(1) The following table shows the person on whom a document must be served if it
is a document which would otherwise be served on a child or a patient—
(2) The court may make an order permitting a document to be served on the child
or patient, or on some person other tha n the person specified in the table in this rule.
(3) An application for an order under paragraph (2) may be made without notice.
(4) The court may order that, although a document has been served on someone
other than the person specified in the table, the document is to be treated as if it had
been properly served.
(5) This rule does not apply where the court has made an order under rule 2 1.2(3)
allowing a child to conduct proceedings without a litigation friend. 6.7 Deemed service
(1) A document which is served in accordance with these rules or any relevant
practice direction shall be deemed to be served on the day shown in the following table
—
(2) If a document is served personally—

(a) After 5 p.m., on a business day; or
(b) At any time on a Saturday, Sunday or a Bank Holiday, it will be treated as
being served on the next business day.
(3) In this rule—
"business day" means any day except Saturday, Sunday or a ba nk holiday; and
"bank holiday" includes Christmas Day and Good Friday. 6.8 Service by an
alternative method
(1) Where it appears to the court that there is a good reason to authorise service by
a method not permitted by these Rules, the court may make an o rder permitting service
by an alternative method.
(2) An application for an order permitting service by an alternative method —
(a) must be supported by evidence; and
(b) may be made without notice.
(3) An order permitting service by an alternative method must specify —
(a) the method of service; and
(b) the date when the document will be deemed to be served. 6.9 Power of court to
dispense with service
(1) The court may dispense with service of a document.
(2) An application for an order to dispense with service may be made without
notice. 6.10 Certificate of service
Where a rule, practice direction or court order requires a ce rtificate of service, the
certificate must state the details set out in the following table
6.11
Where—
(a) a document to be served by the court is served by post; and
(b) such document is returned to the court,
the court must send notification to the party who requested service stating that the
document has been returned 6.11A Notice of non -service by bailiff
Where—
(a) a document the court bailiff is to serve; and
(b) the bailiff is unable to serve it,
the court must send a notification to the party who requested service. II Special
provisions about service of the claim form 6.12 General rules about service subject to
special rules about service of claim form
The general rules about service are subject t o the special rules about service
contained in rules 6.13 to 6.16. 6.13 Service of claim form by the court —defendant's
address for service
(1) Where a claim form is to be served by the court, the claim form must include
the defendant’s address for service.
(2) For the purposes of paragraph (1), the defendant’s address for service may be
the business address of the defendant’s solicitor if he is authorised to accept service on
the defendant’s behalf but not otherwise. 6.14 Certificate of service relating to the claim
form
(1) Where a claim form is served by the court, the court must send the claimant a
notice which will include the date when the claim form is deemed to be served under
rule 6.7.
(2) Where the claim form is served by the claimant —
(a) he must file a certificate of service within 7 days of service of the claim form;
and
(b) he may not obtain judgment in default under Part 12 unless he has filed the
certificate of service. 6.15 Service of claim form by contractually agreed method
(1) Where—
(a) a contract contains a term providing that, in the event of a claim being issued in
relation to the contract, the claim form may be served by a method specifi ed in the
contract; and
(b) a claim form containing only a claim in respect of that contract is issued, the
claim form shall, subject to paragraph (2), be deemed to be served on the defendant if it
is served by a method specified in the contract.
(2) Where the claim form is served out of the jurisdiction in accordance with the
contract, it shall not be deemed to be served on the defendant unless —
(a) permission to serve it out of the jurisdiction has been granted under rule 6.20;
or
(b) it may be served without permission under rule 6.19. 6.16 Service of claim
form on agent of principal who is overseas
(1) Where—
(a) the defendant is overseas; and
(b) the conditions specified in paragraph (2) are satisfied, the court may, on an
application only, permit a claim form relating to a contract to be served on a defendant’s
agent.
(2) The court may not make an order under this rule unless it is satisfied that —
(a) the contract to which the claim relates was entered into within the jurisdiction
with or through the defendant’s agent; and
(b) at the time of the application either the agent’s authority has not been terminated
or he is still in business relations with his principal.
(3) An application under this rule—
(b) may be made without notice.
(4) An order under this rule must state a period within which the defendant must
respond to the particulars of claim.
(Rule 9.2 sets out how a defendant may respond to particulars of clai m)
(5) The power conferred by this rule is additional to the power conferred by rule
6.8 (service by an alternative method).
(6) Where the court makes an order under this rule, the claimant must send to the
defendant copies of—
(a) the order; and
(b)the claim form. III Special provisions about service out of the jurisdiction
6.17 Scope of this section
This Section contains rules about—
(a) service out of the jurisdiction;
(b) how to obtain the permission of the court to s erve out of the jurisdiction; and
(c) the procedure for serving out of the jurisdiction.
(Rule 2.3 defines "jurisdiction") 6.18 Definitions
For the purposes of this Part—
(a) "the 1982 Act" means the Civil Jurisdiction and Judgments Act 1982 3;
(b) "the Hague Convention" means the Convention on the service abroad of
judicial and extrajudicial documents in civil or commercial matters signed at the Hague
on November 15, 1965 4;
(c) "Contracting State" has the meaning given by section 1(3) of the 198 2 Act;
(d) "Convention territory" means the territory or territories of any Contracting State
to which the Brussels or Lugano Conventions (as defined in section 1(1) of the 1982
Act) apply;
(e) "Civil Procedure Convention" means the Brussels and Lugano Con ventions and
any other Convention entered into by the United Kingdom regarding service outside the
jurisdiction;
(ea) "the Service regulation" means Council Regulation (EC) No 1348/2000 of 29
May 2000 on the service in the Member States of judical and extr ajudical documents in
civil or commercial matters;
(f) "United Kingdom Overseas Territory" means those territories as set out in the
(g) "domicile" is to be determined—
(i) in relation to a Convention territory, in accordance with sections 41 to 46 of the
1982 Act;
(ii) in relation to a Regulation State, in accordance with the Judgments Regulation
and paragraphs 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order
2001;
(h) "claim form" includes petition and application notice;
(i) "claim" includes petition and application.
(j) "the Judgments Regulation" means Council Regulation (EC) No. 44/200 1 of
22nd December 2000 on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters; and
(k) "Regulation State" has the same meaning as "Member State" in the Judgments
Regulation, that is all Member States except Denmark.
(Rule 6.30 provides that where an application notice is to be served out of the
jurisdiction under this Part, rules 6.21(4), 6.22 and 6.23 do not apply) 6.19 Service out
of the jurisdiction where the permission of the court is not required
(1) A claim form may be served on a defendant out of the jurisdiction where each
claim included in the claim form made against the defendant to be served is a claim
which the court has power to determine under the 1982 Act and —
(a)no proceedings between the parties concerning the same claim are pending in
the courts of any other part of the United Kingdom or any other Convention territory; and
(b)
(i) the defendant is domiciled in the United Kingdom or in any Convention
territory;
(ii) Article 16 of Schedule 1 or 3C to the 1982 Act, or paragraph 11 of Sche dule 4
to that Act, refers to the proceedings; or
(iii) the defendant is a party to an agreement conferring jurisdiction to which
Article 17 of Schedule 1 or 3C to the 1982 Act, or paragraph 12 of Schedule 4 to that
Act, refers.
(1A) A claim form may be served on a defendant out of the jurisdiction where each
which the court has power to determine under the Judgments Regulation and —
(a)no proceedings between the parties concerning the same claim are pending in
the courts of any other part of the United Kingdom or any other Regulation State; and
(b)
(i) the defendant is domiciled in the United Kingdom or in any Regulation State;
(ii) Article 22 of the Judgments Regulation refers to the proceedings; or
(iii) the defendant is a party to an agreement conferring jurisdiction to which
Article 23 of the Judgments Regulation refers.
(2) A claim form may be served on a defendant out of th e jurisdiction where each
which, under any other enactment, the court has power to determine, although —
(a) the person against whom the claim is made is not within the ju risdiction; or
(b) the facts giving rise to the claim did not occur within the jurisdiction.
(3) Where a claim form is to be served out of the jurisdiction under this rule, it
must contain a statement of the grounds on which the claimant is entitled to s erve it out
of the jurisdiction. 6.20 Service out of the jurisdiction where the permission of the court
is required
In any proceedings to which rule 6.19 does not apply, a claim form may be served
out of the jurisdiction with the permission of the court if —
General Grounds
(1) a claim is made for a remedy against a person domiciled within the
jurisdiction.
(2) a claim is made for an injunction ordering (GL) the defendant to do or refrain
from doing an act within the jurisdiction.
(3) a claim is made against someone on whom the claim form has been or will be
served (otherwise than in reliance on this paragraph) and —
(a) there is between the claimant and that person a real issue which it is reasonable
for the court to try; and
(b) the claimant wishes to serve the claim form on another person who is a
necessary or proper party to that claim.
(3A) a claim is a Part 20 claim and the person to be served is a necessary or
proper party to the claim against the Part 20 claimant.
Claims for interim remedies
(4) a claim is made for an interim remedy under section 25(1) of the 1982 Act. 5
Claims in relation to contracts
(5) a claim is made in respect of a contract where the contract —
(a) was made within the jurisdiction;
(b) was made by or through an agent trading or residing within the jurisdiction;
(c) is governed by English law; or
(d) contains a term to the effect that the court shall have jurisdiction to determine
any claim in respect of the contract.
(6) a claim is made in respect of a breach of contract committed within the
jurisdiction.
(7) a claim is made for a declaration that no contract exists where, if the contract
was found to exist, it would comply with the conditions set out in paragraph (5).
Claims in tort
(8) a claim is made in tort where—
(a) damage was sustained within the jurisdiction; or
(b) the damage sustained resulted from an act committed within the jurisdiction.
Enforcement
(9) a claim is made to enforce any judgment or arbitral awa rd.
Claims about property within the jurisdiction
(10) the whole subject matter of a claim relates to property located within the
jurisdiction.
Claims about trusts etc.
(11) a claim is made for any remedy which might be obtained in proceedings to
execute the trusts of a written instrument where —
(a) the trusts ought to be executed according to English law; and
(b) the person on whom the claim form is to be served is a trustee of the trusts.
(12) a claim is made for any remedy which might be obtained in proceedings for
the administration of the estate of a person who died domiciled within the jurisdiction.
(13) a claim is made in probate proceedings which includes a claim for the
rectification of a will.
(14) a claim is made for a remedy against the defendant as constructive trustee
where the defendant’s alleged liability arises out of acts committed within the
jurisdiction.
(15) a claim is made for restitution where the defendant’s alleged liabilit y arises
out of acts committed within the jurisdiction.
Claims by HM Revenue and Customs
(16) a claim is made by the Commissioners for HM Revenue and Customs relating
to duties or taxes against a defendant not domiciled in Scotland or Northern Ireland.
Claim for costs order in favour of or against third parties
(17) a claim is made by a party to proceedings for an order that the court exercise
its power under section 51 of the Supreme Court Act 1981 6 to make a costs order in
favour of or against a person who is not a party to those proceedings.
(Rule 48.2 sets out the procedure where the court is considering whether to
exercise its discretion to make a costs order in favour of or against a non -party)
Admiralty claims
(17A) a claim is—
(a) in the nature of salvage and any part of the services took place within the
jurisdiction; or
(b) to enforce a claim under section 153, 154 or 175 of the Merchant Shipping Act
1995(a).
Claims under various enactments
(18) a claim is made under an enactment specified in the relevant practice
direction. 6.21 Application for permission to serve claim form out of jurisdiction
(1) An application for permission under rule 6.20 must be supported by written
evidence stating—
(a) the grounds on which the application is made and the paragraph or paragraphs
of rule 6.20 relied on;
(b) that the claimant believes that his claim has a reasonable prospect of success;
and
(c) the defendant’s address or, if not known, in what place or country the defendant
is, or is likely, to be found.
(2) Where the application is made in respect of a claim referred to in rule 6.20(3),
the written evidence must also state the grounds on which the witness believes that there
is between the claimant and the person on whom the claim form has been, or will be
served, a real issue which it is reasonable for the court to try.
(2A) The court will not give permission unless satisfied that England and Wales is
the proper place in which to bring the claim.
(3) Where—
(a) the application is for permission to serve a claim form in Scotland or Northern
Ireland; and
(b) it appears to the court that the claimant may also be entitled to a remedy there,
the court, in deciding whether to give permission, shall —
(i) compare the cost and convenience of proceeding there or in the jurisdiction; and
(ii)(where relevant) have regard to the powers and jurisdiction of the Sheriff court
in Scotland or the county courts or courts of summary jurisdiction in Northern Ireland.
(4) An order giving permission to serve a claim form out of the jurisdiction must
specify the periods within which the defendant may —
(a) file an acknowledgment of service;
(b) file or serve an admission; and
(c) file a defence.
(Part 11 sets out the procedure by which a defendant may dispute the court’s
jurisdiction)
(The second practice direction to this Part sets out how the periods referred to in
paragraphs (a), (b) and (c) are calculated.) 6.22 Period for acknowledging service or
admitting the claim where the claim form is served out of the jurisdiction under rule
6.19
(1) This rule sets out the period for filing an acknowledgment of service or filing
or serving an admission where a claim form has been served out of the jurisdiction
under rule 6.19.
(Part 10 contains rules about the acknowledgment of service and Part 14 contains
rules about admissions)
(2) If the claim form is to be served under rule 6.19(1) or (1A) in Scotland,
Northern Ireland or in the European territory of another Contracting State or Regulation
State the period is—
(a) where the defendant is served with a claim form which states that particulars of
claim are to follow, 21 days after the service of the particulars of claim; and
(b) in any other case, 21 days after service of the claim form.
(3) If the claim form is to be served under rule 6.19(1) in any other territory of a
Contracting State the period is—
(a) where the defendant is served with a claim form which states that partic ulars of
claim are to follow, 31 days after the service of the particulars of claim; and
(4) If the claim form is to be served under —
(a) rule 6.19(1) or (1A) in a country not referred to in paragraphs (2) or (3); or
(b) rule 6.19(2), the period is set out in the relevant practice direction. 6.23 Period
for filing a defence where the claim form is served out of the jurisdiction under rule
6.19
(1) This rule sets out the period for filing a defence where a claim form has been
served out of the jurisdiction under rule 6.19.
(Part 15 contains rules about the defence)
(2) If the claim form is to be served under rule 6.19(1) or (1A) in Scotland,
Northern Ireland or in the European territory of another Contracting State or Regulation
State the period is—
(a) 21 days after service of the particulars of claim; or
(b) if the defendant files an acknowledgment of service, 35 days after service of
the particulars of claim.
(3) If the claim form is to be served under rule 6.19(1) in any other territory of a
Contracting State the period is—
(a) 31 days after service of the particulars of claim; or
(b) if the defendant files an acknowledgment of se rvice, 45 days after service of
the particulars of claim.
(4) If the claim form is to be served under —
(a) rule 6.19(1) or (1A) in a country not referred to in paragraphs (2) or (3); or
(b) rule 6.19(2), the period is set out in the relevant practice direction. 6.24
Method of service—general provisions
(1) Where a claim form is to be served out of the jurisdiction, it may be served by
any method—
(a) permitted by the law of the country in w hich it is to be served;
(b) provided for by —
(i) rule 6.25 (service through foreign governments, judicial authorities and British
Consular authorities);
(ii)rule 6.26A (service in accordance with the Service Regulation); or
(iii) rule 6.27 (service on a State); or
(c) permitted by a Civil Procedure Convention.
(2) Nothing in this rule or in any court order shall authorise or require any person
to do anything in the country where the claim form is to be served which is against the
law of that country. 6.25 Service through foreign governments, judicial authorities and
British Consular authorities
(1) Where a claim form is to be served on a defenda nt in any country which is a
party to the Hague Convention, the claim form may be served —
(a) through the authority designated under the Hague Convention in respect of that
country; or
(b) if the law of that country permits —
(i) through the judicial authorities of that country, or
(ii) through a British Consular authority in that country.
(2) Where—
(a) paragraph (4) (service in Scotland etc., other than under the Hague Convention)
does not apply; and
(b) a claim form is to be served on a defendant in any country which is a party to a
Civil Procedure Convention (other than the Hague Convention) providing for service in
that country, the claim form may be served, if the law of that country permits —
(i) through the judicial authorities of that country; or
(ii) through a British Consular authority in that country (subject to any provisions
of the applicable convention about the nationality of persons who may be served by
such a method).
(3) Where—
(a) paragraph (4) (service in Scotland etc., other than under the Hague Convention)
does not apply; and
(b) a claim form is to be served on a defendant in any country with respect to
which there is no Civil Procedure Convention providing for service in that coun try, the
claim form may be served, if the law of that country so permits —
(i) through the government of that country, where that government is willing to
serve it; or
(ii) through a British Consular authority in that country.
(4) Except where a claim form is to be served in accordance with paragraph (1)
(service under the Hague Convention), the methods of service permitted by this rule are
not available where the claim form is to be served in —
(a) Scotland, Northern Ireland, the Isle of Man or the Channel Islands;
(b) any Commonwealth State; or
(c) any United Kingdom Overseas Territory.
(5) This rule does not apply where service is to be effected in accordance with the
Service Regulation. 6.26 Procedure where service is to be through foreign governments,
judicial authorities and British Consular authorities
(1) This rule applies where the claimant wishes to serve the claim form through —
(a) the judicial authorities of the country where the claim form is to be served;
(b) a British Consular authority in that country;
(c) the authority designated under the Hague Convention in respect of that country;
or
(d) the government of that country.
(2) Where this rule applies, the claimant must file —
(a) a request for service of the claim form by the method in paragraph (1) that he
has chosen;
(b) a copy of the claim form;
(c) any translation required under rule 6.28; and
(d) any other documents, copies of documents or translations required by the
(3) When the claimant files the documents specified in paragraph (2), the court
officer will—
(a) seal (GL) the copy of the claim form; and
(b) forward the documents to the Senior Master.
(4) The Senior Master will send documents forwarded under this rule —
(a) where the claim form is being served through the authority designated under the
Hague Convention, to that authority; or
(b) in any other case, to the Foreign and Commonwealth Office with a request that
it arranges for the claim to be served by the method indicated in the request for service
filed under paragraph (2) or, where that request indicates alternative methods, by the
most convenient method.
(5) An official certificate which—
(a) states that the claim form has been served in accordance with this rule either
personally, or in accordance with the law of the country in which service was effected;
(b) specifies the date on which the claim form was served; and
(c) is made by—
(i) a British Consular authority in the country where the claim form was served;
(ii) the government or judicial authorities in that country; or
(iii) any other authority designated in respect of that country under the Hague
Convention, shall be evidence of the facts stated in the certificate.
(6) A document purporting to be an official certificate under paragraph (5) shall be
treated as such a certificate, unless it is proved not to be.
(7) This rule does not apply where service is to be effected in accordance with the
Service Regulation. 6.26A Service in accordance with the Service Regulation
(1) This rule applies where a claim form is to be served in accordance with the
Service Regulation.
(2) The claimant must file the claim form and any translations or other documents
required by the Service Regulation.
(3) When the claimant files the documents referred to in paragraph (2), the court
officer will—
(a) seal (GL) the copy of the claim form; and
(b) forward the documents to the Senior Master.
(4) Rule 6.31 does not apply. 6.27 Service of claim form on State where court
permits service out of the jurisdiction
(1) This rule applies where a claimant wishes to serve the claim form on a State.
(2) The claimant must file in the Central Office of the Royal Courts of Justice —
(a) a request for service to be arranged by the Foreign and Commonwealth Office;
(b) a copy of the claim form; and
(c) any translation required under rule 6.28.
(3) The Senior Master will send documents filed under this rule to the Foreign and
Commonwealth Office with a request that it arranges for the claim form to be served.
(4) An official certificate by the Foreign and Commonwealth Office stating that a
claim form has been duly served on a specified date in accordance with a request made
under this rule shall be evidence of that fact.
(5) A document purporting to be such a certificate shall be treated as such a
certificate, unless it is proved not to be.
(6) Where—
(a) section 12(6) of the State Immunity Act 1978 7 applies; and
(b) the State has agreed to a method of service other than through the Foreign and
Commonwealth Office,
the claim may be served either by the method agreed or in accordance with this
rule. (Section 12(6) of the State Immunity Act 1978 provides that section 12(1) of that
Act, which prescribes a method for serving documents on a State, does not prevent the
service of a claim form or other document in a manner to which the State has agreed)
(7) In this rule "State" has the meaning given by section 14 of the State Immunity
Act 1978. 6.28 Translation of claim form
(1) Except where paragraph (4) or (5) applies, every copy of the claim form filed
under rule 6.26 (service through judicial authorities, foreign governments etc.) or 6.27
(service on State) must be accompanied by a translation of the claim form.
(2) The translation must be—
(a) in the official language of the country in which it is to be served; or
(b) if there is more than one official language of that country, in any official
language which is appropriate to the place in the country where the claim form i s to be
served.
(3) Every translation filed under this rule must be accompanied by a statement by
the person making it that it is a correct translation, and the statement must include —
(a) the name of the person making the translation;
(b) his address; and
(c) his qualifications for making a translation.
(4) The claimant is not required to file a translation of a claim form filed under
rule 6.26 (service through judicial authorities, foreign governments etc.) where the
claim form is to be served—
(a) in a country of which English is an official language; or
(b) on a British subject,
unless a Civil Procedure Convention expressly requires a translation.
(5) The claimant is not required to file a translation of a claim form filed under
rule 6.27 (service on State) where English is an official language of the State where the
claim form is to be served. 6.29 Undertaking to be responsible for expenses of the
Foreign and Commonwealth Office
Every request for service filed under rule 6.26 (service through judicial
authorities, foreign governments etc.) or rule 6.27 (service on State) must contain an
undertaking by the person making the request —
(a) to be responsible for all expenses incurred by the Foreign and Commonwealth
Office or foreign judicial authority; and
(b) to pay those expenses to the Foreign and Commonwealth Office or foreign
judicial authority on being informed of the amount. 6.30 Service of documents other than
the claim form
(1) Where an application notice is to be served out of the jurisdiction under this
Section of this Part—
(a) rules 6.2 1(4), 6.22 and 6.23 do not apply; and
(b) where the person on whom the application notice has been served is not a party
to proceedings in the jurisdiction in which the application is made, that person may
make an application to the court under rule 11(1) as if he were a defendant and rule
11(2) does not apply.
(Rule 6.21(4) provides that an order giving permission to serve a claim for m out of
the jurisdiction must specify the periods within which the defendant may (a) file an
acknowledgment of service, (b) file or serve an admission, and (c) file a defence.)
(Rule 6.22 provides rules for the period for acknowledging service or admittin g
the claim where the claim form is served out of the jurisdiction under rule 6.19)
(Rule 6.23 provides rules for the period for filing a defence where the claim form
is served out of the jurisdiction under rule 6.19)
(The practice direction supplementing this Section of this Part provides that where
an application notice is to be served out of the jurisdiction in accordance with this
Section of this Part, the court must have regard to the country in which the applicati on
notice is to be served in setting the date for the hearing of the application and giving any
direction about service of the respondent’s evidence)
(Rule 11(1) provides that a defendant may make an application to the court to
dispute the court’s jurisdiction to try the claim or argue that the court should not exercise
its jurisdiction. Rule 11(2) provides that a defendant who wishes to make such an
application must first file an acknowledgment of service in accordance with Part 10)
(2) Unless paragraph (3) applies, where the permission of the court is required for
a claim form to be served out of the jurisdiction the permission of the court must also be
obtained for service out of the jurisdiction of any other document to be served in the
proceedings.
(3) Where—
(a) the court gives permission for a claim form to be served out of the jurisdiction;
and
(b) the claim form states that particulars of claim are to follow, the permission of
the court is not required to serve the particulars of claim out of the jurisdiction. 6.31
Proof of service
Where—
(a) a hearing is fixed when the claim is issued;
(b) the claim form is served on a defendant out of the jurisdiction; and
(c) that defendant does not appear at the hearing, the claimant may take no further
steps against that defendant until the claimant files written evidence showing that the
claim form has been duly served. IV Service of foreign process 6.32 Scope and
definitions
(1) This Section of this Part—
(a) applies to the service in England or Wales of any court process in connection
with civil or commercial proceedings in a foreign court or tribunal; but
(b) does not apply where the Service Regulation applies.
(The Service Regulation is annexed to the relevant practice direction)
(2) In this Section—
(a) "convention country" —
(i) means a foreign country in relation to which there is a civil procedure
convention providing for service in that country of process of the High Court; and
(ii) includes a country which is a party to the Convention on the Service Abroad of
Judicial and Extra-Judicial Documents in Civil or Commercial Matters signed at the
Hague on 15 November 1965; and
(b) "process server" means—
(i) a process server appointed by the Lord Chancellor to serve documents to which
this Section applies, or
(ii)his authorised agent. 6.33 Request for service
Process will be served where the Senior Master receives —
(a) a written request for service —
(i) where the foreign court or tribunal is in a convention country, from a consular
or other authority of that country; or
(ii) from the Secretary of State for Foreign and Commonwealth Affairs, with a
recommendation that service should be effected;
(b) a translation of that request into English;
(c) two copies of the process to be served; and
(d) unless the foreign court or tribunal certifies that the person to be served
understands the language of the process, two copies of a translation of it into English.
6.34 Method of service
The process must be served as directed by the Senior Master. 6.35 After service
(1) The process server must—
(a) send the Senior Master a copy of the process, and
(i) proof of service; or
(ii) a statement why the process could not be served; and
(b) if the Senior Master directs, specify the costs incurred in serving or attempting
to serve the process.
(2) The Senior Master will send the following documents to the person who
requested service—
(a) a certificate, sealed with the seal of the Supreme Court for use out of the
jurisdiction, stating—
(i) when and how the process was served or the reason why it has not been served;
and
(ii) where appropriate, an amount certified by a costs judge to be the costs of
serving or attempting to serve the process; and
(b) a copy of the process. Part 7. How to Start Proceedings—The Claim Form
7.1 Where to start proceedings
Restrictions on where proceedings may be started are set out in the relevant
practice direction. 7.2 How to start proceedings
(1) Proceedings are started when the court issues a claim form at the request of the
claimant.
(2) A claim form is issued on the date entered on the form by the court. (Part
16 sets out what the claim form must include) 7.5 Service of a claim form
(1) After a claim form has been issued, it must be served on the defendant.
(2) The general rule is that a claim form must be served within 4 months after the
date of issue.
(3) The period for service is 6 months where the claim form is to be served out of
the jurisdiction. 7.6 Extension of time for serving a claim form
(1) The claimant may apply for an order extending the period within which the
claim form may be served.
(2) The general rule is that an application to extend the time for service must be
made—
(a) within the period for serving the claim form specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service
specified by that order.
(3) If the claimant applies for an order to extend the time for service of the claim
form after the end of the period specified by rule 7.5 or by an order made under this
rule, the court may make such an order only if —
(a) the court has been unable to serve the claim form; or
(b) the claimant has taken all reasonable steps to serve the claim form but ha s been
unable to do so; and
(c) in either case, the claimant has acted promptly in making the application.
(4) An application for an order extending the time for service —
(b) may be made without notice. 7.7 Application by defendant for service of claim
form
(1) Where a claim form has been issued against a defendant, but has not yet been
served on him, the defendant may serve a notice on the claimant requiring him to serve
the claim form or discontinue the claim within a period specified in the notice.
(2) The period specified in a notice served under paragraph (1) must be at least 14
days after service of the notice.
(3) If the claimant fails to comply with the notice, the court may, on the application
of the defendant—
(a) dismiss the claim; or
(b) make any other order it thinks just. Part 8. Alternative Procedure for Claims
8.1 Types of claim in which Part 8 procedure may be followed
(1) The Part 8 procedure is the procedure set out in this Part.
(2) A claimant may use the Part 8 procedure where —
(a) he seeks the court’s decision on a question which is unlikely to involve a
substantial dispute of fact; or
(b) paragraph (6) applies.
(3) The court may at any stage order the claim to continue as if the claimant had not
used the Part 8 procedure and, if it does so, the court may give any directions it
considers appropriate.
(4) Paragraph (2) does not apply if a practice direction provides that the Part 8
procedure may not be used in relation to the type of claim in question.
(5) Where the claimant uses the Part 8 procedure he may not obtain default
judgment under Part 12.
(6) A rule or practice direction may, in relation to a specified type of proceedings
—
(a) require or permit the use of the Part 8 procedure; and
(b) disapply or modify any of the rules set out in this Part as they apply to those
proceedings. 8.2 Contents of the claim form
Where the claimant uses the Part 8 procedure the claim form must state —
(a) that this Part applies;
(b)
(i) the question which the claimant wants the court to decide; or
(ii) the remedy which the claimant is seeking and the legal basis for the claim to
that remedy;
(c) if the claim is being made under an enactment, what that enactment is;
(d) if the claimant is claiming in a representative capacity, what that capacity is;
and
(e) if the defendant is sued in a representative capacity, what that capacity is. 8.2A
Issue of claim form without naming defendants 8.3 Acknowledgment of service
(1) The defendant must—
(a) file an acknowledgment of service in the relevant practice form not more than
14 days after service of the claim form; and
(b) serve the acknowledgment of service on the claimant and any other party.
(2) The acknowledgment of service must state —
form
(a) whether the defendant contests the claim; and
(b) if the defendant seeks a different remedy from that set out in the claim form,
what that remedy is.
(3) The following rules of Part 10 (acknowledgment of service) apply —
(a) rule 10.3(2) (exceptions to the period for filing an acknowledgment of service);
and
(b) rule 10.5 (contents of acknowledgment of service).
(4) Omitted 8.9 Modifications to the general rules
Where the Part 8 procedure is followed —
(a) provision is made in this Part for the matters which must be stated in the claim
form and the defendant is not required to file a defence and therefore —
(i) Part 16 (statements of case) does not apply;
(ii) Part 15 (defence and reply) does not apply;
(iii) any time limit in these Rules which prevents the parties from taking a step
before a defence is filed does not apply;
(iv) the requirement under rule 7.8 to serve on the defendant a form for defending
the claim does not apply;
(b) the claimant may not obtain judgment by request on an admission and therefore
—
(i) rules 14.4 to 14.7 do not apply; and
(ii) the requirement under rule 7.8 to serve on the defendant a form for admitting
the claim does not apply; and
(c) the claim shall be treated as allocated to the multi -track and therefore Part 26
does not apply. Part 10. Acknowledgment of Service 10.1 Acknowledgment of service
(1) This Part deals with the procedure for filing an acknowledgment of service.
(2) Where the claimant uses the procedure set out in Part 8 (alternative procedure
for claims) this Part applies subject to the modifications set out in rule 8.3.
(3) A defendant may file an acknowledgment of service if —
(a) he is unable to file a defence with in the period specified in rule 15.4; or
(b) he wishes to dispute the court’s jurisdiction. 10.2 Consequence of not filing an
acknowledgment of service
If
(a) a defendant fails to file an acknowledgment of service within the period
specified in rule 10.3; and
(b) does not within that period file a defence in accordance with Part 15 or serve
or file an admission in accordance with Part 14, the claimant may obtain default
judgment if Part 12 allows it. 10.3 The period for filing an acknowledgment of service
(1) The general rule is that the period for filing an acknowledgment of service is —
(a) where the defendant is served with a claim form which states that particulars of
claim are to follow, 14 days after service of the particulars of claim; and
(2) The general rule is subject to the following rules —
(a) rule 6.22 (which specifies how the period for filing a n acknowledgment of
service is calculated where the claim form is served out of the jurisdiction); and
(b) rule 6.16(4) (which requires the court to specify the period for responding to
the particulars of claim when it makes an order under that rule).
(c) rule 6.21(4) (which requires the court to specify the period within which the
defendant may file an acknowledgment of service calculated by reference to Practice
Direction 6B when it makes an order giving permission to serve a clai m form out of the
jurisdiction). 10.4 Notice to claimant that defendant has filed an acknowledgment of
service
On receipt of an acknowledgment of service, the court must notify the claimant in
writing. 10.5 Contents of acknowledgment of service
(1) An acknowledgment of service must—
(a) be signed by the defendant or his legal representative; and
(b) include the defendants’ address for service. Part 11. Disputing the Court's
Jurisdiction 11 Procedure for disputing the court's jurisdiction
(1) A defendant who wishes to—
(a) dispute the court’s jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction may apply to the court
for an order declaring that it has no such jurisdiction or should not exercise any
jurisdiction which it may have.
(2) A defendant who wishes to make such an application must first file an
acknowledgment of service in accordance with Part 10.
(3) A defendant who files an acknowledgment of service does not, by doing so,
lose any right that he may have to dispute the court’s jurisdiction.
(4) An application under this rule must—
(a) be made within 14 days after filing an acknowledgment of service; and
(b) be supported by evidence.
(5) If the defendant—
(a) files an acknowledgment of service; and
(b) does not make such an application within the period specified in paragraph (4),
he is to be treated as having accepted that the court has jurisdiction to try the claim.
(6) An order containing a declaration tha t the court has no jurisdiction or will not
exercise its jurisdiction may also make further provision including —
(a) setting aside the claim form;
(b) setting aside service of the claim form;
(c) discharging any order made before the claim was commenced or before the
claim form was served; and
(d) staying(GL) the proceedings.
(7) If on an application under this rule the court does not make a declaration —
(a) the acknowledgment of service shall cease to have effect; and
(b) the defendant may file a further acknowledgment of service within 14 days or
such other period as the court may direct.
(8) If the defendant files a further acknowledgment of service in accordance with
paragraph (7)(b) he shall be treated as having accepted that the court has jurisdiction to
try the claim.
(9) If a defendant makes an application under this rule, he must file and serve his
written evidence in support with the application notice, but he need not before the
hearing of the application file—
(a) in a Part 7 claim, a defence; or
(b) in a Part 8 claim, any other written evidence.
(10) Omitted Part 20. Counterclaims and Other Additional Claims 20.1
Purpose of Part 20
The purpose of Part 20 is to enable Part 20 claims to be managed in the most
convenient and effective manner. 20.2 Meaning of “Part 20 claim”
(1) A Part 20 claim is any claim other than a claim by a claimant against a
defendant and includes—
(a) a counterclaim by a defendant against the claimant or against the claimant and
some other person;
(b) a claim by a defendant against any person (whether or not already a party) for
contribution(GL) or indemnity(GL) or some other remedy; and
(c) where a Part 20 claim has been made against a person who is not already a
party, any claim made by that person against any other person (whether or not already a
party).
(2) In this Part "Part 20 claimant" means a person who makes a Part 20 claim. 20.3
Part 20 claim to be treated as a claim for the purposes of the Rules
(1) A Part 20 claim shall be treated as if it were a claim for the purposes of these
Rules, except as provided by this Part.
(2) The following rules do not apply to Part 20 claims —
(a) rules 7.5 and 7.6 (time within which a claim form may be served);
(b) rule 16.3(5) (statement of value where claim to be issued in the High Court);
and
(c) Part 26 (case management—preliminary stage).
(3) Part 12 (default judgment) applies to a Part 20 claim only if it is a
counterclaim.
(4) With the exception of—
(a) rules 14.1(1) and 14.1(2) (which provide that a party may admit the truth of
another party’s case in writing); and
(b) rule 14.(3) (admission by notice in writing —application for judgment), which
apply to all Part 20 claims, Part 14 (admissions) applies to a Part 20 claim only if it is a
counterclaim.
(Rule 12.3(2) sets out how to obtain judgment in default of defence where the Part
20 claim is a counterclaim against the claimant, and rule 20.11 makes special provision
for default judgment in some categories of Part 20 claims) 20.4 Defendant's
counterclaim against the claimant
(1) A defendant may make a counterclaim against a claimant by filing particulars of
the counterclaim.
(2) A defendant may make a counterclaim against a claimant —
(a) without the court’s permission if he files it with his defence; or
(b) at any other time with the court’s permission.
(Part 15 makes provision for a defence to a claim and applies to a defence to a
counterclaim by virtue of rule 20.3)
(3) Part 10 (acknowledgment of servic e) does not apply to a claimant who wishes
to defend a counterclaim. 20.5 Counterclaim against a person other than the claimant
(1) A defendant who wishes to counterclaim against a person other than the
claimant must apply to the court for an order that that person be added as defendant to
the counterclaim.
(2) An application for an order under paragraph (1) may be made without notice
unless the court directs otherwise.
(3) Where the court makes an order under paragraph (1), it will give directions as
to the management of the case. 20.8 Service of a Part 20 claim form
(1) Where a Part 20 claim may be made without the court’s permission, the Part 20
claim form must—
(a) in the case of a counterclaim against an existing party only, be served on every
other party when a copy of the defence is served;
(b) in the case of any other Part 20 claim, be served on the person against whom it
is made within 14 days after the date on which the Part 20 claim is issued by the court.
(2) Paragraph (1) does not apply to a claim for contribution (GL) or indemnity(GL)made
in accordance with rule 20.6.
(3) Where the court gives permission to make a Part 20 claim it will at the same
time give directions as to the service of the Part 20 claim. 20.10 Effect of service of a
Part 20 claim
(1) A person on whom a Part 20 claim is served becomes a party to the
proceedings if he is not a party already.
(2) When a Part 20 claim is served on an existing party for the purpose of requiring
the court to decide a question against that party in a further capacity, that party also
becomes a party in the further capacity specified in the Part 20 claim. Part 61.
Admiralty Claims 61.1 Scope and interpretation
(1) This Part applies to admiralty claims.
(2) In this Part—
(a) "admiralty claim" means a claim within the Admiralty jurisdiction of the High
Court as set out in section 20 of the Supreme Court Act 1981 8;
(b) "the Admiralty Court" means the Admiralty Court of the Queen’s Bench
Division of the High Court of Justice;
(c) "claim in rem" means a claim in an admiralty action in rem;
(d) "collision claim" means a claim within section 20(3)(b) of the Supreme Court
Act 1981;
(e) "limitation claim" means a claim under the Merchant Shipping Act 1995 9 for
the limitation of liability in connection with a ship or other property;
(f) "salvage claim" means a claim —
(i) for or in the nature of salvage;
(ii) for special compensation under Article 14 of Schedule 11 to the Merchant
Shipping Act 1995;
(iii) for the apportionment of salvage; and
(iv) arising out of or connected with any contract for salvage services;
(g)"caution against arrest" means a caution entered in the Register under rule 61.7;
(h)"caution against release" means a caution entered in the Register under rule
61.8;
(i) "the Register" means the Register of cautions against arrest and release which is
open to inspection as provided by the practice direction;
(j) "the Marshal" means the Admiralty Marshal;
(k)"ship" includes any vessel used in navigation; and
(l) "the Registrar" means the Queen’s Bench Master with responsibility for
Admiralty claims.
(3) Part 58 (Commercial Court) applies to claims in the Admiralty Court except
where this Part provides otherwise.
(4) The Registrar has all the powers of the Admiralty judge except where a rule or
practice direction provides otherwise. 61.2 Admiralty claims
(1) The following claims must be started in the Admiralty Court —
(a) a claim—
(i) in rem;
(ii) for damage done by a ship;
(iii)concerning the ownership of a ship;
(iv) under the Merchant Shipping Act 1995;
(v) for loss of life or personal injury specified in section 20(2)(f) of the Supreme
Court Act 1981;
(vi) by a master or member of a crew for wages;
(vii) in the nature of towage; or
(viii) in the nature of pilotage;
(b) a collision claim;
(c) a limitation claim; or
(d) a salvage claim.
(2) Any other admiralty claim may be started in the Admiralty Court.
(3) Rule 30.5(3) applies to claims in the Admiralty Court except that the Admiralty
Court may order the transfer of a claim to —
(a) the Commercial list;
(b) a Mercantile Court;
(c) the Mercantile list at the Central London County Court; or
(d) any other appropriate court. 61.3 Claims in rem
(1) This rule applies to claims in rem.
(2) A claim in rem is started by the issue of an in rem claim form as set out in the
practice direction.
(3) Subject to rule 61.4, the particulars of claim must —
(a) be contained in or served with the claim form; or
(b) be served on the defendant by the claimant within 75 days after service of the
claim form.
(4) An acknowledgment of service must be filed within 14 days after service of the
claim form.
(5) The claim form must be served—
(a) in accordance with the practice direction; and
(b) within 12 months after the date of issue and rules 7.5 and 7.6 are modified
accordingly.
(6) If a claim form has been issued (whether served or not), any person who
wishes to defend the claim may file an acknowledgment of service. 61.4 Special
provisions relating to collision claims
(1) This rule applies to collision claims.
(2) A claim form need not contain or be followed by particulars of claim and rule
7.4 does not apply.
(3) An acknowledgment of service must be filed.
(4) A party who wishes to dispute the court’s jurisdiction must make an application
under Part 11 within 2 months after filing his acknowledgment of service.
(5) Every party must—
(a) within 2 months after the defendant files the acknowledgment of service; or
(b) where the defendant applies under Part 11, within 2 months after the defendant
files the further acknowledgment of service, file at the court a completed collision
statement of case in the form specified in the practice direction.
(6) A collision statement of case must be—
(a) in the form set out in the practice direction; and
(b) verified by a statement of truth.
(7) A claim form in a collision claim may not be served out of the jurisdiction
unless—
(a) the case falls within section 22(2)(a), (b) or (c) of the Supreme Court Act
10
1981 ; or
(b) the defendant has submitted to or agreed to submit to the jurisdiction; and the
court gives permission in accordance with Section III of Part 6.
(8) Where permission to serve a claim form out of the jurisdiction is given, the
court will specify the period within which the defendant may file an acknowledgment of
service and, where appropriate, a collision statement of case.
(9) Where, in a collision claim in rem ("the original claim") —
(a)
(i) a Part 20 claim; or
(ii) a cross claim in rem arising out of the same collision or occurrence is made;
and
(b)
(i) the party bringing the original claim has caused the arrest of a ship or has
obtained security in order to prevent such arrest; and
(ii) the party bringing the Part 20 claim or cross claim is unable to arrest a ship or
otherwise obtain security,
the party bringing the Part 20 claim or cross claim may apply to the court to stay
the original claim until sufficient security is given to satisfy any judgment that may be
given in favour of that party.
(10) The consequences set out in paragraph (11) apply where a party to a claim to
establish liability for a collision claim (other than a claim for loss of life or personal
injury)—
(a) makes an offer to settle in the form set out in paragraph (12) not less than 21
days before the start of the trial;
(b) that offer is not accepted; and
(c) the maker of the offer obtains at trial an apportionment equal to or more
favourable than his offer.
(11) Where paragraph (10) applies the parties will, unless the court considers it
unjust, be entitled to the following costs—
(a) the maker of the offer will be entitled to —
(i) all his costs from 21 days after the offer was ma de; and
(ii) his costs before then in the percentage to which he would have been entitled
had the offer been accepted; and
(b) all other parties to whom the offer was made —
(i) will be entitled to their costs up to 21 days after the offer w as made in the
percentage to which they would have been entitled had the offer been accepted; but
(ii) will not be entitled to their costs thereafter.
(12) An offer under paragraph (10) must be in writing and must contain —
(a) an offer to settle liability at stated percentages;
(b) an offer to pay costs in accordance with the same percentages;
(c) a term that the offer remain open for 21 days after the date it is made; and
(d) a term that, unless the court orders otherwise, on expiry of that perio d the offer
remains open on the same terms except that the offeree should pay all the costs from that
date until acceptance. 61.5 Arrest
(1) In a claim in rem—
(a) a claimant; and
(b) a judgment creditor may apply to have the property proceeded against arrested.
(2) The practice direction sets out the procedure for applying for arrest.
(3) A party making an application for arrest must —
(a) request a search to be made in the Register before the warrant is issued to
determine whether there is a caution against arrest in force with respect to that property;
and
(b) file a declaration in the form set out in the practice direction.
(4) A warrant of arrest may not be issued as of right in the case of property in
respect of which the beneficial ownership, as a result of a sale or disposal by any court
in any jurisdiction exercising admiralty jurisdiction in rem, has changed since the claim
form was issued.
(5) A warrant of arrest may not be issued against a ship owned by a State where by
any convention or treaty, the United Kingdom has undertaken to minimise the possibility
of arrest of ships of that State until—
(a) notice in the form set out in the practice direction has been served on a consular
officer at the consular office of that State in London or the port at which it is intended to
arrest the ship; and
(b) a copy of that notice is attached to any declaration under pa ragraph (3)(b).
(6) Except—
(a) with the permission of the court; or
(b) where notice has been given under paragraph (5), a warrant of arrest may not
be issued in a claim in rem against a foreign ship belonging to a port of a State in
respect of which an order in council has been made under section 4 of the Consular
Relations Act 1968 11, until the expiration of 2 weeks from appropriate notice to the
consul.
(7) A warrant of arrest is valid for 12 months but may only be executed if the claim
form—
(a) has been served; or
(b) remains valid for service at the date of execution.
(8) Property may only be arrested by the Marshal or his substitute.
(9) Property under arrest—
(a) may not be moved unless the court orders otherwise; and
(b) may be immobilised or prevented from sailing in such manner as the Marshal
may consider appropriate.
(10) Where an in rem claim form has been issued and security sought, any person
who has filed an acknowledgment of service may apply for an order specifying the
amount and form of security to be provided. 61.6 Security in claim in rem
(1) This rule applies if, in a claim in rem, security has been given to —
(a) obtain the release of property under arrest; or
(b) prevent the arrest of property.
(2) The court may order that the—
(a) amount of security be reduced and may stay the claim until the order is
complied with; or
(b) claimant may arrest or re-arrest the property proceeded against to obtain
further security.
(3) The court may not make an order under paragraph (2)(b) if the total security to
be provided would exceed the value of the property at the time —
(a) of the original arrest; or
(b) security was first given (if the property was not arrested). 61.7 Cautions
against arrest
(1) Any person may file a request for a caution against arrest.
(2) When a request under paragraph (1) is filed the court will enter the caution in
the Register if the request is in the form set out in the practice direction and — (a)
the person filing the request undertakes—
(i) to file an acknowledgment of service; and
(ii) to give sufficient security to satisfy the claim with interest and costs; or
(b) where the person filing the request has constituted a limitation fund in
accordance with Article 11 of the Convention on Limitation of Liability for Maritime
Claims 197612 he—
(i) states that such a fund has been constituted; and
(ii) undertakes that the claimant will acknowledge service of the claim form by
which any claim may be begun against the property described in the request.
(3) A caution against arrest—
(a) is valid for 12 months after the date it is entered in the Register; but
(b) may be renewed for a further 12 months by filing a further reques t.
(4) Paragraphs (1) and (2) apply to a further request under paragraph (3)(b).
(5) Property may be arrested if a caution against arrest has been entered in the
Register but the court may order that—
(a) the arrest be discharged; and
(b) the party procuring the arrest pays compensation to the owner of or other
persons interested in the arrested property. 61.8 Release and cautions against release
(1) Where property is under arrest—
(a) an in rem claim form may be served upon it; and
(b) it may be arrested by any other person claiming to have an in rem claim against
it.
(2) Any person who—
(a) claims to have an in rem right against any property under arrest; and
(b) wishes to be given notice of any application in respect of that property or its
proceeds of sale, may file a request for a caution against release in the form set out in
the practice direction.
(3) When a request under paragraph (2) is filed, a caution against release will be
entered in the Register.
(4) Property will be released from arrest if —
(a) it is sold by the court;
(b) the court orders release on an application made by any party;
(c)
(i) the arresting party; and
(ii) all persons who have entered cautions against release file a request for
release in the form set out in the practice direction; or
(d) any party files—
(i) a request for release in the form set out in the practice direction (containing an
undertaking); and
(ii) consents to the release of the arresting party and all persons who have entered
cautions against release.
(5) Where the release of any property is delayed by the entry of a caution against
release under this rule any person who has an interest in the property may apply for an
order that the person who entered the caution pay damages for losses suffered by the
applicant because of the delay.
(6) The court may not make an order under paragraph (5) if satisfied that there was
good reason to—
(a) request the entry of; and
(b) maintain the caution.
(7) Any person—
(a) interested in property under arrest or in the proceeds of sale of such property;
or
(b) whose interests are affected by any order sought or made, may be made a party
to any claim in rem against the property or proceeds of sale.
(8) Where—
(a)
(i) a ship is not under arrest but cargo on board her is; or
(ii) a ship is under arrest but cargo on board her is not; and
(b) persons interested in the ship or cargo wish to discharge the cargo, they may
without being made parties, request the Marshal to author ise steps to discharge the
cargo.
(9) If—
(a) the Marshal considers a request under paragraph (8) reasonable; and
(b) the applicant gives an undertaking in writing acceptable to the Marshal to pay
—
(i)his fees; and
(ii) all expenses to be incurred by him or on his behalf on demand, the Marshal
will apply to the court for an order to permit the discharge of the cargo.
(10) Where persons interested in the ship or cargo are unable or unwilling to give
an undertaking as referred to in paragraph (9)(b), they may—
(a) be made parties to the claim; and
(b) apply to the court for an order for —
(i) discharge of the cargo; and
(ii) directions as to the fees and expenses of the Marshal with regard to the
discharge and storage of the cargo. 61.9 Judgment in default
(1) In a claim in rem (other than a collision claim) the claimant may obtain
judgment in default of—
(a) an acknowledgment of service only if —
(i) the defendant has not filed an acknowledgment of service; and
(ii) the time for doing so set out in rule 61.3(4) has expired; and
(b) defence only if—
(i) a defence has not been filed; and
(ii) the relevant time limit for doing so has expired.
(2) In a collision claim, a party who has filed a co llision statement of case within
the time specified by rule 6 1.4(5) may obtain judgment in default of a collision
statement of case only if—
(a) the party against whom judgment is sought has not filed a collision statement of
case; and
(b) the time for doing so set out in rule 61.4(5) has expired.
(3) An application for judgment in default—
(a) under paragraph (1) or paragraph (2) in an in rem claim must be made by filing
—
(i) an application notice as set out in the practice direction;
(ii) a certificate proving service of the claim form; and
(iii) evidence proving the claim to the satisfaction of the court; and
(b) under paragraph (2) in any other claim must be made in acco rdance with Part
12 with any necessary modifications.
(4) An application notice seeking judgment in default and, unless the court orders
otherwise, all evidence in support, must be served on all persons who have entered
cautions against release on the Register.
(5) The court may set aside or vary any judgment in default entered under this rule.
(6) The claimant may apply to the court for judgment against a party at whose
instance a notice against arrest was entered where —
(a) the claim form has been serve d on that party;
(b) the sum claimed in the claim form does not exceed the amount specified in the
undertaking given by that party in accordance with rule 61 .7(2)(a)(ii); and
(c) that party has not fulfilled that undertaking within 14 days after service on him
of the claim form. 61.10 Sale by the court, priorities and payment out
(1) An application for an order for the survey, appraisement or sale of a ship may
be made in a claim in rem at any stage by any party.
(2) If the court makes an order for sale, it may —
(a) set a time within which notice of claims against the proceeds of sale must be
filed; and
(b) the time and manner in which such notice must be advertised.
(3) Any party with a judgment against the property or proceeds of sale may at any
time after the time referred to in paragraph (2) apply to the court for the determination of
priorities.
(4) An application notice under paragraph (3) must be served on all perso ns who
have filed a claim against the property.
(5) Payment out of the proceeds of sale will be made only to judgment creditors
and—
(a) in accordance with the determination of priorities; or
(b) as the court orders. 61.11 Limitation claims
(1) This rule applies to limitation claims.
(2) A claim is started by the issue of a limitation claim form as set out in the
practice direction.
(3) The—
(a) claimant; and
(b) at least one defendant must be named in the claim form, but all other defendants
may be described.
(4) The claim form—
(a) must be served on all named defendants and any other defendant who requests
service upon him; and
(b) may be served on any other defendant.
(5) The claim form may not be served out of the j urisdiction unless—
(a) the claim falls within section 22(2)(a), (b) or (c) of the Supreme Court Act
13
1981 ;
(b) the defendant has submitted to or agreed to submit to the jurisdiction of the
court; or
(c) the Admiralty Court has jurisdiction over the claim under any applicable
Convention; and the court grants permission in accordance with Section III of Part 6.
(6) An acknowledgment of service is not required.
(7) Every defendant upon whom a claim form is served must —
(a) within 28 days of service file—
(i) a defence; or
(ii) a notice that he admits the right of the claimant to limit liability; or
(b) if he wishes to—
(i) dispute the jurisdiction of the court; or
(ii) argue that the court should not exercise its jurisdiction, file within 14 days of
service (or where the claim form is served out of the jurisdiction, within the time
specified in rule 6.22) an acknowledgment of service as set out in the practice direction.
(8) If a defendant files an acknowledgment of service under paragraph (7)(b) he
will be treated as having accepted that the court has jurisdiction to hear the claim unless
he applies under Part 11 within 14 days after filing the acknowledgment of service.
(9) Where one or more named defendants admits the right to limit —
(a) the claimant may apply for a restricted limitation decree in the form set out in
the practice direction; and
(b) the court will issue a decree in the form set out in the practice di rection
limiting liability only against those named defendants who have admitted the claimant’s
right to limit liability.
(10) A restricted limitation decree—
(a) may be obtained against any named defendant who fails to file a defence within
the time specified for doing so; and
(b) need not be advertised, but a copy must be served on the defendants to whom it
applies.
(11) Where all the defendants upon whom the claim form has been served admit the
claimant’s right to limit liability—
(a) the claimant may apply to the Admiralty Registrar for a general limitation
decree in the form set out in the practice direction; and
(b) the court will issue a limitation decree.
(12) Where one or more of the defendants upon whom the claim form has been
served do not admit the claimant’s right to limit, the claimant may apply for a general
limitation decree in the form set out in the practice direction.
(13) When a limitation decree is granted the court —
(a) may—
(i) order that any proceedings relating to any claim arising out of the occurrence be
stayed;
(ii)order the claimant to establish a limitation fund if one has not been established
or make such other arrangements for payment of claims against which liability is
limited; or
(iii) if the decree is a restricted limitation decree, distribute the limitation fund;
and
(b) will, if the decree is a general limitation decree, give directions as to
advertisement of the decree and set a time within which notice of claims against the fund
must be filed or an application made to set aside the decree.
(14) When the court grants a general limitation decree the claimant must —
(a) advertise it in such manner and within such time as the court directs; and
(b) f i l e —
(i) a declaration that the decree has been advertised in accordance with paragraph
(a); and
(ii)copies of the advertisements.
(15) No later than the time set in the decree for filing claims, each of the
defendants who wishes to assert a claim must file and serve his statement of case on —
(a) the limiting party; and
(b) all other defendants except where the court orders otherwise.
(16) Any person other than a defendant upon whom the claim form has been served
may apply to the court within the time fixed in the decree to have a general limitation
decree set aside.
(17) An application under paragraph (16) must be supported by a declaration —
(a) stating that the applicant has a claim against the claimant arising out of the
occurrence; and
(b) setting out grounds for contending that the claimant is not entitled to the decree,
either in the amount of limitation or at all.
(18) The claimant may constitute a limitation fund by making a payment into court.
(19) A limitation fund may be established before or after a limitation claim has
been started.
(20) If a limitation claim is not commenced within 75 days after the date the fund
was established—
(a) the fund will lapse; and
(b) all money in court (including interest) will be repaid to the person who made
the payment into court.
(21) Money paid into court under paragraph (18) will not be paid out except under
an order of the court.
(22) A limitation claim for—
(a) a restricted decree may be brought by counterclaim; and
(b) a general decree may only be brought by counterclaim with the permission of
the court. 61.12 Stay of proceedings
Where the court orders a stay of any claim in rem —
(a) any property under arrest in the claim remains under arrest; and
(b) any security representing the property remains in force, unless the court orders
otherwise. 61.13 Assessors
The court may sit with assessors when hearing—
(a) collision claims; or
(b) other claims involving issues of navigation or seamanship, and the parties will
not be permitted to call expert witnesses unless the court orders otherwise. Admiralty
Claims Practice Direction This Practice Direction Supplements CPR Part 61 61.1—
Scope
1.1 The practice direction supplementing Part 58 (Commercial Claims) also
applies to Admiralty claims except where it is inconsistent with Part 61 or this practice
direction. Case management
2.1 After a claim form is issued the Registrar will issue a direction in writing
stating—
(1) whether the claim will remain in the Admiralty Court or be transferred to
another court; and
(2) if the claim remains in the Admiralty Court —
(a) whether it will be dealt with by—
(i) the Admiralty judge; or
(ii) the Registrar; and
(b) whether the trial will be in London or elsewhere.
2.2 In making these directions the Registrar will have regard to —
(1) the nature of the issues and the sums in dispute; and
(2) the criteria set in rule 26.8 so far as they are applicable.
2.3 Where the Registrar directs that the claim will be dealt with by the Admiralty
judge, case management directions will be given and any case management conference
or pre-trial review will be heard by the Admiralty judge. 61.3—Claims in rem
3.1 A claim form in rem must be in Form ADM1.
3.2 The claimant in a claim in rem may be named or may be described, but if not
named in the claim form must identify himself by name if requested to do so by any other
party.
3.3 The defendant must be described in the claim form.
3.4 The acknowledgment of service must be in Form ADM2. The person who
acknowledges service must identify himself by name.
3.5 The period for acknowledging service under rule 61.3(4) applies irrespective
of whether the claim form contains particulars of claim.
3.6 A claim form in rem may be served in the following ways:
(1) on the property against which the claim is brought by fixing a copy of the claim
form—
(a) on the outside of the property in a position which may reasonably be expected
to be seen; or
(b) where the property is freight, either—
(i) on the cargo in respect of which the freight was earned; or
(ii) on the ship on which the cargo was carried;
(2) if the property to be served is in the custody of a person who will not permit
access to it, by leaving a copy of the claim form with that person;
(3) where the property has been sold by the Marshal, by filing the claim form at the
court;
(4) where there is a notice against arrest, on the person named in the notice as
being authorised to accept service;
(5) on any solicitor authorised to accept service;
(6) in accordance with any agreement providing for service of proceedings; or
(7) in any other manner as the court may direct under rule 6.8 provided that the
property against which the claim is brought or part of it is within the jurisdiction of the
court.
3.7 In claims where the property—
(1) is to be arrested; or
(2) is already under arrest in current proceedings, the Marshal will serve the in
rem claim form if the claimant requests the court to do so.
3.8 In all other cases in rem claim forms must be served by the claimant.
3.9 Where the defendants are described and not named on the claim form (for
example as "the Owners of the Ship X"), any acknowledgment of service in addition to
stating that description must also state the full names of the persons acknowledging
service and the nature of their ownership.
3.10 After the acknowledgment of service has been filed, the claim will follow the
procedure applicable to a claim proceeding in the Commercial list except that the
claimant is allowed 75 days to serve the particulars of claim.
3.11 A defendant who files an acknowledgment of service to an in rem claim does
not lose any right he may have to dispute the jurisdiction of the court (see rule 10.1(3)
(b) and Part 11).
3.12 Any person who pays the prescribed fee may, during office hours, search for,
inspect and take a copy of any claim form in rem whether or not it has been served. 61.4 —
Collision claims
4.1 A collision statement of case must be in form ADM3.
4.2 A collision statement of case must contain—
(1) in Part 1 of the form, answers to the questions set out in that Part; and
(2) in Part 2 of the form, a statement—
(a) of any other facts and matters on which the party filing the collision statement
of case relies;
(b) of all allegations of negligence or other fault which the party filing the collision
statement of case makes; and
(c) of the remedy which the party filing the collision statement of case claims.
4.3 When he files his collision statement of case each party must give notice to
every other party that he has done so.
4.4 Within 14 days after the last collision statement of case is filed each party must
serve a copy of his collision statement of case on every other party.
4.5 Before the coming into force of Part 61, a collision statement of case was
known as a Preliminary Act and the law relating to Preliminary Acts will continue to
apply to collision statements of case. 61.5—Arrest
5.1 An application for arrest must be—
(1) in form ADM4 (which must also contain an undertaking); and
(2) accompanied by a declaration in form ADM5.
5.2 When it receives an application for arrest that complies with the rules and the
practice direction the court will issue an arrest warrant.
5.3 The declaration required by rule 61.5(3)(b) must be verified by a statement of
truth and must state—
(1) in every claim—
(a) the nature of the claim or counterclaim and that it has not been satisfied and if it
arises in connection with a ship, the name o f that ship;
(b) the nature of the property to be arrested and, if the property is a ship, the name
of the ship and her port of registry; and
(c) the amount of the security sought, if any.
(2) in a claim against a ship by virtue of section 21(4) of the Supreme Court Act
1981—
(a) the name of the person who would be liable on the claim if it were not
commenced in rem;
(b) that the person referred to in sub-paragraph (a) was, when the right to bring the
claim arose—
(i) the owner or charterer of; or
(ii) in possession or in control of, the ship in connection with which the claim
arose; and
(c) that at the time the claim form was issued the person referred to in sub -
paragraph (a) was either—
(i) the beneficial owner of all the shares in the ship in respect of which the warrant
is required; or
(ii)the charterer of it under a charter by demise;
(3) in the cases set out in rules 61.5 (5) and (6) that the relevant notice has been
sent or served, as appropriate; and
(4) in the case of a claim in respect of liability incurred under section 153 of the
Merchant Shipping Act 1995, the facts relied on as establishing that the court is not
prevented from considering the claim by reason of section 166(2) of that Act.
5.4 The notice required by rule 61.5(5)(a) must be in form ADM6.
5.5 Property is arrested—
(1) by service on it of an arrest warrant in form ADM9 in the manner set out at
paragraph 3.6(1); or
(2) where it is not reasonably practicable to serve the warrant, by service of a
notice of the issue of the warrant—
(a) in the manner set out in paragraph 3.6(1) on the property; or
(b) by giving notice to those in charge of the property.
5.6 When property is arrested the Registrar will issue standard directions in form
ADM1 0.
5.7 The Marshal does not insure property under arrest. 61.7—Cautions against
arrest
6.1 The entry of a caution against arrest is not treated as a submission to the
jurisdiction of the court.
6.2 The request for a caution against arrest must be in form ADM7.
6.3 On the filing of such a request, a caution against arrest will be entered in the
Register.
6.4 The Register is open for inspection when the Admiralty and Commercial
Registry is open. 61.8—Release and cautions against release
7.1 The request for a caution against release must be in form ADM11.
7.2 On the filing of such a request, a caution against release will be entered in the
Register.
7.3 The Register is open for inspection when the Admiralty and Commercial
Registry is open.
7.4 A request for release under rule 61 .8(4)(c) and (d) must be in form ADM1 2.
7.5 A withdrawal of a caution against release must be in form ADM12A. 61.9—
Judgment in default
8.1 An application notice for judgment in default must be in form ADM13. 61.10—
Sale by the court and priorities
9.1 Any application to the court concerning—
(1) the sale of the property under arrest; or
(2) the proceeds of sale of property sold by the court will be heard in public and
the application notice served on—
(a) all parties to the claim;
(b) all persons who have requested cautions against release with regard to the
property or the proceeds of sale; and
(c) the Marshal.
9.2 Unless the court orders otherwise an order for sale will be in form ADM1 4.
9.3 An order for sale before judgment may only be made by the Admiralty judge.
9.4 Unless the Admiralty judge orders otherwise, a determination of priorities may
only be made by the Admiralty judge.
9.5 When—
(1) proceeds of sale are paid into court by the Marshal; and
(2) such proceeds are in a foreign currency, the funds will be placed on one day
call interest bearing account unless the court orders otherwise.
9.6 Unless made at the same time as an application for sale, or other prior
application, an application to place foreign currency on longer term deposit may be
made to the Registrar.
9.7 Notice of the placement of foreign currency in an in terest bearing account must
be given to all parties interested in the fund by the party who made the application under
paragraph 9.6.
9.8 Any interested party who wishes to object to the mode of investment of foreign
currency paid into court may apply to t he Registrar for directions. 61.11—Limitation
claims
10.1 The claim form in a limitation claim must be —
(1) in form ADM15; and
(2) accompanied by a declaration—
(a) setting out the facts upon which the claimant relies; and
(b) stating the names and addresses (if known) of all persons who, to the
knowledge of the claimant, have claims against him in respect of the occurrence to
which the claim relates (other than named defendants), verified by a statement of truth.
10.2 A defence to a limitation claim must be in form ADM1 6A.
10.3 A notice admitting the right of the claimant to limit liability in a limitation
claim must be in form ADM1 6.
10.4 An acknowledgment of service in a limitation claim must be in form
ADM16B.
10.5 An application for a restricted limitation decree must be in form ADM17 and
the decree issued by the court on such an application must be in form ADM1 8.
10.6 An application for a general limitation decree must be in form ADM17A.
10.7 Where—
(1) the right to limit is not admitted; and
(2) the claimant seeks a general limitation decree in form ADM1 7A, the claimant
must, within 7 days after the date of the filing of the defence of the defendant last served
or the expiry of the time for doing so, apply for an appointment before the Registrar for
a case management conference.
10.8 On an application under rule 61.11(12) the Registrar may —
(1) grant a general limitation decree; or
(2) if he does not grant a decree—
(a) order service of a defence ;
(b) order disclosure by the claimant; or
(c) make such other case management directions as may be appropriate. 10.9
The fact that a limitation fund has lapsed under rule 61.11(20)(a) does not prevent
the establishment of a new fund.
10.10 Where a limitation fund is established, it must be —
(1) the sterling equivalent of the number of special drawing rights to which [the
claimant] claims to be entitled to limit his liability under the Merchant Shipping Act
1995; together with
(2) interest from the date of the occurrence giving rise to his liability to the date of
payment into court.
10.11 Where the claimant does not know the sterling equivalent referred to in
paragraph 10.10(1) on the date of payment into court he may —
(1) calculate it on the basis of the latest available published sterling equivalent of
a special drawing right as fixed by the International Monetary Fund; and
(2) in the event of the sterling equivalent of a special drawing right on the date of
payment into court being different from that used for calculating the amount of that
payment into court the claimant may—
(a) make up any deficiency by making a further payment into court which, if made
within 14 days after the payment into court, will be tr eated, except for the purpose of the
rules relating to the accrual of interest on money paid into court, as if made on the date
of that payment into court; or
(b) apply to the court for payment out of any excess amount (together w ith any
interest accrued) paid into court.
10.12 An application under paragraph 10.1 1(2)(b) —
(1) may be made without notice to any party; and
(2) must be supported by evidence proving, to the satisfaction of the court, the
sterling equivalent of the appropriate number of special drawing rights on the date of
payment into court.
10.13 The claimant must give notice in writing to every named defendant of —
(1) any payment into court specifying—
(a) the date of the payment in;
(b) the amount paid in;
(c) the amount and rate of interest included; and
(d) the period to which it relates; and
(2) any excess amount (and interest) paid out to him under paragraph 10. 11(2)(b).
10.14 A claim against the fund must be in form ADM20.
10.15 A defendant’s statement of case filed and served in accordance with rule
6 1.11(15) must contain particulars of the defendant’s claim.
10.16 Any defendant who is unable to file and serve a statement of case in
accordance with rule 6 1.11(15) and par agraph 10.15 must file a declaration, verified by
a statement of truth, in form ADM21 stating the reason for his inability.
10.17 No later than 7 days after the time for filing claims [or declarations], the
Registrar will fix a date for a case management c onference at which directions will be
given for the further conduct of the proceedings.
10.18 Nothing in rule 61.11 prevents limitation being relied on by way of defence.
Proceeding against or concerning the international oil pollution compensation fund
11.1 For the purposes of section 177 of the Merchant Shipping Act 1995 ("the
Act") and the corresponding provision of Schedule 4 to the Act, the Fund may be given
notice of proceedings by any party to a claim against an owner or guarantor in respect of
liability under—
(1) section 153 or section 154 of the Act; or
(2) the corresponding provisions of Schedule 4 to the Act by that person serving a
notice in writing on the Fund together with copies of the claim form and any statements
of case served in the claim.
11.2 The Fund may intervene in any claim to which paragraph 11.1 applies,
(whether or not served with the notice), by serving notice of intervention on the —
(1) owner;
(2) guarantor; and
(3) court.
11.3 Where a judgment is given against the Fund in any claim under —
(1) section 175 of the Act; or
(2) the corresponding provisions of Schedule 4 to the Act, the Registrar will
arrange for a stamped copy of the judgment to be sent to the Fund by post.
11.4 Notice to the Registrar of the matters set out in —
(1) section 176(3)(b) of the Act; or
(2) the corresponding provisions of Schedule 4 to the Act, must be given by the
Fund in writing and sent to the court. Other Claims
12.1 This section applies to Admiralty claims which, before the coming into force
of Part 61, would have been called claims in personam. Subject to the provisions of
Part 61 and this practice direction relating to limitation claims and to collision claims,
the following provisions apply to such claims.
12.2 All such claims will proceed in accordance with Part 58 (Commercial
Court).
12.3 The claim form must be in Form ADMIA and must be served by the claimant.
12.4 The claimant may be named or may be described , but if not named in the
claim form must identify himself by name if requested to do so by any other party.
12.5 The defendant must be named in the claim form.
12.6 Any person who files a defence must identify himself by name in the defence.
References to the Registrar
13.1 The court may at any stage in the claim refer any question or issue for
determination by the Registrar (a "reference").
13.2 Unless the court orders otherwise, where a reference has been ordered —
(1) if particulars of claim have not already been served, the claimant must file and
serve particulars of claim on all other parties within 14 days after the date of the order;
and
(2) any party opposing the claim must file a defence to the claim within 14 d ays
after service of the particulars of claim on him.
13.3 Within 7 days after the defence is filed, the claimant must apply for an
appointment before the Registrar for a case management conference. Undertakings
14.1 Where, in [Part 61] or this practice direction, any undertaking to the Marshal
is required it must be given—
(1) in writing and to his satisfaction; or
(2) in accordance with such other arrangements as he may require.
14.2 Where any party is dissatisfied with a direction given by the Marshal in this
respect he may apply to the Registrar for a ruling. Part 62. Arbitration Claims 62.1
Scope of this Part and interpretation
(1) This Part contains rules about arbitration claims.
(3) Part 58 (Commercial Court) applies to arbitration claims in the Commercial
Court, Part 59 (Mercantile Court) applies to arbitration claims in the Mercantile Court
and Part 60 (Technology and Construction Court claims) applies to arbitration claims in
the Technology and Construction Court, except where this Part provides otherwise. I
Claims under the 1996 act
62.2 Interpretation
(1) In this Section of this Part "arbitration claim" means —
(a) any application to the court under the 1996 Act;
(b) a claim to determine—
(i) whether there is a valid arbitration agreement;
(ii) whether an arbitration tribunal is properly constituted; or what matters have
been submitted to arbitration in accordance with an arbitration agreement;
(c) a claim to declare that an award by an arbitral tribunal is not binding on a
party; and
(d) any other application affecting—
(i) arbitration proceedings (whether started or not); or
(ii) an arbitration agreement.
(2) This Section of this Part does not apply to an arbitration claim to which
Sections II or III of this Part apply.
62.3 Starting the claim
(1) Except where paragraph (2) applies an arbitration claim must be started by the
issue of an arbitration claim form in accordance with the Part 8 procedure.
(2) An application under section 9 of the 1996 Act to stay legal proceedings must
be made by application notice to the court dealing with those proceedings.
(3) The courts in which an arbitration claim may be s tarted are set out in the
practice direction.
(4) Rule 30.5(3) applies with the modification that a judge of the Technology and
Construction Court may transfer the claim to any other court or specialist list. 62.4
Arbitration claim form
62.5 Service out of the jurisdiction
(1) The court may give permission to serve an arbitration claim form out of the
jurisdiction if—
(a) the claimant seeks to—
(i)challenge; or
(ii) appeal on a question of law arising out of, an arbitration award mad e within
the jurisdiction;
(The place where an award is treated as made is determined by section 53 of the
1996 Act.)
(b) the claim is for an order under section 44 of the 1996 Act; or
(c) the claimant—
(i) seeks some other remedy or requires a question to be decided by the court
affecting an arbitration (whether started or not), an arbitration agreement or an
arbitration award; and
(ii) the seat of the arbitration is or will be within the jurisdiction or t he conditions
in section 2(4) of the 1996 Act are satisfied.
(2) An application for permission under paragraph (1) must be supported by
written evidence—
(a) stating the grounds on which the application is made; and
(b) showing in what place or country the person to be served is, or probably may
be found.
(3) Rules 6.24 to 6.29 apply to the service of an arbitration claim form under
paragraph (1).
(4) An order giving permission to serve an arbitration claim form out of th e
jurisdiction must specify the period within which the defendant may file an
acknowledgment of service.
62.8 Stay of legal proceedings
(1) An application notice seeking a stay of legal proceedings under section 9 of the
1996 Act14 must be served on all parties to those proceedings who have given an
address for service.
(2) A copy of an application notice under paragraph (1) must be served on any
other party to the legal proceedings (whether or not he is within the jurisdiction) who
has not given an address for service, at —
(a) his last known address; or
(b) a place where it is likely to come to his attention.
(3) Where a question arises as to whether —
(a) an arbitration agreement has been concluded; or
(b) the dispute which is the subject-matter of the proceedings falls within the terms
of such an agreement,
the court may decide that question or give directions to enable it to be decided and
may order the proceedings to be stayed pending its decision.
(c) if the court extends the period of 28 days, each defendant’s time for
acknowledging service and serving evidence shall start to run as if the arbitration claim
form had been served on the date when the court’s order is served on that defendant.
62.10 Hearings
(1) The court may order that an arbitration claim be heard either in public or in
private.
(2) Rule 39.2 does not apply.
(3) Subject to any order made under paragraph (1) —
(a) the determination of—
(i) a preliminary point of law under section 4 5 of the 1996 Act; or
(ii) an appeal under section 69 of the 1996 Act on a question of law arising out of
an award, will be heard in public; and
(b) all other arbitration claims will be heard in private.
(4) Paragraph (3)(a) does not apply to—
(a) the preliminary question of whether the court is satisfied of the matters set out
in section 45(2)(b); or
(b) an application for permission to appeal under section 69(2)(b). II Other
Arbitration Claims
62.11 Scope of this Section
(1) This Section of this Part contains rules about arbitration claims to which the
old law applies.
(2) In this Section
(a) "the old law" means the enactments specified in Schedules 3 and 4 of the 1996
Act as they were in force before their amendment or repeal by that Act; and
(b) "arbitration claim" means any application to the court under the old law and
includes an appeal (or application for permission to appeal) to the High Court under
section 1(2) of the 1979 Act. 15
(3) This Section does not apply to—
(a) a claim to which Section III of this Part applies; or
(b) a claim on the award.
62.12 Applications to Judge
62.13 Starting the claim
(1) Except where paragraph (2) applies an arbitration claim must be started by the
issue of an arbitration claim form in accordance with the Part 8 procedure.
(2) Where an arbitration claim is to be made in existing proceedings —
(a) it must be made by way of application notice; and
(b) any reference in this Section of this Part to an arbitration claim form includes a
reference to an application notice.
(3) The arbitration claim form in an arbitration claim under section 1(5) of the
1979 Act (including any claim seeking permission) must be served on —
(a) the arbitrator or umpire; and
(b) any other party to the reference.
62.16 Service out of the jurisdiction
(1) Subject to paragraph (2)—
(a) any arbitration claim form in an arbitration claim under the 1950 Act or the
1979 Act; or
(b) any order made in such a claim, may be served out of the jurisdiction with the
permission of the court if the arbitration to which the claim relates —
(i) is governed by the law of England and Wales; or
(ii) has been, is being, or will be, held within t he jurisdiction.
(2) An arbitration claim form seeking permission to enforce an award may be
served out of the jurisdiction with the permission of the court whether or not the
arbitration is governed by the law of England and Wales.
(3) An application for permission to serve an arbitration claim form out of the
jurisdiction must be supported by written evidence —
(a) stating the grounds on which the application is made; and
(b) showing in what place or country the person to be served is, or probably may
be found.
Rules 6.24 to 6.29 apply to the service of an arbitration claim form under
paragraph (1).
(4) Omitted
(5) An order giving permission to serve an arbitration claim form out of the
jurisdiction must specify the period within which the defendant may file an
acknowledgment of service. III Enforcement
62.17 Scope of this Section
This Section of this Part applies to all arbitration enforcement proceedings other
than by a claim on the award.
62.18 Enforcement of awards
(1) An application for permission under—
(a) section 66 of the 1996 Act 16;
(b) section 101 of the 1996 Act;
(c) section 26 of the 1950 Act 17; or
(d) section 3(1)(a) of the 1975 Act, 18 to enforce an award in the same manner as a
judgment or order may be made without notice in an arbitration claim form. 62.20
Registration in High Court of foreign awards
(1) Where—
(a) an award is made in proceedings on an arbitration in any part of a United
Kingdom Overseas Territory (within the meaning of rule 6.18(f)) or other territory to
which Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 19 ("the 1933
Act") extends;
(b) Part II of the Administration of Justice Act 1920 20 extended to that part
immediately before Part I of the 1933 Act was extended to that part; and
(c) an award has, under the law in force in the place where it was made, become
enforceable in the same manner as a judgment give n by a court in that place, rules 74.1
to 74.7 and 74.9 apply in relation to the award as they apply in relation to a judgment
given by the court subject to the modifications in paragraph (2).
(2) The modifications referred to in paragraph (1) are as follo ws—
(a) for references to the State of origin are substituted references to the place
where the award was made; and
(b) the written evidence required by rule 74.4 must state (in addition to the matters
required by that rule) that to the best of the information or belief of the maker of the
statement the award has, under the law in force in the place where it was made, become
enforceable in the same manner as a judgment given by a court in that place.
* The text of the 1982 Act set out in Appendix 1 is as amended by the Order.
1. 1958 c. 39; section 2A was inserted by the Civil Jurisdiction and Judgments Act
1982 (c. 27), section 37, Schedule 1, Part II.
2. 1966 c. 53, section 11A was inserted by the Civil Jurisdiction and Judgments
Act 1982 (c. 27), paragraph 7 of Schedule 11.
1. 1947 c. 24. Section 1(2A) was inserted by section 15 of the Armed Forces Act
1991 (c. 62).
2. 1955 c. 18. The first paragraph of subsection (5) was amended by section 22(1)
of, and paragraph 2 of the Schedule to, the Maintenance Orders (Reciprocal
Enforcement) Act 1972 (c. 18) and section 15(4) of, and paragraph 1 of Part I of
Schedule 12 to, the Civil Jurisdiction and Judgments Act 1982 (c. 27).
3. 1955 c. 19. The first paragraph of subsection (5) was amended by section 22(1)
of, and paragraph 2 of the Schedule to, the Maintenance Orders (Reciprocal
Enforcement) Act 1972 (c. 18) and section 15(4) of, and paragraph 1 of Part I o f
4. 1957 c. 53. Subsection (5) was amended by section 22(1) of, and paragraph 3 of
the Schedule to, the Maintenance Orders (Reciprocal Enforcement) Act 1972 (c. 18)
and section 15(4) of, and paragraph 2 of Part I of Schedule 12 to, the Civil Jurisdiction
and Judgments Act 1982 (c. 27).
5. 1958 c. 39. Subsection (4) was added by section 22(1) of, and paragraph 4 of
the Schedule to, the Maintenance Orders (Reciprocal Enforcement) Act 19 72 (c. 18)
and section 15(4) of, and paragraph 3 of Part I of Schedule 12 to, the Civil Jurisdiction
and Judgments Act 1982 (c. 27).
6. S.R. & O. (N.I.) 1965 No. 217. Regulation 3B was inserted by regulation 2 of
the Legal Aid (General) (Amendment) (No. 2 ) Regulations (Northern Ireland) 1968
(S.R. 1986 No. 346).
7. 1966 c. 35 (N.I.). Subsection 10(5) was inserted by section 22 of, and paragraph
5(b) of the Schedule to, the Maintenance Orders (Reciprocal Enforcement) Act 1972 (c.
18). Sections 10(2) and (5) were amended by section 15(4) of, and paragraph 4 of Part I
of Schedule 12 to, the Civil Jurisdiction and Judgments Act 1982 (c. 27).
8. 1970 c. 31. Paragraph 13 was inserted by section 15(4) of, and paragraph 5 of
Part I of Schedule 12 to, the Civil Jurisdiction and Judgments Act 1982 (c. 27).
9. 1971 c. 32. Paragraph 13 was inserted by section 15(4) of, and paragraph 6 of
10. 1980 c. 43.
11. Section 65(1)(m) was inserted by section 15(4) of, and paragraph 7 of Part I of
12. Section 95 was substituted by section 11(1) of, and paragraph 8 of Schedule 2
to, the Maintenance Enforcement Act 1991 (c. 17).
13. S.I. 198 1/1675 (N.I. 26).
14. Article 87 was substituted by Article 9(2) of the Family Law (Northern
Ireland) Order 1993 (S.I. 1993/1576 (N.I.6)).
15. Article 88(a) was amended by section 15(4) of, and paragraph 8(1) of Part I of
16. Article 98(11)(b) was amended by section 15(4) of, and paragraph 8(2) of
17. 1982 c. 37.
18. 1984 c. 42.
19. 1989 c. 40.
20. S.I. 1989/677 (N.I.4.)
21. S.I. 1990/1504 (N.I.10)
22. 1992 c. 5.
23. 1992 c. 8 (N.I.).
24. S.I. 1997/302.
1. 1985 c. 6.
3. 1982 c. 27, as amended by the Civil Jurisdiction and Judgments Act 1991 (c.
12).
4. Cmnd. 3986.
5. 1982 c. 27. Section 25 has been amended by the Civil Jurisdiction and
Judgments Act 1991 (c. 12), Schedule 2, paragraph 12, and extended by S.I. 1997/302.
6. 1981 c. 54. Section 51 was substituted by section 4 of the Courts and Legal
Services Act 1990 (c. 41), and is amended prospectively by section 31 of the Access to
Justice Act 1999 (c. 22).
7. 1978 c. 33.
8. 1981 c. 54; section 20 was amended by the M erchant Shipping (Salvage and
Pollution) Act 1994 (c. 28), section 1(6) and Schedule 2, paragraph 6; the Merchant
Shipping Act 1995 (c. 21), section 3 14(2) and Schedule 13, paragraph 59 and by the
Merchant Shipping and Maritime Security Act 1997 (c. 28), section 29(1) and Schedule
6, paragraph 2.
9. 1995 c. 21.
10. 1981 c. 54.
11. 1968 c. 18.
12. The text of the Convention is set out in Schedule 7 to the Merchant Shipping
Act 1995 (c. 21).
13. 1981 c. 54.
14. 1996 c. 23.
15. 1979 c. 42; repealed by the Arbitration Act 1996 (c. 23), section 107(2) and
Schedule 4 but continues to apply to claims commenced before 31st January 1997 by
virtue of the Arbitration Act 1996 (Commencement No. 1) Order 1996 (S.I.
1996/3 146), article 4 and Schedule 2.
16. 1996 c. 23.
17. 1950 c. 27; section 26 was repealed by the Arbitration Act 1996 (c. 23),
section 107(2) and Schedule 4 but continues to apply to claims commenced before 31st
January 1997 by virtue of the Arbitration Act 1996 (Commencement No. 1) Order 1996
(S.I. 1996/3 146), article 4 and Schedule 2.
18. 1975 c. 3; repealed by the Arbitration Act 1996 (c. 23), section 107(2) and
Schedule 4 but continues to apply to claims commenced before 31st January 1997 by
virtue of the Arbitration Act 1996 (Commencement No. 1) Order 1996 (S.I.
1996/3 146), article 4 and Schedule 2.
19. 1933 c. 13 (23 & 24 Geo. 5).
20. 1920 c. 81 (10 & 11 Geo. 5); section 10 of Part II was substituted by the Civil
Jurisdiction and Judgments Act 1982 (c. 27), section 3 5(2) and section 14 of Part II was
amended by the Civil Jurisdiction and Judgments Act 1982 (c. 27), section 35(3).
Appendix 4
Conventions International Convention for the Unification of Certain Rules

Relating to the Arrest of Sea-Going Ships, Brussels, 10 May 1952
The High Contracting Parties,
Having recognised the desirability of determining by agreement certain uniform
rules of law relating to the arrest of sea-going ships.
Have decided to conclude a Convention for this purpose and thereto have agreed
as follows: Article 1
In this Convention the following words shall have the meanings hereby assigned to
them:
(1) "Maritime Claim" means a claim arising out of one or more of the following:
(a) damage caused by any ship either in collision or otherwise;
(b) loss of life or personal injury caused by any ship or occurring in connection
with the operation of any ship;
(c) salvage;
(d) agreement relating to the use or hire of any ship whether by charterparty or
otherwise;
(e) agreement relating to the carriage of goods in any ship whether by charterparty
or otherwise;
(f) loss of or damage to goods including baggage carried in any ship;
(g) general average;
(h) bottomry;
(i) towage;
(j) pilotage;
(k) goods or materials wherever supplied to a ship for her operation or
maintenance;
(l) construction, repair or equipment of any ship or dock charges and dues;
(m) wages of Masters, Officers, or crew;
(n) Master’s disbursements, including disbursements made by shippers, charterers
or agents on behalf of a ship or her owner;
(o) disputes as to the title to or ownership of any ship;
(p) disputes between co-owners of any ship as to the ownership, possession
(q) the mortgage or hypothecation of any ship.
(2) "Arrest" means the detention of a ship by judicial process to secure a maritime
claim, but does not include the seizure of a ship in execution or satisfaction of a
judgment.
(3) "Person" includes individuals, partnerships and bodies corporate,
Governments, their Departments, and Public Authorities.
(4) "Claimant" means a person who alleges that a maritime claim exists in his
favour. Article 2
A ship flying the flag of one of the contracting States may be arrested in the
jurisdiction of any of the contracting States in respect of any maritime claim, but in
respect of no other claim; but nothing in this Convention shall be deemed to extend or
restrict any right or powers vested in any Governments or their Departments, Public
Authorities, or Dock or Harbour Authorities under their existing domestic laws or
regulations to arrest, detain or otherwise prevent the sailing of vessels within their
jurisdiction. Article 3
(1) Subject to the provisions of paragraph 4 of this Article and of Article 10, a
claimant may arrest either the particular ship in respect of which the maritime claim
arose, or any other ship which is owned by the person who was, at th e time when the
maritime claim arose, the owner of the particular ship, even though the ship arrested be
ready to sail; but no ship, other than the particular ship in respect of which the claim
arose, may be arrested in respect of any of the maritime claim s enumerated in Article
1(1)(o), (p) or (q).
(2) Ships shall be deemed to be in the same ownership when all the shares therein
are owned by the same person or persons.
(3) A ship shall not be arrested, nor shall bail or other security be given more than
once in any one or more of the jurisdictions of any of the Contracting States in respect of
the same maritime claim by the same claimant; and, if a ship has been arrested in any
one of such jurisdictions, or bail or other security has been given in such jurisdiction
either to release the ship or to avoid a threatened arrest, any subsequent arrest of the
ship or of any ship in the same ownership by the same claimant for the sam e maritime
claim shall be set aside, and the ship released by the Court or other appropriate judicial
authority of that State, unless the claimant can satisfy the Court or other appropriate
judicial authority that the bail or other security had been finall y released before the
subsequent arrest or that there is other good cause for maintaining that arrest.
(4) When in the case of a charter by demise of a ship the charterer and not the
registered owner is liable in respect of a maritime claim relating to t hat ship, the
claimant may arrest such ship or any other ship in the ownership of the charterer by
demise, subject to the provisions of this Convention, but no other ship in the ownership
of the registered owner shall be liable to arrest in respect of such maritime claims.
The provisions of this paragraph shall apply to any case in which a person other
than the registered owner of a ship is liable in respect of a maritime claim relating to
that ship. Article 4
A ship may only be arrested under the authority of a Court or of the appropriate
judicial authority of the Contracting State in which the arrest is made. Article 5
The Court or other appropriate judicial authority within whose jurisdiction the ship
has been arrested shall permit the release of the ship upon sufficient bail or other
security being furnished, save in cases in which a ship has been arrested in respect of
any of the maritime claims enumerated in Article 1(1)(o) and (p). In such cases the
Court or other appropriate juridical authority may permit the person in possession of the
ship to continue trading the ship, upon such person furnishing sufficient bail or other
security, or may otherwise deal with the operation of th e ship during the period of the
arrest.
In default of agreement between the Parties as to the sufficiency of the bail or other
security, the Court or other appropriate judicial authority shall determine the nature and
amount thereof.
The request to release the ship against such security shall not be construed as an
acknowledgment of liability or as a waiver of the benefit of the legal limitation of
liability of the owner of the ship. Article 6
All questions whether in any case the claimant is liable in dama ges for the arrest of
a ship or for the costs of the bail or other security furnished to release or prevent the
arrest of a ship, shall be determined by the law of the Contracting State in whose
jurisdiction the arrest was made or applied for.
The rules of procedure relating to the arrest of a ship, to the application for
obtaining the authority referred to in Article 4, and all matters of procedure which the
arrest may entail, shall be governed by the law of the Contracting State in which the
arrest was made or applied for. Article 7
(1) The Courts of the country in which the arrest was made shall have jurisdiction
to determine the case upon its merits:
if the domestic law of the country in which the arrest is made gives jurisdiction to
such Courts;
or in any of the following cases namely:
(a) if the claimant has his habitual residence or principal place of business in the
country in which the arrest was made;
(b) if the claim arose in the country in which the arrest was made;
(c) if the claim concerns the voyage of the ship during which the arrest was made;
(d) if the claim arose out of a collision or in circumstances covered by Article 13
of the International Convention for the unification of certain rules of law with respect to
collisions between vessels, signed at Brussels on 23rd September 1910;
(e) if the claim is for salvage;
(f) if the claim is upon a mortgage or hypothecation of the ship arrested.
(2) If the Court within whose jurisdiction the ship was arrested has not jurisdiction
to decide upon the merits, the bail or other security given in accordance with Article 5
to procure the release of the ship shall specifically provide that it is given as security
for the satisfaction of any judgment which may eventually be p ronounced by a Court
having jurisdiction so do decide; and the Court or other appropriate judicial authority of
the country in which the arrest is made shall fix the time within which the claimant shall
bring an action before a Court having such jurisdicti on.
(3) If the parties have agreed to submit the dispute to the jurisdiction of a particular
Court other than that within whose jurisdiction the arrest was made or to arbitration, the
Court or other appropriate judicial authority within whose jurisdiction the arrest was
made may fix the time within which the claimant shall bring proceedings.
(4) If, in any of the cases mentioned in the two preceding paragraphs, the action or
proceedings are not brought within the time so fixed, the defendant may apply for the
release of the ship or of the bail or other security.
(5) This Article shall not apply in cases covered by the provisions of the revised
Rhine Navigation Convention of 17 October 1868. Article 8
(1) The provisions of this Convention shall apply to any vessel flying the flag of a
Contracting State in the jurisdiction of any Contracting State.
(2) A ship flying the flag of a non -Contracting State may be arrested in the
jurisdiction of any Contracting State in respect of any of the maritime claims enumerated
in Article 1 or of any other claim for which the law of the Contracting State permits
arrest.
(3) Nevertheless any Contracting State shall be entitled w holly or partly to exclude
from the benefits of this Convention any Government of a non -Contracting State or any
person who has not, at the time of the arrest, his habitual residence or principal place of
business in one of the Contracting States.
(4) Nothing in this Convention shall modify or affect the rules of law in force in the
respective Contracting States relating to the arrest of any ship within the jurisdiction of
the State or her flag by a person who has his habitual residence or principal place of
business in that State.
(5) When a maritime claim is asserted by a third party other than the original
claimant, whether by subrogation, assignment or otherwise, such third party shall, for
the purpose of this Convention, be deemed to have the same h abitual residence or
principal place of business as the original claimant. Article 9
Nothing in this Convention shall be construed as creating a right of action, which,
apart from the provisions of this Convention, would not arise under the law applied by
the Court which had seisin of the case, nor as creating any maritime liens which do not
exist under such law or under the Convention on Maritime Mortgages and Liens, if the
latter is applicable. Article 10
The High Contracting Parties may at the time of si gnature, deposit of ratification or
accession, reserve
(a) the right not to apply this Convention to the arrest of a ship for any of the claims
enumerated in paragraphs (o) and (p) of Article 1, but to apply their domestic laws to
such claims;
(b) the right not to apply the first paragraph of Article 3 to the arrest of a ship,
within their jurisdiction, for claims set out in Article 1, paragraph (q). Article 11
The High Contracting Parties undertake to submit to arbitration any disputes
between States arising out of the interpretation or application of this Convention, but
this shall be without prejudice to the obligations of those High Contracting Parties who
have agreed to submit their disputes to the International Court of Justice. Article 12
This Convention shall be open for signature by the States represented at the Ninth
Diplomatic Conference on Maritime Law. The protocol of signature shall be drawn up
through the good offices of the Belgian Ministry of Foreign Affairs. Article 13
This Convention shall be ratified and the instruments of ratification shall be
deposited with the Belgian Ministry of Foreign Affairs which shall notify all signatory
and acceding States of the deposit of any such instruments. Article 14
(a) This Convention shall come into force between the two States which first ratify
it, six months after the date of the deposit of the second instrument of ratification.
(b) This Convention shall come into force in respect of each signatory State which
ratifies it after the deposit of the second instrument of ratification six months after the
date of the deposit of the instrument of ratification of that State. Article 15
Any State not represented at the Ninth Diplomatic Conference on Maritime Law
may accede to this Convention.
The accession of any State shall be notified to the Belgian Ministry of Foreign
Affairs which shall inform through diplomatic channels all signatory and acceding
States of such notification.
The Convention shall come into force in respect of the acceding State six months
after the date of the receipt of such notification but not before the Convention has come
into force in accordance with the provisions of Article 14(a). Article 16
Any High Contracting Party may three years after the coming into force of this
Convention in respect of such High Contracting Party or at any time thereafter request
that a conference be convened in order to consider amendments t o the Convention.
Any High Contracting Party proposing to avail itself of this right shall notify the
Belgian Government which shall convene the conference within six months thereafter.
Article 17
Any High Contracting Party shall have the right to denounce this Convention at any
time after the coming into force thereof in respect of such High Contracting Party. This
denunciation shall take effect one year after the date on which notification thereof has
been received by the Belgian Government which shall inform through diplomatic
channels all the other High Contracting Parties of such notification. Article 18
(a) Any High Contracting Party may at the time of its ratification of or accession to
this Convention or at any time thereafter declare by written notification to the Belgian
Ministry of Foreign Affairs that the Convention shall extend to any of the territories for
whose international relations it is responsible. The Convention shall six months after the
date of the receipt of such notification by the Belgian Ministry of Foreign Affairs extend
to the territories named therein, but not before the date of the coming into force of the
Convention in respect of such High Contracting Party.
(b) A High Contracting Party which has made a declaration under (a) of this
Article extending the Convention to any territory for whose international relations it is
responsible may at any time thereafter declare by notification given to the Belgian
Ministry of Foreign Affairs that the Convention shall cease to extend to such territory
and the Convention shall one year after the receipt of the notification by the Belgian
Ministry of Foreign Affairs cease to extend thereto.
(c) The Belgian Ministry of Foreign Affa irs shall inform through diplomatic
channels all signatory and acceding States of any notification received by it under this
Article.
Done at Brussels, on May 10, 1952 in the French and English languages, the two
texts being equally authentic.
(Follow the signatures) International Convention on Certain Rules Concerning
Civil Jurisdiction in Matters of Collision, Brussels, 10 May 1952
The High Contracting Parties,
Having recognised the advisability of establishing by agreement certain uniform
rules relating to civil jurisdiction in matters of collision,
Have decided to conclude a Convention for this purpose and thereto have agreed
as follows: Article 1
place of business;
(c) or before the Court of the place of collision when the collision has occurre d
within the limits of a port or inland waters;
(2) It shall be for the plaintiff to decide in which of the Courts referred to in
paragraph 1 of this Article the action shall be instituted.
(3) A claimant shall not be allowed to bring a further action agai nst the same
defendant on the same facts in another jurisdiction, without discontinuing an action
already instituted. Article 2
The provisions of Article 1 shall not in any way prejudice the right of the Parties to
bring an action in respect of a collision before a Court they have chosen by agreement
or to refer it to arbitration. Article 3
(1) Counterclaims arising out of the same collision can be brought before the Court
Article 1.
(2) In the event of there being several claimants, any claimant may bring his action
before the Court previously seised of an action against the same party arising out of the
same collision.
(3) In the case of a collision or collisions in wh ich two or more vessels are
involved nothing in this Convention shall prevent any Court seised of an action by
national laws in further actions arising out of the same inci dent. Article 4
This Convention shall also apply to an action for damage caused by one ship to
another or to the property or persons on board such ships through the carrying out of or
the omission to carry out a manoeuvre or through non -compliance with regulations even
when there has been no actual collision. Article 5
Nothing contained in this Convention shall modify the rules of law now or
hereafter in force in the various Contracting States in regard to collisions involving
warships or vessels owned by or in the service of a State. Article 6
This Convention does not affect claims arising from contracts of carriage or from
any other contracts. Article 7
This Convention shall not apply in cases covered by the provisions of the revised
Rhine Navigation Convention of 17 October 1868. Article 8
The provisions of this Convention shall be applied as regards all persons
interested when all the vessels concerned in any action belong to States of the High
Contracting Parties.
Provided always that:
(1) As regards persons interested who belong to a non -contracting State the
application of the above provisions may be made by each of the Contracting States
conditional upon reciprocity;
(2) Where all the persons interested belong to the same State as the court trying the
case, the provisions of the national law and not of the Convention are applicable.
Article 9
The High Contracting Parties undertake to submit to arbitration any disputes
between States arising out of the interpretation or application of this Convention, but
this shall be without prejudice to the obligations of those High Contracting Parties who
have agreed to submit their disputes to the International Court of Justice. Article 10
This Convention shall be open for signature by the States represented at the Ninth
Diplomatic Conference on Maritime Law. The protocol of signature shall be drawn up
through the good offices of the Belgian Ministry of Foreign Affairs. Article 11
This Convention shall be ratified and the instruments of ratification shall be
deposited with the Belgian Ministry of Foreign Affairs which shall notify all signatory
and acceding States of the deposit of any such instruments. Article 12
(a) This Convention shall come into force between the two States which first ratify
it, six months after the date of the deposit of the second instrument of ratification.
(b) This Convention shall come into force in respect of each signatory State which
ratifies it after the deposit of the second instrument of ratification six months after the
date of the deposit of the instrument of ratification of that State. Article 13
Any State not represented at the Ninth Diplomatic Conference on Maritime Law
may accede to this Convention.
The accession of any State shall be notified to the Belgian Ministry of Foreign
Affairs which shall inform through diplomatic channels all signatory and acceding
States of such notification.
The Convention shall come into force in respect of the acceding State six months
after the date of the receipt of such notification but not before the Convention has come
into force in accordance with the provisions of Article 12(a). Article 14
Any High Contracting Party may three years after the coming into force of this
Convention in respect of such High Contracting Party or at any time thereafter request
that a Conference be convened in order to consider amendments to the Convention .
Any High Contracting Party proposing to avail itself of this right shall notify the
Belgian Government which shall convene the Conference within six months thereafter.
Article 15
Any High Contracting Party shall have the right to denounce this Convention at any
time after the coming into force thereof in respect of such High Contracting Party. This
denunciation shall take effect one year after the date on which notification thereof has
been received by the Belgian Govern ment which shall inform through diplomatic
channels all the other High Contracting Parties of such notification. Article 16
(a) Any High Contracting Party may at the time of its ratification of or accession to
this Convention or at any time thereafter de clare by written notification to the Belgian
Ministry of Foreign Affairs that the Convention shall extend to any of the territories for
whose international relations it is responsible. The Convention shall six months after the
date of the receipt of such notification by the Belgian Ministry of Foreign Affairs extend
to the territories named therein, but not before the date of the coming into force of the
Convention in respect of such High Contracting Party.
(b) A High Contracting Party which has made a de claration under paragraph (a) of
this Article extending the Convention to any territory for whose international relations it
is responsible may at any time thereafter declare by notification given to the Belgian
Ministry of Foreign Affairs that the Convent ion shall cease to extend to such territory
and the Convention shall one year after the receipt of the notification by the Belgian
Ministry of Foreign Affairs cease to extend thereto.
(c) The Belgian Ministry of Foreign Affairs shall inform through diplo matic
channels all signatory and acceding States of any notification received by it under this
Article.
Done at Brussels, on May 10, 1952, in a single original in the French and English
languages, the two texts being equally authentic.
(Follow the signatures) International Convention on Maritime Liens and
Mortgages 1993
The States Parties to this Convention
Conscious of the need to improve conditions for ship financing and the
development of national merchant fleets,
Recognizing the desirability of international uniformity in the field of maritime
liens and mortgages, and therefore
Convinced of the necessity for an international legal instrument governing maritime
liens and mortgages,
Have decided to conclude a Convention for this purpose and have therefore agreed
as follows: Article 1. Recognition and enforcement of mortgages, “hypothèques”
and charges
Mortgages, "hypothèques" and registrable charges of the same nature, which
registrable charges of the same nature will be referred to here inafter as "charges',
effected on seagoing vessels shall be recognized and enforceable in States Parties
provided that:
(a) such mortgages, "hypothéques" and charges have been effected and registered
in accordance with the law of the State in which the vessel is registered;
(b) the register and any instruments required to be deposited with the registrar in
accordance with the law of the State in whi ch the vessel is registered are open to public
inspection, and that extracts from the register and copies of such instruments are
obtainable from the registrar; and
(c) either the register or any instruments referred to in subparagraph (b) specifies
at least the name and address of the person in whose favour the mortgage, "hypothèque"
or charge has been effected or that it has been issued to bearer, the maximum amount
secured, if that is a requirement of the law of the State of registration, or, if th at amount
is specified in the instrument creating the mortgage, "hypothéque" or charge, and the
date and other particulars which, according to the State of registration, determine the
ranking in relation to other registered mortgages, "hypothèques" and cha rges. Article 2.
Ranking and effects of mortgages, “hypothèques” and charges
The ranking of registered mortgages, "hypothèques" or charges as between
themselves and, without prejudice to the provisions of this Convention, their effect in
regard to third parties shall be determined by the law of the State of registration;
however, without prejudice to the provisions of this Convention, all matters relating to
the procedure of enforcement shall be regulated by the law of the State where
enforcement takes place. Article 3. Change of ownership or registration
1. With the exception of the cases provided for in Articles 11 and 12, in all other
cases that entail the deregistration of the vessel from the register of a State Party, such
State Party shall not permit the owner to deregister the vessel unless all registered
mortgages, "hypothèques" or charges are previously deleted or the written consent of all
holders of such mortgages, "hypothèques" or charges is obtained. However, where the
deregistration of the vessel is obligatory in accordance with the law of a State Party,
otherwise than as a result of a voluntary sale, the holders of registered mortgages,
"hypothèques" or charges shall be notified of the pending deregistration in order to
enable such holders to take appropriate action to protect their interests; unless the
holders consent, the deregistration shall not be implemented earlier than after a lapse of
a reasonable period of time which shall be not less than three months after the relevant
notification to such holders.
2. Without prejudice to article 12, paragraph 5, a vessel which is or has been
registered in a State Party shall not be eligible for registration in another State Party
unless either:
(a) a certificate has been issued by the former State to the effect that the vessel has
been deregistered; or
(b) a certificate has been issued by the former State to the effect that the vessel will
be deregistered with immediate effect, at such time as the new registration is effected.
The date of deregistration shall be the date of the new registration of the vessel. Article
4. Maritime liens
1. Each of the following claims against the owner, demise charterer, manager or
operator of the vessel shall be secured by a maritime lien on the vesse l:
(a) claims for wages and other sums due to the master, officers and other members
of the vessel’s complement in respect of their employment on the vessel, including costs
of repatriation and social insurance contributions payable on their behalf;
(b) claims in respect of loss of life or personal injury occurring, whether on land
or on water, in direct connection with the operation of the vessel;
(c) claims for reward for the salvage of the vessel;
(d) claims for port, canal, and other waterway dues and pilotage dues;
(e) claims based on tort arising out of physical loss or damage caused by the
operation of the vessel other than loss of or damage to cargo, containers and passengers’
effects carried on the vessel.
2. No maritime liens shall attach to a vessel to secure claims as set out in
subparagraphs (b) and (e) of paragraph 1 which arise out of or result from:
(a) damage in connection with the carriage of oil or other hazardous or noxious
substances by sea for which compensation is payable to the claimants pursuant to
international conventions or national law providing for strict liability and compulsory
insurance or other means of securing the claims; or
(b) the radioactive properties or a combination of radioacti ve properties with
toxic, explosive or other hazardous properties of nuclear fuel or of radioactive products
or waste. Article 5. Priority of maritime liens
1. The maritime liens set out in Article 4 shall take priority over registered
mortgages, "hypothèques" and charges, and no other claim shall take priority over such
maritime liens or over such mortgages, "hypothèques" or charges which comply with the
requirements of Article 1, except as provided in paragraphs 3 and 4 of Article 12.
2. The maritime liens set out in Article 4 shall rank in the order listed, provided
however that maritime liens securing claims for reward for the salvage of the vessel
shall take priority over all other maritime liens which have attached to the vessel prior
to the time when the operations giving rise to the said liens were performed.
3. The maritime liens set out in each of subparagraphs (a), (b), (d) and (e) of
paragraph 1 of Article 4 shall rank pari passu as between themselves.
4. The maritime liens securing claims for reward for the salvage of the vessel shall
rank in the inverse order of the time when the claim secured thereby accrued. Such
claims shall be deemed to have accrued on the date on which each salvage operation
was terminated. Article 6. Other maritime liens
Each State Party may under its law grant other maritime liens on a vessel to secure
claims, other than those referred to in Article 4, against the owner, demise charterer,
manager or operator of the vessel, provided that such liens:
(a) shall be subject to the provisions of Articles 8, 10 and 12;
(b) shall be extinguished
(i) after a period of 6 months, from the time when the claims secured thereby arose
unless, prior to the expiry of such period, the vessel has bee n arrested or seized, such
arrest or seizure leading to a forced sale; or
(ii) at the end of a period of 60 days following a sale to a bona fide purchaser of
the vessel, such period to commence on the date on which the sale is registered in
accordance with the law of the State in which the vessel is registered following the
sale; whichever period expires first; and
(c) shall rank after the maritime liens set out in Article 4 and also after registered
mortgages, "hypothèques" or charges which comply with t he provisions of Article 1.
Article 7. Rights of retention
1. Each State Party may grant under its law a right of retention in respect of a
vessel in the possession of either:
(a) a shipbuilder, to secure claims for the building of the vessel; or
(b) a shiprepairer, to secure claims for repair, including reconstruction of the
vessel, effected during such possession.
2. Such right of retention shall be extinguished when the vessel ceases to be in the
possession of the shipbuilder or shiprepairer, otherwise than in consequence of an
arrest or seizure. Article 8. Characteristics of maritime liens
Subject to the provisions of Article 12, the maritime liens follow the vessel,
notwithstanding any change of ownership or of registration or of flag. Article 9.
Extinction of maritime liens by lapse of time
1. The maritime liens set out in Article 4 shall be extinguished after a period of one
year unless, prior to the expiry of such period, the vessel has been arrested or seized,
such arrest or seizure leading to a forced sale.
2. The one-year period referred to in paragraph 1 shall commence:
(a) with respect to the maritime lien set out in Article 4, paragraph 1(a), upon the
claimant’s discharge from the vessel;
(b) with respect to the maritime liens set out in Article 4, paragraph 1(b) to (e),
when the claims secured thereby arise;
and shall not be subject to suspension or interruption, provided, however, that time
shall not run during the period that the arrest or seizure of the vessel is not permitted by
law. Article 10. Assignment and subrogation
1. The assignment of or subrogation to a claim secured by a maritime lie n entails
the simultaneous assignment of or subrogation to such a maritime lien.
2. Claimants holding maritime liens may not be subrogated to the compensation
payable to the owner of the vessel under an insurance contract. Article 11. Notice of
forced sale
1. Prior to the forced sale of a vessel in a State Party, the competent authority in
such State Party shall ensure that notice in accordance with this article is provided to:
(a) the authority in charge of the register of the State of registration;
(b) all holders of registered mortgages, "hypothéques" or charges which have not
been issued to bearer;
(c) all holders of registered mortgages, "hypothèques or charges issued to bearer
and all holders of the maritime liens set out in Arti cle 4, provided that the competent
authority conducting the forced sale receives notice of their respective claims; and
(d) the registered owner of the vessel.
2. Such notice shall be provided at least 30 days prior to the forced sale and shall
contain either:
(a) the time and place of the forced sale and such particulars concerning the forced
sale or the proceedings leading to the forced sale as the authority in a State Party
conducting the proceedings shall determine is sufficient to protect the interests of
persons entitled to notice; or,
(b) if the time and place of the forced sale cannot be determined with certainty, the
approximate time and anticipat ed place of the forced sale and such particulars
concerning the forced sale as the authority in a State Party conducting the proceedings
shall determine is sufficient to protect the interests of persons entitled to notice.
If notice is provided in accordance with subparagraph (b), additional notice of the
actual time and place of the forced sale shall be provided when known but, in any event,
not less than seven days prior to the forced sale.
3. The notice specified in paragraph 2 of this article shall be i n writing and either
given by registered mail, or given by any electronic or other appropriate means which
provide confirmation of receipt, to the persons interested as specified in paragraph 1, if
known. In addition, the notice shall be given by press ann ouncement in the State where
the forced sale is conducted and, if deemed appropriate by the authority conducting the
forced sale, in other publications. Article 12. Effects of forced sale
1. In the event of the forced sale of the vessel in a State Party, a ll registered
mortgages, "hypothèques" or charges, except those assumed by the purchaser with the
consent of the holders, and all liens and other encumbrances of whatsoever nature, shall
cease to attach to the vessel, provided that:
(a) at the time of the sale, the vessel is in the area of the jurisdiction of such State;
and
(b) the sale has been effected in accordance with the law of the said State and the
provisions of Article 11 and this article.
2. The costs and expenses arising out of the arrest or seizure and subsequent sale of
the vessel shall be paid first out of the proceeds of sale. Such costs and expenses
include, inter alia, the costs for the upkeep of the vessel and the crew as well as wages,
other sums and costs referred to in Article 4, paragraph (a), incurred from the time of
arrest or seizure. The balance of the proceeds shall be distributed in accordance with
the provisions of this Convention, to the extent necessary to satisfy the respective
claims. Upon satisfaction of all claimants, the residue of the proceeds, if any, shall be
paid to the owner and it shall be freely transferable.
3. A State Party may provide in its law that, in the event of the forced sale of a
stranded or sunken vessel, following its removal by a public authority in the interest of
safe navigation or the protection of the marine environment, the costs of such removal
shall be paid out of the proceeds of the sale, before all other claims secured by a
maritime lien on the vessel.
4. If at the time of the forced sale the vessel is in the possession of a shipbuilder or
of a shiprepairer who under the law of the State Party in which the sale takes place
enjoys a right of retention, such shipbuilder or shiprepairer must surrender possession
of the vessel to the purchaser but is entitled to obtain satisfaction of his claim out of the
proceeds of sale after the satisfaction of the claims of holders of maritime liens
mentioned in Article 4.
5. When a vessel registered in a State Part y has been the object of a forced sale in
any State Party, the competent authority shall, at the request of the purchaser, issue a
certificate to the effect that the vessel is sold free of all registered mortgages,
"hypothèques" or charges, except those as sumed by the purchaser, and of all liens and
other encumbrances, provided that the requirements set out in paragraph 1(a) and (b)
have been complied with. Upon production of such certificate, the registrar shall be
bound to delete all registered mortgages, "hypothèques" or charges except those
assumed by the purchaser, and to register the vessel in the name of the purchaser or to
issue a certificate of deregistration for the purpose of new registration, as the case may
be.
6. State Parties shall ensure that any proceeds of a forced sale are actually
available and freely transferable. Article 13. Scope of application
1. Unless otherwise provided in this Convention, its provisions shall apply to all
seagoing vessels registered in a State Party or in a State which is not a State Party,
provided that the latter’s vessels are subject to the jurisdiction of the State Party.
2. Nothing in this Convention shall create any rights in, or enable any rights to be
enforced against, any vessel owned or operated by a State and used only on Government
non-commercial service. Article 14. Communication between State Parties
For the purpose of Articles 3, 11 and 12, the competent authorities of the States
Parties shall be authorized to correspond directly between themselves. Article 15.
Conflict of Conventions
Nothing in this Convention shall affect the application of any international
convention providing for limitation of liability or of national legislation giving effect
thereto. Article 16. Temporary change of flag
If a seagoing vessel registered in one State is permitted to fly temporarily the flag
of another State, the following shall apply:
(a) For the purposes of this Article, references in this Convention to the "State in
which the vessel is registered" or to the "State of registration" shall be deemed to be
references to the State in which the vessel was registered immediately prior to the
change of flag, and references to "the authority in charge of the register" shall be
deemed to be references to the authority in charge of the register in that State.
(b) The law of the State of registration shall be determinative for the purpose of
recognition of registered mortgages, "hypothèques" and charges.
(c) The State of registration shall require a cross-reference entry in its register
specifying the State whose flag the vessel is permitted to fly temporarily; likewise, the
State whose flag the vessel is permitted to fly temporarily shall require that the authority
in charge of the vessel’s record specifies by a cross -reference in the record the State of
registration.
(d) No State Party shall permit a vessel registered in that State to fly temporarily
the flag of another State unless all registered mortgages, "hypothèques" or charges on
that vessel have been previously satisfied or the written consent of the holders of all
such mortgages, "hypothèques" or charges has been obtained.
(e) The notice referred to in Article 11 shall be given also to the competent
authority in charge of the vessel’s record in the State whose flag the vessel is permitted
to fly temporarily.
(f) Upon production of the certificate of deregistration referred to in Article 12
paragraph 5, the competent authority in charge of the vessel’ s record in the State whose
flag the vessel is permitted to fly temporarily shall, at the request of the purchaser, issue
a certificate to the effect that the right to fly the flag of that State is revoked.
(g) Nothing in this Convention is to be understood to impose any obligation on
States Parties to permit foreign vessels to fly temporarily their flag or national vessels
to fly temporarily a foreign flag. Article 17. Depositary
This Convention shall be deposited with the Secretary -General of the United
Nations. Article 18. Signature, ratification, acceptance, approval and accession
1. This Convention shall be open for signature by any State at the Headquarters of
the United Nations, New York, from 1 September 1993 to 31 August 1994 an d shall
thereafter remain open for accession.
2. States may express their consent to be bound by this Convention by:
(a) signature without reservation as to ratification, acceptance or approval; or
(b) signature subject to ratification, acceptance or approval, followed by
ratification, acceptance or approval; or
(c) accession.
3. Ratification, acceptance, approval or accession shall be effected by the deposit
of an instrument to that effect with the de positary. Article 19. Entry into force
1. This Convention shall enter into force 6 months following the date on which 10
States have expressed their consent to be bound by it.
2. For a State which expresses its consent to be bound by this Convention after the
conditions for entry into force thereof have been met, such consent shall take effect 3
months after the date of expression of such consent. Article 20. Revision and
amendment
1. A conference of States Parties for the purpose of revising or amending this
Convention shall be convened by the Secretary -General of the United Nations at the
request of one-third of the States Parties.
2. Any consent to be bound by this Convention, expressed after the date of entry
into force of an amendment to this Convention, shall be deemed to apply to the
Convention, as amended. Article 21. Denunciation
1. This Convention may be denounced by any State Party at any time after the date
on which this Convention enters into force for that State.
2. Denunciation shall be effected by the deposit of an instrument of denunciation
with the depositary.
3. A denunciation shall take effect one year, or such longer period as may be
specified in the instrument of denunciation, after the receipt of the instrument of
denunciation by the depositary. Article 22. Languages
This Convention is established in a single original in the Arabic, Chinese, English,
French, Russian and Spanish languages, each text be ing equally authentic.
Done at Geneva this 6th of May one thousand nine hundred and ninety three.
In witness whereof the undersigned being duly authorized by their respective
Governments for that purpose have signed this Convention.
Index
Abuse of process
Admiralty jurisdiction, 2.24
anti-suit injunctions, 4.44, 12.7
arrest, 15.79, 15.119
Brussels Convention 1968, 4.44
Brussels Regulation, 4.44
Civil Procedure Rules, 12.157
delay, 11.42–11.46
examples of, 12.157, 15.79
finality, 25.1
jurisdiction, 12.111–12.112, 12.157
meaning, 12.157
striking out, 4.44, 11.43
want of prosecution, 11.43, 11.45
Access to courts, 0.12, 1.32
Acknowledgment of service
appearances by defendant, 5.34
arrest, 10.78
cautions against, 15.69
warrants, 15.58–15.60
claim forms, 10.75–10.78
default judgments, 10.77A, 10.78
freezing injunctions, 16.13
guarantees or letters of undertakings, 15.14 1
in personam actions, 9.52, 9.55–9.58, 9.63–9.64
in rem claims, 10.75–10.78, 10.84
Limitation of Liability Convention 1976, 24.82
prior to service, 10.75–10.76
procedure, 10.78
submission to the jurisdiction, 9.105
time limits, 9.52, 10.77
Acquiescence, 11.34, 11.38
Actions in personam. See In personam actions
Actions in rem. See In rem actions
Adjoining land, damage to, 2.108–2.109
Administration of Justice Act 1956
Admiralty jurisdiction, 0.25–0.26
arrest, 15.41
Arrest Convention 1952, 0.25, 0.34, 2.167
carriage of goods, 2.178, 2.180
charge, meaning of other, 2.12 1
damage received by a ship, 2.15–2.16, 2.139, 2.142
declaratory, as, 0.34
in personam actions, 2.244
in rem claims, 0.34, 10.3, 10.29, 10.32, 10.43
interim remedies, 0.26
loss of life, 2.169
maritime liens, 0.25, 2.43, 17.49, 17.52–17.53
mortgages, 2.127
nuclear damage, 12.148
personal injuries, 2.169
pilotage, 2.2 17
seaman’s wages, 2.81
security, 0.26
sister ships, 10.5 1–10.54
statutory interpretation, 0.34
statutory liens, 19.5
sweeping up clause, 2.13, 2.18–2.24
Administration orders
administrative receivers, 17.32
appointment of administrators, 17.33
disposal of property, 17.33
enforcement, 17.33
liens, 17.31–17.33
purpose of, 17.31
Administrative receivers, 17.32
Admiralty Court
Civil Procedure Rules, 2.230, 9.6–9.7
codification, 0.24, 2.27
collisions, 2.245
commencement of proceedings, 2.26
common law, 1.16, 1.22, 1.24–1.25
equity, 1.16, 1.24–1.25
in personam actions, 2.244, 9.7
in rem claims, 2.32, 10.1, 10.16
jurisdiction, 0.24, 1.16, 1.22–1.25
liens, 17.18
limitation of liability, 2.247, 24.82
Merchant Shipping Act 1995, 2.26, 2.29
Queen’s Bench Division, as part of, 1.22
Supreme Court Act 1981, 2.7–2.8
Supreme Court of Judicature, 1.14
Admiralty jurisdiction. See also In rem actions, Sources of Admiralty jurisdiction
19th century, since, 0.24
abuse of process, 2.24
Administration of Justice Act 1956, 0.25, 0.34
bottomry bonds, 2.96
choice of law, 26.23–26.27
Civil Jurisdiction and Judgments Acts, 0.30
equitable liens, 21.7
extension of, 0.24, 2.25
in rem claims, 2.138, 25.29–25.30
liens, 0.24, 17.16–17.63
limitation of liability, 2.246
loss of life, 2.168
maritime liens, 0.24, 18.5–18.27
mortgages, priority and, 23.97
salvage, 2.22
statutory liens, 19.22–19.24, 19.33, 19.38
enforcement, 18.6
in rem rights, 19.1, 19.5, 19.9 19.14
maritime liens, comparison with, 18.13 –18.27
origins of, 19.2–19.4
towage, 2.2 16
Admiralty Marshal. See Admiralty Marshal, powers during arrest of, Admiralty
Marshal’s fees and expenses
Admiralty Marshal, powers during arrest of, 14.31, 15.105 –15.116
cargo, 15.107, 15.109
charterers, 15.109
crew, provisions for, 15.105
custody, 15.106
English law, 15.105–15.116
hardship, 15.105
immobilisation of property, 15.105
insurance, 15.105
interference with property, 15.106
judicial sale, 14.126, 25.57–25.58
preservation of property, 15.105
service, 15.57
standard directions, 15.105
Admiralty Marshal’s fees and expenses, 1 5.54, 15.56
arrester’s expenses, 15.102
cargo, discharge of, 15.107
multiple arrests, 15.100–15.10 1
undertakings to pay, 15.99
warrants of arrest, 15.56, 15.97
ADR (Alternative dispute resolution), 0.14
Agencies. See Branches, agencies or other establishments
Agreements. See Arbitration agreements, Contract, Jurisdiction agreements
Aircraft, detention of, 20.60
Allocation of jurisdiction. See also Initial proceedings, allocation of jurisdiction
under the Brussels Convention and Regulation in, Multi -parties or actions, allocation of
jurisdiction and, Optional allocation of jurisdiction
European Judgments Regime, 5.2
exclusive jurisdiction, 5.17, 5.44
domicile, 5.77, 5.96
immovables, 5.20
initial proceedings, in, 6.1–6.198
Rhine Navigation Convention 1868, 6.71
Allocation of jurisdiction within the UK. See England, Scotland and Northern
Ireland, jurisdiction as between
Alternative dispute resolution, 0.14
Alternative security
arbitration, 15.129
arrest, 15.6–15.7, 15.127–15.141
Arrest Convention 1952, 15.24
bail, 15.6, 15.128, 15.132–15.137
Brussels Convention 1968, 15.13 1
Brussels Regulation, 15.13 1
charterparties, 22.6
Civil Jurisdiction and Judgments Act 1982, 15.129
damages, undertakings in, 15.128
declarations, 15.128
English law, 15.127–15.141 foreign
proceedings, 15.129 guarantees, 15.6,
15.128, 15.139–15.141
interim relief, 14.4
judicial sale, 25.56
jurisdiction, 15.130–15.131
limitation funds, 15.6
Lugano Convention, 15.13 1 maritime
liens, 15.6, 18.102 P&I Clubs, guarantees
provided by, 15.128
payments into court, 15.6, 15.128, 15.138
release from arrest, cautions against, 15.7
stay of proceedings, 15.129, 18.102
substitution for arrest, 15.128–15.141
undertakings, 15.6, 15.128, 15.139–15.141
Amendments
claim forms, 9.40–9.41, 10.79
delay, 11.32–11.35
in personam actions, 9.40–9.41
in rem claims, 10.79
Ancillary orders
appeals, 28.115
enforcement of judgments, 5.30
European judgments regime, judgments within the, 4.35, 28.18 –28.19
freezing injunctions, 16.4, 16.49–16.52
Anti-suit injunctions, 25.11–25.25
abuse of process, 4.44, 12.7
arbitration agreements, 4.30, 13.13–13.14, 13.20, 25.17, 25.23–25.25
arrest, 15.96
Brussels Convention, 4.44, 12.8, 25.16, 25.2 1 –25.22
Brussels Regulation, 4.44, 12.8, 25.16, 25.22
comity, 25.12, 25.17
delay, 25.20
English law, 12.7–12.8
excusive jurisdiction, 25.17
forum non conveniens, 25.18
jurisdiction,
agreements, 25.19–25.20
restrictions on, 12.7–12.8
Lugano Conventions, 12.8, 25.16, 25.2 1–25.22
multiple proceedings, 4.44, 25.14, 25.16, 25.20
New York Convention, 25.25
public policy, 28.57
purpose of, 25.11
striking out, 4.44
third parties, 6.196
vexatious and oppressive claims, 4.44, 25.18 –25.19
Antitrust laws of US, extraterritorial application of the, 25.26 –25.27, 27.57–27.58
Appeals. See also Appeals against recognition or enforcement within the European
judgments
arbitration awards, 13.44–13.50
enforcement and recognition of judgments of other courts in the UK, 27.17, 27.21,
27.24
fair trials, 0.17
recognition of foreign judgments, 27.17, 27.21, 27.24, 27.55
security for costs, 14.36
stay of proceedings, 4.51–4.52, 13.50
Appeals against recognition or enforcement within the European judgments, 28.85,
28.97–28.117
ancillary orders, 28.115
appearance, default of, 28.108
decisions on appeal, 28.114
declarations of enforceability, 28.97, 28.105 –28.108
defendant’s opportunity to put case, 28.108, 28.110 –28.114
delay, 28.98–28.99
domicile, 28.105
enforcement measures during appeal period, 28.97
further appeals, 28.115–28.117
national laws, 28.97, 28.102, 28.106–28.107, 28.113, 28.115, 28.117
notice, adequate, 28.110–28.111, 28.116
ordinary appeals, 28.102–28.103
protective measures, 28.97, 28.104
refusal of enforcement, appeals against, 28.109 –28.114
reservation of judgments, 28.10 1
review procedures, 28.102
security, 28.100, 28.104
service, 28.105
stay of proceedings, 28.81, 28.83, 28.98 –28.104
defendant’s opportunity to put case, 28.110
discretion, 28.100
free standing, 28.99–28.101
further appeals, 28.116
time limits, 28.98, 28.105
Appearances by defendant. See also Appearance, European Judgments Regime and
default of
acknowledgment of service, 5.34
arrest, caveats against, 5.34
bail, 5.34, 15.134
England, Scotland and Northern Ireland, jurisdiction as between, 7.13, 7.18
English law, 5.34
European Judgments Regime, applicability of, 5.3 1 –5.34
exclusive jurisdiction, 5.31
foreign judgments, enforcement of, 27.39
in rem claims, 5.34
interlocutory proceedings, 5.34
jurisdiction, 5.3 1–5.34
jurisdiction agreements, 5.69
national laws, 5.32
Appearance, European Judgments Regime and default of appeals, 28.108
conduct or acts of defendant, relevance of, 28.68 –28.69
defence sufficient time for preparation of defence, 28.64–28.65, 28.72
enforcement of judgments, 28.58–25.72
fair hearings, 28.65
Hague Service Convention, 28.60, 28.63
in personam actions, 9.6 1–9.62
instituting proceedings, documents, 28.71–28.72
jurisdiction, connection with the requirement of, 28.60–28.6 1
recognition of judgments, 28.52, 28.58–28.72
scope of enquiry by enforcing court, 28.66 –28.67
service, 28.58–28.63, 28.66–28.69, 28.72
Applicability of Brussels Convention and Regulation, 5.1 –5.113. See also
Proceedings to which Brussels Convention and Regulation applies
allocation of jurisdiction, 5.2
appearances by defendants, 5.3 1–5.34
Athens Protocol, 5.13–5.14
EC law, incorporation into, 5.14
Bunkers Convention, 5.12
Community instruments, 5.11–5.14
decisions affecting participation in conventions inconsistent with regime, 5.12 –
5.14
deemed domicile, 5.72–5.74
Denmark, 5.7
domicile, 5.4–5.6, 5.16A, 5.72–5.74, 5.77–5.113
enforcement of judgments, conventions with noncontracting states, 5.8
exclusive jurisdiction, 5.17–5.30
exorbitant jurisdiction, rules on, 5.5
Fund Convention, 5.12
HNS Convention, 5.12
initial proceedings, 5.16A
Italian Code,
jurisdiction agreements, enforceability of, 5.7
jurisdiction over foreign nationals, 5.7
jurisdiction agreements, 5.35–5.7 1
enforceability of, 5.7
Italian Code, 5.7
jurisdiction bases, 5.16
limitation of liability actions, 5.9–5.10, 5.75–5.76, 24.116–24.126
national law, 5.2–5.10
exorbitant jurisdiction, rules on, 5.5
extension of scope of rules on, 5.5–5.8
nationality, 5.5–5.6
priorities recognised the regime, 5.11 –5.14
property, presence of, 5.6
recognition of judgments,
Athens Protocol, 5.13
non-contracting states, conventions with, 5.8
residence, 5.6–5.7
seizure of property, 5.6
service,
Denmark, 5.7
presence of defendant in contracting state, 5.6
treaties and conventions,
non-contracting states, with, 5.8
precedence of other, 5.15
recognition of judgments, 5.8
Applicable law
arbitration agreements, 13.3 1–13.32
Civil Liability Convention 1992, 24.142
connecting factors, 2.11
contract, 26.56, 26.59, 26.73, 26.79, 26.83
additional law, 26.95–26.99
ambit of, 26.57
floating, 26.56
no choice of law, where there is, 26.106 –26.118
putative, 26.59–26.62, 26.75
Rome Convention 1980, 26.93–26.94
substitution for, 26.95–26.99
floating choice of law, 26.56
general average, 26.154–26.157
Hazardous and Noxious Substances Convention, 24.159, 24.161 –24.162
insurance contracts, 26.118
IOPC Fund, 24.149
limitation fund, 24.122, 24.142
Limitation of Liability Convention 1976, 24.116 –24.126
pilotage, 24.170
putative choice of law, 26.59–26.62, 26.75
Rome Convention 1980, 26.93–26.94, 26.116
tort, 26.127
Application of foreign law. See Foreign law, application of
Appropriate forum, 9.93–9.98
arbitration clauses, 9.95
burden of proof, 9.94
collision claims, 9.97
discretion, 9.96
England, as, 9.93–9.98
factors, 9.94
limitation of liability claims, 9.97
reasonable prospect of success, 9.96
service aboard, 9.93–9.98
stay of proceedings, 9.94–9.95
Arbitration, 13.1–13.60. See also Arbitration agreements, Arbitration awards,
Interim relief, arbitration and
alternative security, arrest and, 15.129
civil or commercial matters, 4.25, 4.28–4.30
courts, 0.13
delay, 11.1, 11.14, 11.28
foreign law, application of, 26.14
Hamburg Rules, 15.30
jurisdiction agreements, 12.58–12.61
Limitation of Liability Convention 1976, 24.44, 24.50
litigation or, 12.58–12.6 1
sovereign immunity, 12.12 1
UNCITRAL Model Law on Arbitration, 13.4 –13.8
Arbitration agreements, 12.88–12.92
anti-suit injunctions, 4.30, 13.13–13.14, 13.20, 25.17, 25.23–25.25
applicable law, 13.3 1–13.32
appropriate forum, 9.95
Arbitration Act 1996, 13.17, 13.21, 13.23 –13.34, 13.40–13.51
arbitration awards, 13.48
arrest, 12.89–12.92, 15.84–15.94
assignment, 13.17
Brussels Convention 1968, 13.12–13.15, 13.22
Brussels Regulation, 13.12–13.15, 13.22–13.23
choice of law, 26.16, 26.55, 26.7 1–26.84
civil or commercial matters, 4.28–4.30
Civil Procedure Rules, 12.91, 13.23
claim forms, issue of, 15.94
close connection, 13.31, 13.34–13.35
conflict of laws, 13.31
curial law, 13.34–13.36
default judgments, 13.19
enforceability of, 13.37–13.41
enforcement of arbitration awards, 2.201–2.205
English law, 12.88, 13.2–13.41
exclusive jurisdiction agreements, 13.13
floating proper law, 13.32
Hague-Visby Rules, 11.18
international agreements, 13.2–13.41
jurisdiction, 12.88–12.92, 13.21–13.22
jurisdiction agreements, 12.56, 12.58–12.61
litigation and, 13.17–13.20
Lugano Convention, 13.12–13.15, 13.22
mandatory jurisdiction, 13.21, 13.28–13.29
multiple proceedings, 13.14, 13.19, 13.38
practice, rules of, 13.36
priority, 12.13
procedure, law governing, 13.34–13.36
proper law, 13.32
protective measures, 13.20
Rome Convention 1980, 13.11
salvage, 6.169
seat of arbitration, 13.25–13.26
security, 12.90–12.92
selection by the parties, 13.28–13.30
separability, 13.37–13.38
service out of the jurisdiction, 13.23–13.24
stay of proceedings, 13.1, 13.27–13.28 Arbitration Act 1996, 12.88
arrest, 15.84–15.94
enforceability, 13.38–13.41
jurisdiction, 13.21
substantive matters, law to be applied to, 13.28 –13.38
UNCITRAL Model Law on Arbitration, 13.5–13.7
validity of, 4.29–4.30
writing, 13.17
Arbitration awards. See also Enforcement of arbitration awards appeals, 13.44 –
13.50
Arbitration Act 1996, 13.47
arbitration agreements, 13.48
arrest, 15.65–15.67
Civil Procedure Rules, 13.47–13.49
Court of Appeal, 13.50
delay in finality of, 13.46
enforcement and recognition of judgments of other courts in the UK, 27.12 –27.13
English proceedings, 13.60
fair hearings, 13.49
finality, 13.46, 25.1–25.5
House of Lords, 13.50
in rem claims, 2.201–2.206
interest, 25.39
maritime liens, 18.118
reasons, 13.45, 13.49
reviews, 13.45–13.50
setting aside, 13.51
stay of proceedings, appeals against, 13.50
Supreme Court 1981, 13.50
use or hire of ship, claims relating to, 2.20 1 –2.206
Arbitration clauses. See Arbitration agreements
Arbitration, time limits and, 13.5 1 –13.56
Arbitration Act 1996, 13.54, 13.59
arbitration awards, 13.47, 13.51
commencement of proceedings, 13.52,13.54
delay,
proceedings, in, 13.51–13.56
prosecution, in, 13.57–13.59
extension of, 13.52–13.53,13.55–13.56, 13.59
inordinate and inexcusable delay, 13.57–13.58
power of tribunal, 13.57
stay of proceedings, 13.53
summary judgments, 13.55–13.56
Arrest, 15.1–15.5. See also Alternative security, arrest and, Arrest Convention
1952, Arrest Convention 1999, Arrest, English law and, Arrest, security for, Arrest,
third party rights and, Cautions against arrest, Warrants of arrest
acknowledgment of service, 10.75–10.78
Admiralty Marshal, 14.31
fees and expenses, 15.99–15.102, 15.107
powers of, 15.105–15.116
arbitration,
interim relief, 14.56–14.58, 14.79 bail, 10.11,
10.83, 18.104–18.106 branches, agencies or
other establishments, 6.178
Brussels Convention 1968, 14.72–14.79, 28.17
Brussels Regulation, 14.72–14.79, 28.17
bunkers, 18.33
cargo, 15.107, 15.109, 15.115
categorisation as provisional measure, 14.72–14.79, 15.2–15.3
caveats against, 5.45
charterers, 15.109
civil law, 15.3–15.4
claim forms, 14.72, 15.1
CMR Convention, 15.32
collisions, 11.24, 15.10, 15.26–15.27
co-ownership, 2.125
Crown proceedings, 12.14 1
custody, 15.106
delay, 11.50
discretion, 2.125
England, Scotland and Northern Ireland, jurisdiction as between, 7.5
evidence, 14.31
guarantees or letters of undertakings, 18.109
Hamburg Rules, 6.46, 15.10, 15.28–15.3 1
harbour authorities, 20.57, 20.59
hardship, 15.105
Hazardous and Noxious Substances Convention, 6.79
immobilisation of property, 15.105
in personam actions, 9.65, 14.74– 14.75
in rem actions, 14.74–14.75, 15.1, 15.5
bail, 10.11, 10.83
substantive jurisdiction, 10.61
insurance, 15.105
interference with property, 15.106
interim relief, 14.4, 14.31, 14.84, 14.86
intervention, 15.114–15.115
judgments, 18.117, 25.67, 25.68
judicial sale, 15.2
jurisdiction, 15.5
merits, on the, 15.2–15.4
limitation fund, 24.112
limitation of liability, 15.10, 15.33–15.36, 24.47
maritime liens, 1.5, 2.37, 17.59–17.60, 18.29, 18.33–18.35
creation, 15.11
enforcement, 10.20–10.21, 10.81, 15.11
English law, 15.53
extinction of, 18.92–18.93
in rem actions, 17.40
Maritime Liens and Mortgages Conventions, 15.8, 15.11, 15.38, 18.123, 18.127,
18. 132
multiple arrests, 15.100–15.10 1
multiple proceedings, 14.72, 14.74–14.75
payments into court, 18.108
possessory liens, 20.21
preservation of property, 14.28, 15.105
priority, 15.4
provisional measures, as, 14.72–14.79, 15.2–15.3, 25.36
release, 15.118–15.121, 15.124
Limitation of Liability Convention 1976, 15.34 –15.3 5
saisie conservatoire, 15.2
seamen, provisions for, 15.105
security, 14.42–14.44
seisin, 12.30
sister ships, 2.17
standard directions, 15.105
statutory liens, 19.10, 19.18–19.19, 19.25, 19.38
undertakings, 15.1, 15.99
wrongful arrest, 15.117
Arrest Convention 1952, 15.8–15.15
Administration of Justice Act 1956, 2.167
allocation of jurisdiction in initial proceedings, 6.5
bail, 6.17
beneficial owners, 10.37–10.38
Brussels Convention 1968, 6.15–6.18, 14.75, 15.9, 15.22–15.25, 15.37
Brussels Regulation, 6.19–6.2 1, 15.9, 15.22–15.25, 15.37
cautions against arrest, 15.72
claim forms, issue of, 14.76–14.78
Collision Jurisdiction Convention, 14.77
construction of ships, 2.223
damage to ships, claims relating to, 2.17
demise charters, 10.48
disbursements, 2.232
English law, 3.29–3.30, 15.40–15.46, 15.55, 15.88
equipment, 2.223
foreign proceedings, effect of, 12.86
general average, 2.23 5
goods, loss or damage to, 2.175
habitual residence, 15.13
in rem actions, 10.3–10.4, 10.25, 10.29–10.34, 14.75–14.78
initiation of proceedings, 6.12–6.2 1
interpretation 0.34
jurisdiction, 0.29, 3.29–3.30, 6.12–6.18
agreements, 6.15
base, arrest as, 15.24–15.25
mandatory, 6.14
merits, on the, 15.12, 15.14–15.15, 15.22–15.23, 15.39
Limitation of Liability Convention 1976, 6.63–6.64, 24.26
list of claims, 3.29
loss of life, 2.167, 2.169–2.170
Lugano Convention, 15.9, 15.22–15.25, 15.37
mandatory jurisdiction, 6.14
masters’ disbursements, 2.232–2.233
master’s wages, 2.224
meaning of arrest, 15.12
meaning of maritime claims, 2.1
national laws, 15.15, 15.37 non-
contracting states, vessels of, 15.13
operation or maintenance, goods supplied for, 2.2 18, 2.22 1
parties, 15.9
personal injuries, 2.167, 2.169–2.170
principal place of business, 15.13
priority between courts, 6.16, 6.19–6.20
provisional measure, arrest as, 15.9, 15.12, 15.22 –15.23, 15.36
ratification, 0.11
release of security, 15.14, 15.25
repairs, 2.223
salvage, 6.168–6.169
scope, 3.29, 6.13
seamen’s wages, 2.224
siesed, court first, 6.16
service of claim forms, 3.30
sister ships, 10.49–10.50
statutes, compliance through 0.35–0.36
substantive jurisdiction, 15.22–15.23
Supreme Court Act 1981, 0.273.30
Arrest Convention 1999, 15.8–15.9, 15.16–15.21
accession, 6.23
charterers, 15.19
definition of arrest, 15.17
English law, 15.45
exclusions, 15.18
initiation of proceedings, 6.22–6.23
judicial or forced sale, 15.19
jurisdiction on the merits, 15.16, 15.21
meaning of maritime claims, 15.19
multiple arrests, 15.74
national laws, 15.16, 15.19, 15.21
non-sea-going ships, 15.17
ownership, 15.19
powers of arrest, 15.19–15.20
priority, 6.23
re-arrest, 15.20
release, security of, 15.20–15.2 1
time limits, 15.21
Arrest, English law and, 15.1, 15.5, 15.11, 15.40 –15.125
Admiralty Marshal,
fees and expenses, 15.54, 15.56, 15.99–15.101
powers of, 15.105–15.116
alternative security, 15.127–15.141
anti-suit injunctions, 15.96
applications for arrest, 15.56
arbitration agreements, 15.84–15.94
arbitration awards,
arrest after, 15.65–15.67
enforcement of, 15.65
Arrest Convention 1952, 15.40–15.46, 15.55, 15.88
ratification of, 15.41
Supreme Court Act 1981, 15.45
cargo, 15.52, 15.54, 15.116
caution against arrest, 15.69–15.72
charterers, 15.42
Civil Jurisdiction and Judgments Act 1982, 15.44, 15.86 –15.95
claim forms,
issue of, 15.94
damages, cross-undertakings in, 15.95
enforcement of foreign judgments, 15.64
enforcement of judgments, 15.64, 15.144
fees and expenses, 15.54, 15.56, 15.99 –15.104, 15.116
foreign arrest, restraining, 15.96
foreign judgments,
issue estoppel, 15.64
registration of, 15.64
foreign jurisdiction, 15.84–15.96
freight, 15.52, 15.54
further ships, arrest of, 15.43, 15.55, 15.74
government ships and other property, 15.76–15.78
in personam actions, 15.41, 15.66–15.67
in rem actions, 15.40–15.46, 15.52, 15.55
stage of proceedings, 15.62–15.67
warrants and, 15.56–15.61
issue estoppel, 15.64, 15.66
judgments,
arrest after, 15.63–15.67
execution of, 15.64, 15.144
judicial sale, 15.125–15.126
jurisdiction on the merits, 15.44, 15.80–15.95
jurisdictional rules, 15.41
legislative powers, under, 15.142–15.143
multiple arrest, 15.74–15.75
multiple proceedings, 15.44
owners, 15.42
parts of ship, 15.52–15.53
procedure, 15.97–15.116
property liable to, 15.52–15.55
provisional measure, as, 15.40, 15.44, 15.62
re-arrest, 15.73
release, 15.118–15.124
discretion, 15.91
repatriation of crew, expenses of, 15.102
restraining foreign arrest, 15.96
seizure, 15.144
service, 15.75
sister ships, 15.55
stage in proceedings when arrest available, 15.6 2–15.67
stay of proceedings, 15.44, 15.84–15.94
Supreme Court Act 1981, 15.42, 15.45, 15.55, 15.65, 15.75
termination of arrest, 15.118–15.124
third party rights, 15.108–15.112
undertakings, 15.54, 15.95
Arrest, security for, 14.74, 15.3–15.5
Arrest Convention 1952, 6.17–6.18, 14.76–14.77, 15.14, 15.24–15.25, 15.38
Arrest Convention 1999, 6.22, 15.19–15.21
bankruptcy, 15.47–15.48 counter-
security, 15.50–15.5 1 damages,
undertakings in, 15.50, 15.95
discretion, 15.51
English law, 15.42–15.51, 15.88–15.95, 15.127–15.141
excessive, 2.24
guarantees, 15.61
liquidation, 15.47, 15.49
multiple arrest, 15.51, 15.74
P&I clubs, guarantees provided by, 15.61
re-arrest, 15.20, 15.51, 15.73
release, 10.83, 15.14, 15.20–15.21, 15.25, 15.89
undertakings, 15.61
Arrest, third party rights and, 15.108–15.112
cargo, expenses of discharge of, 15.116
cautions, 15.109–15.113
claim forms, 15.109–15.110
English law, 15.108–15.112
expenses, 15.116
intervention, 15.114–15.115
remedies, 15.109
warrants of arrest, 15.109
Assignment
choice of law, 26.98, 26.184
freight, 23.152–23.153
insurance policies, 10.47
maritime liens, 18.87–18.88
Maritime Liens and Mortgages Conventions, 18.142, 18.145
proprietary interests, 26.184
statutory liens, 23.152–23.153
Associations. See Corporations and associations
Athens Convention 1974, 1.37
Brussels Convention 1968, 5.13–5.14, 6.59–6.60
Brussels Regulation, 5.13–5.14, 6.59–6.60
conflict of conventions, 3.21, 3.24
damages, 11.21
delay, 11.21–11.22
direct enactment of, 3.19, 3.20–3.24
disembarkation, time limits starting from, 11.2 1 –11.22
EC law, incorporation into, 3.18, 5.14
entry into force, 6.58
jurisdiction, 3.21–3.24, 6.57–6.60
jurisdiction agreements, 6.59, 12.68–12.69, 12.72
limitation of liability, 3.24, 24.21–24.22
Merchant Shipping Act 1995, 3.20–3.23
notice of claims, 11.12
parties, 6.58, 6.60
protocol, 3.18, 3.24, 5.13–5.14, 6.58, 28.40
scope of, 3.21
service, 9.70
United Kingdom, 3.21, 3.23
Attachment
foreign, 18.17–18.25
maritime liens, 18.17–18.25, 18.29, 26.169–26.170
Awards. See Arbitration awards
Baggage, loss or damage to, 2.176, 6.108
Bail
amount of, 15.133
appearance of defendant, 5.34, 15.134
arrest, 18.104–18.106
alternative security, as, 15.6, 15.128, 15.132 –15.137
convention, 6.17
bonds, 15.132, 15.135–15.136
English law, 15.132–15.137
foreign bail, 15.136
freight, 18.39
in rem actions, 10.11, 10.83, 25.52
Maritime Liens and Mortgages Conventions, 18.123
protest, under, 15.135
re-arrest, 18.104–18.106
representation of ship, as, 15.133
service, 15.134
submission to jurisdiction, as, 15.134–15.135
sureties, 15.132, 15.135–15.136
Bailment, 20.13–20.14, 20.44, 23.49–23.5 1
Bankruptcy
arrest, security for, 15.47–15.48
civil or commercial matters, 4.25
corporations and associations, 5.22
liens, 17.34, 18.89, 18.111–18.112
Bills of lading
choice of law, 26.75
equitable liens, 21.9, 21.15
jurisdiction agreements, 5.48, 5.59
pledges, 23.106
priority, 23.92, 23.106
Register of British Ships, 23.26, 23.31, 23.39
Bills of sale
meaning, 23.58
purpose of, 23.57
registration, 23 .2 1–23 .22, 23.31, 23.57–23.59
title, priority and, 23.2 1–23.22, 23.31,
Book debts, 23.62, 23.69
Bottomry bonds
cargo claims, 18.42
charterers, 18.73
definition, 2.96
freight, 18.42
hypothecation, as, 2.99
in personam actions, 2.23 9
loans, 2.97
maritime liens, 2.23, 2.96–2.100, 2.239, 23.145
enforceability, 18.42, 18.57–18.59, 18.63, 18.73
extinction of, 18.76, 18.80
salvage liens, 23.144
wages claims, priority of, 23.140
masters’ disbursements, 2.100
mortgages,
distinguished from, 2.99
priority, 23.99
necessaries, 2.100
priority, 23.99
repayments, 2.98
respondentia, 2.23, 2.10 1
risk, 2.97
salvage, 6.168, 23.144
security, 2.98–2.100
sister ships, 2.23, 2.99
wages claims, 23.140
Branches, agencies or other establishments
arrest, 6.178
Brussels Convention 1968, 6.170–6.178
business, place of, 6.177
commercial agents, 6.172
commercial business, 6.175
connecting factors, 6.172–6.173, 6.176
consumer contracts, 6.119
distributors, 6.172
domicile, 6.101, 6.104, 6.119, 6.170–6.178
England, Scotland and Northern Ireland, jurisdiction a s between, 7.21
external evidence, 6.174–6.176
insurance contracts, domicile and, 6.10 1, 6.104
maritime possessory liens, 20.60
optional allocation of jurisdiction, 6.170 –6.178
possessory liens, 20.33, 20.60
parents, 6.174, 6.177–6.178
service, 9.42–9.45, 9.49–9.50
Brussels Convention 1968, 1.39–1.44, 1.50. See also Applicability of Brussels
Convention and Regulation, Judgments and settlements within the European judgments
regime
accession, 1.35, 1.44, 3.41, 3.43
alternative security, 15.131
anti-suit injunctions, 4.44, 12.8, 25.16, 25.21 –25.25
application of, 4.6, 4.22–4.44
arbitration,
agreements, 13.12–13.15, 13.22
arrest, 14.72–14.79
Arrest Convention 1952, 6.15–6.18, 14.75, 15.9, 15.22–15.25, 15.37
Athens Convention 1974, 6.59–6.60
branches, agencies or other establishments, 6.170 –6.178
Brussels Regulation, 1.35, 1.45, 3.14–3.16, 3.42–3.44, 4.2–4.4
Bunkers Convention 2001, 6.40
civil and commercial matters, 1.40, 1.42, 4.23–4.30
Civil Jurisdiction and Judgments Act 1982, 0.30 –0.32, 1.42, 1.47, 3.4 1–3.42, 4.18
Civil Liability Convention 1992, 6.30, 6.34 –6.35, 24.163
CMR Convention, 6 .55–6 .5 6
co-defendants, 6.188–6.192
connecting factors, 4.5–4.6, 6.122–6.123
consumer contracts, 6.115–6.120
contract, matters relating to a, 6.132–6.13 9
corporations, 4.19, 5.22–5.24, 5.101–5.109
counterclaims, 6.197
Denmark, 3.43, 5.1
domicile, 4.6–4.7, 4.13–4.14, 4.19, 5.77–5.113, 6.9–6.158
companies, 4.19
contract, 6.96, 6.100, 6.129–6.149
deemed, 5.72–5.74, 5.94, 5.96
employment contracts, 6.152–6.153
enforcement and recognition of judgments of other courts in the UK, 27.10
England, Scotland and Northern Ireland, jurisdiction as between, 7.1 –7.31
European Court of Justice, 1.40, 4.9
exclusive jurisdiction, 5.43–5.44, 12.52
foreign arbitration awards, enforcement of, 27.63
forum conveniens, 12.105, 12.107
foreign judgments, enforcement of, 27.8, 27.25, 27.42
foreign proceedings, intervention in, 4.44
Gibraltar, 27.25
Hague Convention on Service Abroad, 6.85
Hague Rules, 6.43–6.44
Hague-Visby Rules, 6.43–6.44
Hamburg Rules, 6.48
Hazardous and Noxious Substances Convention, 6.78, 24.163
immovables, 5.19–5.2 1, 5.198
in rem actions, 10.63–10.65, 10.82
influence of, 3.48–3.51
initial proceedings, allocation of jurisdiction in, 4.42 –4.43, 6.1–6.198
insurance contracts, domicile and, 6.96, 6.100
interim relief, 14.12, 14.46–14.52, 14.60–14.83
interpretation, 1.40, 3.50, 4.9–4.12
irreconcilable judgments, 4.42, 12.47–12.49
judgments, 5.29–5.30
judicial co-operation, 3.43
jurisdiction,
agreements, 5.43–5.71, 12.72
bases, 3.41–3.51
consideration of, 4.45–4.54
multi-parties or actions, 6.183–6.198
restrictions on, 12.1–12.24, 12.28–12.33
limitation of liability, 6.88–6.89, 24.30, 24.131
1976 Convention, 6.6 1–6.6.66, 24.89–24.92, 24.110–24.115
applicability of, 4.34, 5.9–5.10, 5.75–5.76
court hearing actions for, 5.75–5.76
linked proceedings, 6.181–6.182
Lugano Convention, 1.36, 1.44, 3.43, 3.47, 8.1–8.9
Luxembourg, 6.130
Multimodal Convention 1980, 6.50
multi-parties or actions, allocation of jurisdiction and, 6.183–6.198
multiple proceedings, 4.42, 12.9–12.24, 12.33–12.52
national laws, 4.13–4.15
nuclear damage, 6.38–6.39
place of performance, 6.140–6.157
place where harmful event occurred, 6.162 –6.167
preliminary rulings, 4.9, 4.11–4.12
preventative measures, 4.43
provisional proceedings, 4.42–4.43, 14.60–14.69
public registers, 5.25–5.27
relevance of, 4.1
reports, 4.10
restitution, 26.146
Rhine Navigation Convention 1868, 6.71–6.72
salvage, 6.168–6.169
scope, 3.49–3.50
seised, court, 4.14, 12.27–12.34
service, 3.48, 3.50, 4.16, 6.85, 9.68, 9.70–9.7 1, 9.78
substantive connection, 1.41
third parties, 6.193–6.196
tort, delict or quasi-delict, matters relating to, 6.159–6.167
reference to other, 6.2–6.10
relationship with, 4.17
trespass, 12.152
trusts, domicile of, 4.19
types of proceedings, 4.42–4.44
United Kingdom
application within the, 4.18–4.20
territories, application to other, 4.21
Brussels Regulation 2004, 1.34–1.35, 1.50. See also Applicability of Brussels
Convention and Regulation, Judgments and settlements within the European judgments
regime
accession, 1.35
anti-suit injunctions, 4.44, 12.8, 25.16, 25.22
application of, 1.35, 3.42, 4.6, 4.22 –4.44
arbitration agreements, 13.12–13.15, 13.22–13.23
arrest, 14.72–14.79
Arrest Convention 1952, 6.19–6.21, 15.9, 15.22–15.25, 15.37
Brussels Convention 1968, 1.35, 1.45, 3.14 –3.16, 3.42–3.44, 4.2–4.4
civil and commercial matters, 4.23–4.30
Civil Jurisdiction and Judgments Acts, 0.31 –0.32
Civil Liability Convention 1992, 6.3 1–6.33, 6.36, 24.163
CMR Convention, 6 .55–6 .5 6
connecting factors, 4.6, 6.121
consumer contracts, 6.116–6.120
corporations, 4.19, 5.103–5.107
documents, 3.46
domicile, 4.6–4.7, 4.13, 4.15, 6.90–6.198
corporations, 4.19
deemed, 5.72–5.74, 5.94, 5.96
draft, 3.44
employment contracts, 6.155
English law, enactment into, 3.42
entry into force, 3.42, 3.46, 4.1
European Court of Justice, 3.44, 4.8
foreign judgments, enforcement of, 27.8, 27.42
forum conveniens, 12.105
Fund Convention, 6.32–6.33, 6.36
Hamburg Rules, 6.49
in rem actions, 10.66, 10.82
initial proceedings, 4.42–4.43, 6. 1–6.198
interim relief, 14.12, 14.46–14.52, 14.60–14.83
interpretation, 4.1, 4.9–4.12
irreconcilable judgments, 4.42
judicial co-operation, 3.44–3.45
jurisdiction,
agreements, 5.35, 5.37, 5.46, 5.50–5.52, 5.55–5.57, 5.61–5.71, 12.72
bases, 3.41–3.51
multi-parties or actions, 6.183
restrictions, 12.1–12.24
languages, 4.8
1976 Convention, on, 6.6 1–6.66, 24.26, 24.92, 24.110–24.115
applicability of, 5.75–5.76
linked proceedings, 6.181
Lugano Convention, 1.46, 8.10–8.11
Luxembourg, 6.13 1
multi-parties or actions, allocation of jurisdiction and, 6.183
multiple proceedings, 4.42, 12.9–12.24, 12.46–12.51
place of performance, 6.141, 6.148, 6.155
preventative measures, 4.43
provisional proceedings, 4.42–4.43, 14.60–14.69
Rhine Navigation Convention 1868, 6.71 –6.72
scope, 3.49–3.50
seised, court, 4.15, 12.3 1–12.32
service, 3.48, 3.50, 4.17, 6.85, 9.68, 9.70, 9.78
third parties, 6.193, 6.196
tort, delict or quasi-delict, 6.158–6.167
relationship with, 4.17
trespass, 12.152
trusts, domicile of, 4.19
types of proceedings, 4.42–4.44
United Kingdom,
application within the, 4.18–4.20
territories, application to other, 4.21
Bunkers. See also Bunkers Convention 2001
arrest, 18.33
in personam claims, 18.33
Bunkers Convention 2001
European Judgments Regime, applicability of, 5.12, 28.39, 28.41
initiation of proceedings, 6.40
jurisdiction, 6.40
limitation of liability, 24.150–24.151
oil pollution, 6.40
Canal owners, limitation of liability and, 24.17 1–24.172
Cargo
Admiralty Marshal, powers during arrest of, 15.107, 15.109
arrest, 15.107, 15.109, 15.115
English law, 15.52, 15.54, 15.116
bottomry, 18.42
charterparties, 22.11–22.12, 22.16–22.20, 22.29
Crown proceedings, 12.146
discharge of, 15.109, 15.116
expenses, 15.107, 15.116
intervention, 15.115
maritime liens, 18.38, 18.41–18.44
maritime possessory liens, 20.44–20.45, 20.47
mortgages,
priority and, 23.92
owner’s lien on cargo, 22.16–22.20
possessory liens, 2.237–2.238, 17.21, 22.16
priority, 23.42, 23.92
proprietary interests, 26.162, 26.182
respondentia, 2.23, 18.42
sale of, 23.42
salvage, 6.168–6.169, 18.43
statutory liens, 19.33, 19.35, 19.38, 23.150
third party rights, 15.116, 22.17–22.20
title, priority and, 23.41
Carriage by road. See CMR Convention
Carriage of goods. See also Hague Rules, Hague-Visby Rules
agreements on the, claims arising out of, 2.178–2.19 1
arbitration awards, 2.181, 2.188
Arrest Convention, 2.182, 2.187
CIF contracts, 2.185
common carriers, 20.30
county court, 2.179
damage to goods, 2.178
demurrage, 2.185–2.186
direct connection, 2.183–2.187
in rem actions, 2.178–2.191
insurance contracts, 2.183–2.184, 2.187–2.188
Limitation of Liability Convention 1976, 24.2 1 –24.23
salvage, best endeavours and, 2.189
tort, 2.182
Carriage of passengers. See Athens Convention 1974
Case management
alternative dispute resolution, 0.14
delay, 11.2, 11.4, 11.40
security for costs, 14.35, 14.41
Categories of enforceability, 2.30–2.247
in rem actions, 2.3 1–2.239
Cause of action estoppel
foreign judgments, enforcement of, 27.1, 27.3 –27.4
finality, 25.1, 25.3–25.4
Cautions against arrest
Admiralty and Commercial Register, 15.69
applications, 15.111
arrest, 15.69–15.72
cargo, 15.72
damages, 15.113
delay in release of property, damages for, 15.113
duration of, 15.70
limitation fund, setting up of a, 15.69
notice, 15.69, 15.111
release, 15.2, 15.7, 15.118
renewal, 15.70
searches, 15.70, 15.98 security,
15.69, 15.72 statutory liens,
15.111 third party rights, 15.109–
15.113
warrants of arrest, setting aside, 15.112
withdrawal of, 15.112 wrongful arrest, 15.117
Certainty, principle of, 5.78–5.80, 6.159, 6.163
Cesser clauses, 22.32
Characteristic performance, 28.86, 26.106–26.117
Charges. See also Charges, priority and
charging orders, 23.176
equitable, 2.129, 21.1–21.5, 21.7, 23.154–23.157, 23.176
equitable liens, 21.2–21.5, 21.7, 21.10, 23.130
floating charges, 2.129
foreign, 2.130
liens,
comparison with, 17.3, 17.7–17.10
equitable, 21.2–21.5, 21.7, 21.10
floating charges, 17.9–17.10
meaning, 17.7
mortgages, 17.7
purpose of, 17.3
registration of, 23.63, 23.69
Maritime Liens and Mortgages Conventions, 18.138, 18.143
meaning, 2.12 1, 2.128–2.129
mortgages, 2.129, 17.7
Charges, priority and, 23.167
charging orders, 23.10 1
equitable charges, 23.100, 23.103–23.104
registration, 23.103
security, 23.52–23.55, 23.100–23.105
Charging orders, 23.176–23.178
costs, 20.39
equitable charges, 23.176
execution creditors, 23.176–23.178
priority, 23.101
solicitors’ liens, 23.171, 23.178
Charterparties. See also Demise charters
Admiralty Marshal, powers during arrest of, 15.109
arbitration awards, enforcement of, 2.20 1 –2.204
arrest, 15.42
carriage of goods, 2.179
choice of law, 18.52, 18.54, 26.180–26.181
disbursements, 2.23 1–2.232, 2.234
English law, 26.180–26.18 1
freight, 18.39
hire, 23.94–23.99
in rem actions, 10.32–10.36, 10.39–10.41, 10.48, 10.55–10.56
mortgages, priority and, 23.94–23.99
priority, 23.44–23.48, 23.94–23.99, 26.181
proprietary interests, 26.180–26.181
registration, 23.47–23.48 sister
ships, 10.53–10.54 Charterparties,
liens and, 22.1–22.34
agents, 22.22
cargo, 22.11–22.12, 22.16–22.20, 22.29
owner’s lien on, 22.16–22.20
cesser clauses, 22.32
charges, registration of, 22.33
charterparties, 22.3, 22.6–22.34
common clauses, 22.4–22.6
continue, liens not to be suffered or permitted to, 22.31
contract, creation of liens by, 22.1–22.34
demurrage, 22.4–22.5
exercise of, 22.5
freight, 22.4–22.6, 22.9, 22.12, 22.18, 22.1–22.29
hire, 22.26–22.27
unpaid, 22.25
Gencon charterparty, 22.13, 22.17
governing law, 22.34
hire, 22.4, 22.9, 22.13, 22.2 1–22.29
maritime liens, 18.52, 18.54, 22. 1–22.2
multi-lien clauses, 22.7–22.13
New York Produce Exchange Charterparty, 22.8 –22.11, 22.17, 22.27–22.29, 22.31
possessory liens, 22.1, 22.3–22.4, 22.11, 22.16, 22.30
refusal to continue a voyage, 22.5
registration, 22.33
security, 22. 1–22.2, 22.6
ship, charterer’s liens on, 22.30
standard forms, 22.3–22.4
sub-freight, owner’s liens on, 22.12, 22.17, 22.2 1 –22.29
sub-hire, owner’s liens on, 22.8–22.9, 22.21–22.29
sub-sub-freight, 22.28–22.9
sub-sub-hire, 22.28–22.9
Choice of law, 26. 1–26.7, 26.14. See also Contract, choice of law and, Proprietary
interests, choice of law and, Tort, choice of law and
applicable law, 26.50
charterparties, 26.180–23.181
classification of maritime claims, 26.22, 26.48–26.52
discretionary jurisdiction, 26.16–26.17
foreign law, application of, 26.1–26.7, 26.14, 26.48–26.188
governing law, 26.16–26.17
high seas, problem of the, 26.21
jurisdiction agreements, 5.37, 26.16, 26.18
locality, 26.21
proprietary issues, 26.162–26.187
restitution, 26.144–26.156
Rome Convention 1980, 26.18–26.19, 26.22
service outside the jurisdiction, 26.16, 26.19
statutory claims, 26.20, 26.23–26.27, 26.48
substantive issues, 26.48–26.168
Supreme Court Act 1981, 26.22, 26.24
territoriality, 26.21
unjust enrichment, 26.158–26.16 1
Civil and commercial matters
Brussels Convention 1968, 1.40, 1.42, 4.23–4.30
Brussels Regulation, 4.34–4.30
England, Scotland and Northern Ireland, jurisdiction as between, 7.10 –7.11, 7.16
Civil code systems, 0.3
Civil Jurisdiction and Judgments Acts, 1.47–1.49
Admiralty Code, need for, 0.32
Admiralty jurisdiction, 0.30, 1.47–1.50
arrest, 15.44, 15.86–15.95
Brussels Convention 1968, 0.30–0.32, 1.42, 1.47, 3.4 1–3.42, 4/18
Brussels Regulation, 0.3 1–0.32
enforcement of judgments, 1.48–1.49, 28.87
foreign judgments, 27.8, 27.39, 27.41–27.43
other courts in the UK, in, 27.10–27.13
European Union, membership of 0.30
interim relief, 14.12, 14.45–14.48
Lugano Convention 1988, 0.30
merger of judgments, 12.112
protective or provisional measures, 14.70 –14.71
recognition of judgments, 1.48–1.49
service, 9.68, 9.91–9.92
stay of proceedings, 15.129,18.100
trespass, 12.152
United Kingdom, disputes within the, 1.47
Civil law, 1.29
Civil Liability Convention 1992
breaking limits, 24.136
Brussels Convention 1968, 6.30, 6.34–6.35, 24.163
Brussels Regulation, 6.3 1–6.33, 6.36, 24.163
English law, reflected in, 3.33–3.34
exclusive economic zones, 5.28
global limitation compared, 24.144–24.145
governing jurisdiction, 6.35
Hazardous and Noxious Substances Convention, 6.76 –6.77
insurance, 2.152
declining, 24.138
restrictions on, 12.149
limitation fund, 24.132, 24.139–24.142
distribution of, 2.152
release of security, 24.140–24.141
UK, outside the, 24.141
Lugano Convention, 24.163
Merchant Shipping Act 1995, 2.150, 3.34, 24.132 –24.136
more than one state, damage in, 24.137
parties, 6.30–6.3 1, 6.36
payments into court, 24.132, 24.139
place of harmful event, 6.35
preventative or minimising measures, damage resulting form, 2.151
priority, 6.31
Protocol 2003, 2.156, 3.36, 6.28 –6.29
recognition of foreign judgments, 24.143, 24.145
recognition of judgments, 28.33–28.34
release of security, 24.140–24.141
scope of, 3.33–3.34
security, 2.152, 24.140–24.141
strict liability, 2.15 1
Supplementary Fund, 2.156
transitional provisions, 2.150
Civil or commercial matters
arbitration, 4.25, 4.28–4.30
bankruptcy, 4.25
definition, 4.24–4.25
employment issues, 4.25
European judgments regime, judgments within the, 28.12
exclusions, 4.26–4.30
public/private law divide, 4.25
Civil Procedure Rules
admiralty claims, definition of, 2.28
Admiralty Court, 2.230, 9.6–9.7
amendments, 9.41
arbitration,
agreements, 1291, 13.23
awards, 13.47–13.49, 18.118
time limits, 13.58
arrest, 12.87, 14.31
case management, 9.3–9.4
collisions, 2.245, 11.25–11.26
commercial claims, 9.8
County Court Rules, 9.2
delay, 11.2, 11.4, 11.32, 11.34, 11.40–11.41
European Convention on Human Rights, 0.12
freezing injunctions, 14.27, 16.9, 16.29–16.30
guidance, 9.6
hearings, 9.6
in personam claims, 0.6–0.7, 0.33, 2.244, 9.2–9.8, 9.17–9.19
in rem claims, 0.6–6.07, 10.69, 10.73
institution of proceedings, 10.69, 10.73
interim relief, 14.3, 14.8, 14.12, 14.15, 14.30, 14.41, 14.52
jurisdiction, 9.5
limitation of liability, 2.24, 24.46, 24.48, 24.79, 24.172
overriding objective, 9.4
security for costs, 14.35–14.38
service, 0.33, 3.2, 9.5, 9.17–9.22, 9.28–9.34, 9.70–9.79, 9.100–9.101
Supreme Court Rules, 9.2, 9.5
terminology, 0.6
time limits, 13.58
transfer of claims, 9.7
want of prosecution, 11.42–11.45
Claim forms. See also Service of claims forms
amendments, 9.40–9.41, 10.79
arrest, 14.72, 14.76–14.78, 15.1, 15.94, 15.109–15.110
collisions, 2.245
delay, 11.13–11.39
institution of proceedings, 11.13–11.38
issue of,
arrest, 15.94, 15.111
collisions, 2.245
delay, 11.13–11.38
in rem claims, 10.42, 10.68, 15.81–15.83
seisin, 12.32
statutory liens, 19.31, 19.37
seisin, 12.32
third party rights, 15.109–15.110
CLC. See Civil Liability Convention 1992
CMR Convention
arrest, 15.32
Brussels Regulation, 6 .55–6 .5 6
conflict of rules, 15.32
declarations of liability, 6.54
direct enactment of, 3.19, 3.25–3.26
initiation of proceedings, 6.5 1–6.56
jurisdiction, 3.25–3.26, 6.5 1–6.56
multimodal transport, 15.32
national laws, 6.53
non-liability, declarations of, 6.54
parties, 6.56
pending actions, 6.54
sea transport, 3.25
Coastguard
remuneration, 2.106–2.109
wrecks, 2.106–2.109 Co-
defendants
connecting factors, 6.189–6.192
contract, 6.189
domicile, 6.188–6.192
irreconcilable judgments, 6.19 1–6.192
joinder, 6.188
multi-parties or actions, allocation of jurisdiction and, 6.188 –6.192
tort, 6.189–6.191
Codification, 0.24, 1.30, 2.27
Collision Jurisdiction Convention 1952
arrest, 15.10, 15.26–15.27
English law, reflected in, 3.31–3.32
jurisdiction, 6.24–6.27, 15.26–15.27
Limitation of Liability Convention 1976, 6.64, 24.26, 24.88
Merchant Shipping Act 1995, 11.23
multi-parties or actions, allocation of jurisdiction and, 6.187–6.188
multiple claims, 6.25
parties, 6.27
priority, 6.26
Collisions. See also Collision Jurisdiction Convention 1952
Admiralty Court, 2.245
arrest, 11.24
Civil Procedure Rules, 2.245, 11.25–11.26
delay, 11.23–11.26
salvage, 6.168
time limits, extension of, 11.25
tort, choice of law and, 26.141–26.142
trespass, 12.151
Comity, 25.12, 25.17
Commencement of actions. See Institution of proceedings
Committal, 25.67, 25.68
Common carriers, 20.30
Common law
Admiralty Court, 1.16–1.20, 1.22, 1.24–1.25
Court of Chancery, 1.18
custom, 1.17
equity, 1.20
High Court, divisions of the, 1.25
Judicature Acts, 1.19
King’s court, 1.17–1.18
liens, 17.12–17.18, 20.41, 20.44, 20.53
possessory liens, 20.5–20.22
precedent, 1.17
Commonwealth countries, enforcement of judgments and, 27.52 –27.54
Companies. See Company charges, registration and, Corporations and associations
Company charges, registration and
book debts, 23.62, 23.69
Companies Act 1985, 23.60–23.62
Companies Act 1989, 23.60, 23.67–23.70
fixed charges, 21.4, 23.55, 23.61
floating charges, 2.14–21.5, 23.61, 23.66, 23.69, 23.71
crystallisation of, 14.18, 21.4–21.5, 23.71
liens, 17.9–17.10
priority, 23.55
foreign companies, 23 .65–23.68
law, charges imposed by, 23.63
liens, 17.9–17.10, 23.63, 23.69
list of charges requiring registration, 23.69
meaning of charge, 23.67
reservation of title, 23.64
sub-freight, 23.62, 23.69
unregistered charges, 23.68, 23.70
void charges, 23.61, 23.70
Compensation orders, 25.48
Condemnation, 19.29–19.31
Conduct
estoppel, by, 27.7
Conflict of laws, 12.5–12.6
foreign law, application of, 26.2, 26.14
Maritime Liens and Mortgages Conventions, 18.12 1
place of performance, 6.147
treaties and conventions, 3.5
Connecting factors
arbitration agreements, 13.31, 13.34–13.35
beneficiaries, 6.179–6.180
branch, agency or other establishment, 6.172 –6.173, 6.176
Brussels Convention 1968, 4.5–4.6, 6.122–6.123, 28.13
Brussels Regulation, 4.6, 6.12 1, 28.13
closest and most real connection, 5.110, 26.56, 26.69 –26.70, 26.106–26.117
contract, 6.128–6.157
criminal proceedings, civil claims in, 6.123
domicile, 5.98–5.99, 6.121–6.123, 6.128–6.157, 6.172–6.182
employment contracts, 6.152–6.157
England, Scotland and Northern Ireland, jurisdiction as between, 7.1, 7.12
establishment, interpretation of, 6.125
foreign law, application of, 26.12–26.13, 26.43
linked proceedings, 6.181–6.182
Luxembourg, persons domiciled in, 6.130–6.13 1
maintenance, 6.123
mortgages, 2.11
national law, 6.127
objection to jurisdiction, 2.10
optional allocation of jurisdiction, 6.12 1 –6.122
place where harmful event occurred, 6.162 –6.163, 6.165
protective or provisional measures, 14.64
salvage, 6.168–6.169
service, 9.81–9.84
settlors, 6.179–6.180
special jurisdiction, 6.121
substantive claims, 6.128–6.169
tort, delict or quasi-delict, 6.124–6.126, 6.158–6.167
trusts, 5.110, 6.123, 6.179–6.180
unjust enrichment, 6.124
wage disputes, 6.129
Conservancy authorities, 24.17 1–24.172
Consideration of jurisdiction under Brussels Convention and Regulation
adjudicating court, by, 4.45–4.54
court first seised, 4.45
declining jurisdiction, 4.46–4.50
jurisdiction enquiries, 4.45–4.46
stay of proceedings, 4.5 1–4.54
Consolidation, 1.30
Construction of ships, claims relating to
necessaries, 2.223
Consular relations, 9.104,12.155
Consumer contracts
branches, agencies or establishment, claims relating to, 6.119
Brussels Convention, 6.115–6.120
domicile, 6.95, 6.115–6.120
deemed, 5.72–5.74, 5.94, 5.96
electronic commerce, 6.116
England, Scotland and Northern Ireland, jurisdiction as between, 7.20 –7.2 1, 7.29
Internet sales, 6.116
jurisdiction agreements, 5.66, 6.120, 7.30
optional allocation of jurisdiction, 6.88, 6.115 –6.120
transport contracts, 6.117
Contempt, 16.4, 16.6, 16.53, 16.55–16.56, 25.67
Contract. See also Consumer contracts, Contract, choice of law and, Employment
contracts, Insurance contracts
charterparties, liens and, 22. 1–22.34
co-defendants, 6.189
equitable liens, 21.5, 2.18–2 1.11
formation of contract, 6.137, 26.58–26.62
freedom of contract, 11.1
immovables, 6.198
injunctions, 25.42
liens, 17.4, 17.10, 17.19–17.21
equitable, 21.5, 2.18–21.11
maritime, 17.19, 26.171
possessory, 20.3–20.5, 20.8, 20.25, 20.33, 20.38
maritime liens, 17.19, 26.17 1
matters relating to a contract, 6.132–6.139
possessory liens, 20.3–20.5, 20.8, 20.25, 20.33, 20.38
remedies, 25.42, 25.44
restitution, 26.146, 26.148, 26.150–26.157
sale of ships, 25.44
service, contracts of, 24.60
service of process, 9.22, 9.79, 9.87
sovereign immunity, 12.122
specific performance, 25.42, 25.44
termination, 25.44
time limits, 26.35
tort, delict or quasi-delict, matters relating to, 6.159, 6.161
unjust enrichment, 26.158–26.159
Contract, choice of law and 26.50–26.118. See also Rome Convention 1980
applicable law, 26.56, 26.59, 26.73, 26.79, 26.83
additional law, 26.95–26.99
ambit of, 26.57
floating, 26.56
no choice, where there is, 26.106–26.118
putative, 26.59–26.62, 26.75
assignment, 26.98
bills of lading, 26.75
capacity, 26.58–26.62, 26.96
characteristic performance, 26.86, 26.106 –26.117
closest and most real connection, 26.56, 26.69 –26.70, 26.106–26.117
contracting out of compulsory rules, 26.101
Contracts (Applicable Law) Act 1990, 26.53, 26.85 –26.89
defective performance, 26.97
domicile, 6.128–6.157
exclusions, 26.89, 26.92
floating proper law, 26.56
formalities, 26.58–26.62
formation of contracts, 26.58–26.62
forum mandatory rule, 26.65–26.67
illegality, 26.63
immovable property, 26.107
implied choice, 26.105A
insurance contracts, 26.90, 26.118
jurisdiction agreements, 26.7 1–26.84
limitations on choice, 26.63–26.70
mandatory rules, 26.100–26.102
ordre public, 26.103
parties, choice of, 26.104–26.105A
place of performance, 26.63, 26.97, 26.107 –26.110
primacy of choice, 26.63–26.70
priority, 26.98
proper law, 26.56
public policy, 26.68, 26.102, 26.103
Rome Convention 1980, 26.18–26.19, 26.22, 26.53–26.56, 26.72
applicable law, 26.93–26.94, 26.116
classification, 26.91
contracting out, 26.10 1
Contracts (Applicable Law) Act 1990, 26.53, 26.85–26.89
matters within the, 26.9 1–26.92
subrogation, 26.99
substance, 26.72–26.80
United States, 26.68
validity, 26.95
Contract, domicile and
Luxembourg, domicile in, 6.130–6.131
matters relating to a contract, 6.132–6.139
place of performance, 6.132, 6.140–6.157
wage disputes, 6.129
Contribution, 18.90, 25.33
Conventions. See Particular conventions (eg Arrest Convention 1952) Treaties and
conventions
Co-ownership
arrest, 2.125
Corporations and associations
bankruptcy, 5.22
Brussels Convention 1968, 4.19, 5.22 –5.24, 5.101–5.109
Brussels Regulation, 4.19, 5.103–5.107
central administration, 5.101
central management and control, 5.102
charges, registration of, 23.60–23.71
conflicts, 5.10 1
constitutions of, 5.22
corporate veil, piercing the, 10.44–10.46
domicile, 4.19, 5.22–5.24, 5.94, 5.101–5.109
branches, agencies or other establishments, 5.95
Community concept of, 6.95
United Kingdom, in, 4.19, 5.113
exclusive jurisdiction, 5.22–5.24, 5.107–5.109
freedom of establishment, 5.10 1
one ship companies, 10.44–10.48
multiple jurisdiction, 5.108–5.109
national laws, seats of corporations and, 5.24
partnerships, 5.23
principle place of business, 5.10 1, 5.103
public registers, 5.26
registration, 5.26, 23.60–23.70
seat of corporations, 5.24, 5.101–5.106
service, 9.50–9.5 1
United Kingdom, 5.101–5.109
Costs. See also Security for costs
damages, 25.35
delay, 11.40
European judgments regime, judgments within the, 28.14, 28.18
money judgments, 25.35
registration, 27.15, 27.23
service, 9.79
solicitors’ liens, 23.111
Counterclaims
domicile, 6.197
interim relief, 14.48–14.49
multi-parties or actions, allocation of jurisdiction and, 6.188, 6.197
optional allocation of jurisdiction, 6.88
related claims, 6.197
set-off, 5.53
Criminal proceedings and offences
civil claims in, 6.123, 6.182
Law of the Sea Convention, 3.39
Crown. See also Crown proceedings
domicile, 5.111
droits in Admiralty, 2.135–2.137
Northern Ireland, 5.111
royal fishes, 2.135
United Kingdom, 5.111
Crown proceedings
arrest, 12.141
cargo, 12.146
Civil Liability Convention, 12.137
Crown property, 12.144–12.146
definition of Crown, 12.142
demise charterparties, 12.145
detention, 12.141
government ships, 15.77
in rem actions, 12.139–12.141, 12.143
Salvage Convention 1989, 12.141
ships, 12.144
sovereign immunity, 12.134–12.146
Supreme Court Act 1981, 12.140, 12.142, 12.144
Custom, 1.17
Customs
forfeiture and, 2.131, 2.133, 2.134
Damage by ships, claims relating to
economic loss, 2.147
enforceability, 2.64
fault, 2.64
harbours and piers, 2.115–2.120
high seas, extension beyond the, 2.68
link between damage and person or thing causing it, 2.146
loss of life, 2.72–2.76, 2.147
maritime liens, 2.40, 2.63–2.77, 23.134–23.140
enlarged jurisdiction, 2.43
shipowners’ liability, 18.63–18.64
oil pollution, 2.77–2.80
personal injuries, 2.69–2.72
piers, 2.117
rivers, 2.68
Damage to ships, claims relating to
Administration of Justice Act 1956, 2.15–2.16, 2.139, 2.142
arrest, 2.17, 2.139
basis of liability, 2.141
collisions between ships, 2.144
connection with a ship, 2.139
consequential loss, 2.143
harbour authorities, detention and, 2.116
in personam claims, 2.15, 2.242
in rem claims, 1.12, 2.15–2.17, 2.139–2.144, 10.3, 10.25
link between damage and person or thing causing it, 2.144
nature of the damage, 2.142
oil pollution, 2.149
repairs, 2.143
sister ships, arrest of, 2.17
Damages. See also Interest on damages and debt
arrest, 15.1, 15.50, 15.95
wrongful, 15.117
costs, 25.35
expenses, 25.34
foreign judgments, enforcement of, 27.8, 27.56, 27.58
freezing injunctions, 16.29–16.48
injunctions, 14.21
judgments, enforcement of, 25.66
loss of life, 2.74–2.75
maritime liens, 18.79, 18.81
money judgments, 25.34–25.39
proprietary relief, 25.40
res judicata, 25.35
salvage, 2.209
specific performance, 25.63
trespass, 12.151
undertakings, 15.1, 15.50, 15.95, 15.128–15.129, 16.29–16.48
Dangerous goods, forfeiture of, 2.134
Dealings in ships, prohibition, on, 14.23
Death. See Loss of life
Declarations. See also Negative declarations
appeals, 28.97, 28.105–28.108
arrest warrants, 15.97–15.98
discretion, 25.49
enforceability, 28.97, 28.105–28.108
enforcement of judgments, 28.78, 28.85, 28.96
incompatibility, declarations of, 0.16
limitation of liability, 24.5, 24.28, 24.75
Declining jurisdiction, 12.25
court first seised, 4.49–4.50
jurisdiction,
agreements, 5.39
lis pendens, 4.48
multi-exclusive proceedings, 4.489
multiple proceedings, 4.46, 4.49, 12.13–12.14, 12.22, 12.35
own motion, court’s own, 4.46–4.49
power to decline jurisdiction, 4.50
Deemed domicile
Brussels Convention 1968, 5.72–5.74, 5.94, 5.96
Brussels Regulation, 5.72–5.74, 5.94, 5.96
consumer contracts, 5.72–5.74, 5.94, 5.96
employment contracts, 5.72–5.74, 5.94, 5.96
insurance contracts, 5.72–5.74, 5.94, 5.96
Default judgments
acknowledgment of service, 10.77A, 10.78
Defective performance, 26.97
Delay in suit, time limits and, 11.1–11.50
abuse of process, 11.42–11.46
acknowledgment, 11.29
acquiescence, 11.34
amendments, 11.32–11.35
analogy, application by, 11.36
appeals, 28.98–28.99
arbitration, 11.1, 11.14, 11.28, 13.46, 13.51–13.59
arrest, 11.50
Athens Convention, 11.21–11.22
avoidance of delay, 11.4
case management, 11.2, 11.4, 11.40
Civil Procedure Rules, 11.2, 11.4, 11.32, 11.34, 11.40 –11.41
claim forms,
commencement of proceedings, 11.13–11.38
issue of, 11.13–11.38
service of, 11.39
classification of time limits, 11.7
collisions, 11.23–11.26
concealment, 11.29
commencement of suit, 11.13–11.38
Contracts (Applicable Law) Act 1990, 11.8
costs, 11.40
damages, interest on, 11.2, 11.40, 11.48
discretion, 11.30, 11.40
effect of delay, 11.1–11.4
English proceedings, foreign limitation periods in, 11.6 –11.11
estoppel, 11.4
extension of time limits, 11.29
extinguishments of right or remedy, 11.3, 11.12
fatal accidents, 11.28, 11.30
foreign time bar, effect on, 11.3, 11.6–11.11
forum non conveniens, 11.9–11.10
fraud, 11.29
freedom of contract, 11.1
Hague-Visby Rules, 11.18–11.20, 11.33
hardship, 11.7
injunctions, 11.49
inordinate and inexcusable delay, 11.43, 13.57 –13.58
joinder, 11.35
laches, 11.31, 11.37–11.38
latent damage, 11.15
merits, judgments on orders of the, 11.48
mortgages, 11.28
pending actions, new claims in, 11.32–11.35
personal injuries, 11.28, 11.30
prejudice, 11.30
procedural requirements, 11.40–11.41
provisional remedies, 11.49–11.50
remedy, delay in assertion of the, 11.47–11.50
salvage, 11.27
six-year period, 11.28, 11.48
statutory time bars, 11.14–11.16, 11.28–11.29
stay of English proceedings, 11.9–11.11
striking out, 11.2
substitution of parties, 11.32–11.34
third party proceedings, 11.32
three year period, 11.28
twelve-year period, 11.28, 11.48
types of claim, for particular, 11.16, 11.18–11.27
waiver, 11.9, 11.11
want of prosecution, 11.42–11.46
Delict. See Matters relating to tort, delict or quasi-delict
Delivery up, 2.123, 25.68
Demise charters
in rem actions, 10.32–10.35, 10.39–10.41, 10.48
Register of British Ships, 23.24, 23.26, 23.34
Demurrage, 2.185–2.186, 22.4–22.5
Deodand, 10.13–10.18
Destruction of property, 18.116
Detention
aircraft, 20.60
dues and charges, 2.223, 15.142
harbour authorities, 2.116
legislative powers, under, 15.142–15.143
port authorities, 23.169–23.170
priority, 23.169–23.170
public authorities, 2.223, 15.142–15.143
Register of British Ships, 23.25
Directives, 1.34, 3.11–3.12
Disbursements. See also Masters’ disbursements
agents, 2.23 1–2.232, 2.234
charterers, 2.23 1–2.232, 2.234
choice of law, 18.58, 18.63, 18.65
maritime liens, 2.89–2.95, 18.58, 18.63, 18.65, 23.142–23.143
meaning, 2.232–2.234
necessaries, 2.232
shippers, 2.23 1–2.232, 2.234
Discrimination, security for costs and, 14.38, 14.82, 28.93
Diplomatic immunity, 12.114
Docks
dues, 2.223, 20.56
property salvage, 2.60–2.6 1
Domicile. See also Foreign contracting state, defendant domiciled in Insurance
contracts, domicile and
allocation of jurisdiction, 5.77, 5.96
appeals, 28.105
applicability, 6.91–6.92
branches, agencies or other establishments, 6.170 –6.178
Brussels Convention 1968, 4.6–4.7, 4.13–4.14, 4.19, 6.90–6.198
applicability of, 5.4–5.6, 5.16A, 5.77–5.113
companies, 4.19
Brussels Regulation, 4.6–4.7, 4.13, 4.15, 4.19, 6.90–6.198
applicability of, 5.4–5.6, 5.16A, 5.77–5.113
companies, 4.19
certainty, principle of, 5.78–5.80
change on, 5.80
choice of law, 6.129–6.149 co-
defendants, 6.188 –6.192
connection, 5.98–5.99, 6.12 1–6.182
consumer contracts, 6.95, 6.115–6.120
corporations and associations, 4.19, 5.22 –5.24, 5.94, 5.10 1–5.109
branches, agencies or other establishments, 5.95
Community concept of, 6.95
United Kingdom, in, 4.19, 5.113
Crown, 5.111
date of deciding on, 5.78–5.81, 6.184
employment contracts, 6.95, 6.152–6.155, 8.5
England, Scotland and Northern Ireland, jurisdiction as between, 7.5, 7.17 –7.25
exorbitant bases of jurisdiction, 6.90
good arguable case, 5.82–5.94, 6.184
individuals, of, 5.94, 5.96–5.100, 5.113
insurance contracts, 6.95, 6.96–6.114
issue of proceedings, 5.78
joinder, 5.80
jurisdiction agreements, 5.38–5.40, 5.61, 5.92–5.93, 6.120
international disputes, 5.51
selection of courts of non-member states, 5.55–5.56
jurisdictional link, establishing the, 5.82 –5.94
Lugano Convention, 5.96, 8.6
Luxembourg, 5.70–5.71, 6.130–6.13 1
more than one contracting state, domicile in, 6.93 –6.94
multiple proceedings, 12.20–12.24
national laws, 5.81, 5.94
non-member state, in, 5.100, 5.112
optional allocation of jurisdiction, 6.87, 6.90–6.198
recognition of judgments, 28.48, 28.53
service, 5.78, 5.80
standard of proof, 5.82–5.94, 6.184
treaties and conventions, reference to other, 6.9
trusts, 4.19, 5.110, 5.113
United Kingdom, 5.96–5.99, 5.112–5.113
Double actionability rule, 26.131–26.134
Dredgers, 18.31
Droits in Admiralty
Crown, 2.135–2.137
jetsam, flotsam, lagan and derelict, 2.135
piracy, goods and ships taken from, 2.135
procedure, 2.136
receivers, 2.136–2.137
royal fishes, 2.135
statutory liens, 19.29–19.3 1
territorial waters, wrecks outside UK, 2.137
wrecks, sale of title to, 2.136–2.137
EC law
Athens Convention, protocol to, 3.18
conventions, 3.11–3.13
decisions authorising membership of, 3.17
European Community, as party to, 3.18
decisions, 1.34
direct effect, 1.34
directives, 1.34, 3.11–3.12
exclusive competence, 3.16
freedom of establishment, 5.101
impact of, 0.28, 1.33–1.34
judicial co-operation, 3.13
jurisdiction, 1.2, 3.11–3.18
regulations, 1.34, 3.11–3.12
source of law, As, 3.11
treaties, 3.11–3.13, 3.17–3.18
Economic loss, 2.147
EFTA countries, 1.2, 27.58
Electronic commerce, 6.116
Employment contracts
characterising the contract, obligation, 6.152
domicile, 6.95, 6.152–6.157, 8.5
deemed, 5.72–5.74, 5.94, 5.96
England, Scotland and Northern Ireland, jurisdiction as bet ween, 7.20–7.2 1, 7.29
essential duties, place of, 6.153–6.154
habitual work or place of engagement, place of, 6.153, 6.155, 8.5
jurisdiction agreements, 5.64–5.65, 7.30, 8.4
place of performance, 6.140–6.141, 6.152–6.155, 8.5
posted workers, 5.65
seaman’s wages, 2.80, 2.84
successive employees, 6.153–6.154
Enforceability of claims
categories of enforceability, 2.30–2.247
choice of law, 26.169–26.179
damage by ships, claims relating to, 2.64
declarations, 28.97, 28.105–28.108
equitable liens, 21.1–21.2, 21.10, 21.14–21.16
forfeiture, condemnation or possession, 19.20 –19.21
in personam actions, 2.240–2.247, 9.10–9.12, 23.110, 23.157
in rem actions, 2.138, 10.14, 19.13–19.16, 19.38, 23.157
mortgages, priority and, 23.96, 23.127
ownership or possession claims, 19.19, 19.21
port authorities, 23.170
priority, 23.11
statutory liens, 19.13–19.16, 19.25–19.30
forfeiture, condemnation or possession, 19.20 –19.21
in rem actions, 19.13–19.16, 19.38, 23.157
Enforcement. See also Enforceability of claims, Enforcement and recognition of
judgments of other courts within the UK, Enforcement of arbitration awards,
Enforcement of judgments,
administration orders, 17.33
appeals, 28.97, 28.104
equitable interests, 1.20
foreign liens, 17.24
freezing injunctions, 16.11, 16.23, 16.35
liens, 17.3, 17.14, 17.24, 17.36–17.57
possessory liens, 20.2, 20.9–20.14, 23.112–23.113
inconsistent action, taking, 20.21
statute, by, 20.26, 20.38
termination or sale, 20.2
third parties, 20.25, 20.36–20.37
security, 28.104
security for costs, 14.36–14.40, 14.82
settlements, 28.10–28.11
solicitors’ liens, 23.111
Enforcement and recognition of judgments of other courts within the UK, 27.9 –
27.24
appeals, 27.17, 27.21, 27.24
arbitration,
awards, 27.12–27.13
certificates, 27.16–27.21
Civil Jurisdiction and Judgments Act 1982, 27.10 –27.13
costs, 27.15
definition of judgment, 27.13
expenses, 27.15, 27.23
interest, 27.15
interested parties, 27.10
judgments on judgments, exclusion of, 27.13
jurisdiction, 27.12
money judgments, 27.10, 27.16–27.18
non-money judgments, 27.10, 27.21, 27.22
notice, 27.23–27.24
refusal of enforcement, 27.12–27.13, 27.16–27.18
registration, 27.9, 27.14–27.18, 28.86
applications, 27.22
costs, expenses and interest, 27.15, 27.23
notice, 27.23–27.24
process, 27.22–27.24
tribunal awards, 27.12–27.13
Enforcement of arbitration awards. See also Enforcement of foreign arbitration
awards
arising out of contracts, awards, 2.205
arrest, 15.65
enforcement of judgments, 2.20 1–2.202
England, made in, 25.69
in personam actions, 2.20 1–2.203, 25.45–25.46
jurisdiction, 25.46
permission, 25.46
remission of awards, 25.46
salvage, 6.169
service, 9.78, 9.79, 9.98
stay of legal proceedings, 25.45
UK, within the, 27.62
Enforcement of foreign arbitration awards, 27.63–27.67
Arbitration Act 1950, 27.63–27.64
Arbitration Act 1996, 13.60, 27.63, 27.65 –27.67
certification or authentication, 27.66
Convention awards, 13.60
foreign currency judgments, 25.36
Foreign Judgments (Reciprocal Enforcement ) Act 1933, 27.66
Geneva Convention 1923, 13.10
New York Convention, 27.63–27.66
public policy, 13.30, 27.64, 27.66
registration,
by, 27.67
without, 27.64–27.66
Enforcement of foreign judgments, 27.1–27.61
appearance of defendant, 27.39
arrest, 15.64, 27.29
Brussels Convention 1968, 4.39, 27.8, 27.25, 27.42
Brussels Regulation 4.39, 27.8, 27.42
cause of action estoppel, 27.1, 27.3–27.4
Civil Jurisdiction and Judgments Act 1982, 27.8, 27.39, 27.4 1 –27.43
Commonwealth countries, 27.52–27.54
companies, presence of, 27.38
competing foreign judgments, 27.7
conduct, estoppel by, 27.7
countries, courts of specified, 27.54 –27.56
damages, 27.8, 27.56, 27.58
default judgments, 27.6, 27.49
defences, 27.34–27.36, 27.55
EFTA countries, 27.58
extraterritoriality, 27.57
foreign court jurisdiction, 27.37–27.40
Foreign Judgments (Reciprocal Enforcements) Act 1933, 27.54 –27.56
Gibraltar, 27.25
in personam actions, 27.26–27.27, 27.30, 27.33–27.40, 27.48
Commonwealth countries, 27.52
Foreign Judgments (Reciprocal Enforcements) Act 1933, 27.54
in rem actions, 2.22, 27.27–27.36, 27.46, 27.48–27.5 1
issue estoppel, 27. 1–27.6
jurisdiction agreement, proceedings brought contrary to, 27.4 1 –27.43
liens, 27.36, 27.49–27.5 1
merger, application of, 27.1–27.6
money judgments, 27.26, 27.52, 27.54
persons, actions in rem against, 27.50–27.5 1
pleadings on the merits, lodging, 27.40
prerequisites for, 27.34–27.36
presence of defendant, 27.38
Protection of Trading Interests Act 1980, 27.57 –27.58
registration, 27.9, 27.49, 27.52–27.55
remedies, 25.8–25.9
res judicata, 27.8
sale, 27.32–27.33, 27.51
sovereign immunity, 27.60–27.6 1
states, judgments against, 27.59–27.61
submission to jurisdiction, 27.39–27.40
title, 27.32
trade, protection of, 27.57–27.58
United Kingdom, judgments against the, 27.59 –27.60
United States, extraterritorial application of the antitrust laws of, 25.26 –25.27,
27.57–27.58
Enforcement of judgments, 25.66–25.69. See also Enforcement and recognition of
judgments of other courts within the UK, Enforcement of foreign judgments,
Enforcement of judgments within the European judgments regime
arbitration awards, enforcement of, 2.20 1 –2.202
arrest, 25.67, 25.68
Brussels Convention 1968, 1.41, 4.5, 4.16, 5.8, 5.29
committal, 25.67, 25.68
contempt, 25.67
damages, assessment of, 25.66
delivery up, 25.68
fieri facias, writs of, 25.67
fines, 25.67
foreclosure orders, mortgages and, 25.67
foreign element, 0.2 1–0.22
injunctions, 25.47, 25.67
interest, 25.66
judicial sale, 25.67, 28.35
mortgages, 25.67
national laws, 5.29
IOPC Fund, 24.148
receivers, appointment of, 25.67
sequestration, 25.67, 25.68
third party debt orders, 25.67
Enforcement of judgments within the European judgments regime, 1.41, 3.46, 4.2 –
4.3, 4.5, 4.16
appearance, default of, 28.58–28.72
applications, 28.44, 28.88–28.96
Bunkers Convention, 28.39, 28.41
certificates of judgments, 28.44, 28.85, 28.91, 28.95
Civil Jurisdiction and Judgments Act 1982, 1.48 –1.49, 28.87
Civil Liability Convention 28.33–28.34
CMR, 28.32
consideration of jurisdiction, 4.45–4.46
consumer contracts, 28.4, 28.45
declarations, 28.78, 28.85, 28.96
documentary evidence of judgment, 28.87 –28.92, 28.95
domicile, 28.48, 28.53
exorbitant jurisdiction, 28.4
formalities, 28.44, 28.89, 28.92
free movement of judgments, 28.7
grounds for non-enforcement, 28.45–28.77
heard, right to be, 28.58–28.72
insurance contracts, 28.4, 28.45
irreconcilable judgments, 28.73–28.77
issue estoppel, 28.6, 28.24–28.25
adjudicating court, of the, 28.45–28.47
enquiry, 28.3
exclusive, 28.42, 28.45
exorbitant, 28.48–28.5 1
national laws, 28.46A, 28.48, 28.53, 28.84, 28.87, 28.96
nuclear incidents, 28.36
penalties, 28.18
periodical payments, 28.18
process, 28.78–28.96
provisional or protective measures, 28.78
public policy, 28.47, 28.54–28.57
recognition, link with, 28.8–28.9
refusal of, 28.2–28.5, 28.44, 28.46–28.47, 28.54–28.77, 28.94
registration, 28.9
res judicata, 28.6
security for costs, 28.7, 28.93
service 28.89–28.90
substance, 28.22
treaties and conventions, precedence of judgments within, 28.26 –28.35
allocation of jurisdiction, 7.1–7.31
appearance of defendant, 7.13, 7.18
applicability of adapted framework, 7.10–7.31
arrest, 7.5
branch, agencies and other establishments, 7.21
Brussels Convention 1968, 7. 1–7.31
Brussels Regulation, 7. 1–7.31
civil and commercial matters, 7.10–7.11, 7.16
connecting factors, 7.1, 7.12
consumer contracts, 7.20–7.2 1, 7.29
domestic scheme, 7.8
domicile, 7.2–7.7, 7.13
deemed, 7.5
exceptional category cases, 7.17–7.19
optional alternatives, 7.20–7.25
primary basis of, 7.15–7.16
employment contracts, 7.20–7.2 1, 7.29
exceptional category cases, 7.17–7.19
exclusions, 7.11
exclusive jurisdiction, 7.2, 7.5, 7.12, 7.17, 7.19, 7.23
general pattern of regime, 7.13–7.14
initial proceedings, 7.14
insurance contracts, 7.20–7.2 1
intra UK structure, 7.6–7.31
jurisdiction agreements, 7.5, 7.13, 7.19, 7.26–7.29
jurisdiction bases, 7.15–7.16
limit of liability, 7.25
links with dispute, 7.22–7.23
mandatory criteria, 7.17–7.19
multi-parties and multi-claims, 7.24
multiple proceedings, 7.1, 7.28
place in UK, regime allocation to, 7.4–7.5
procedural safeguards, 7.30
provisional measures, 7.31
service, 7.7, 7.9, 9.103
whole, allocation to UK as a, 7.5
Environmental damage, 2.44
Equitable liens, 21.1–21.18
attachment, pre-trial, 21.14
bills of sale, 21.9, 21.15
charges, 21.2–21.5, 21.7, 21.10
charterparties, 22.1, 22.4
companies, 21.10, 21.15
conduct, 21.1, 21.13
contract, 21.5, 21.8–21.11
creation of, 21.1, 21.8–21.13
enforceability, 21.1–21.2, 21.10, 21.14–21.16
enforcement, 21.1
equitable charges, 21.2–21.5, 21.7
expenses, 21.13
fixed charges, 21.4
floating charges, 21.1, 21.4–21.5
contractual, 21.5
crystallisation, 21.4–21.5
mortgages, 21.2, 23.130
negative pledges, 21.5
notice, 21.14
parties, arising from the relationship of the, 21.12
priority, 21.5, 21.15, 23.117, 23.130
proprietary estoppel, 21.13
registration, 21.9, 21.10–21.11, 21.15
reservation of title clause, 21.6
sale of land, 21.12
security, 21.1–21.3, 21.9, 21.16
subfreight, 21.11
termination, 21.18
tracing, 21.16
transferability, 21.17
unpaid purchase money, vendor’s lien on, 21.12
Equity
Admiralty Court, 1.16–1.20, 1.24–1.25
charges, 2.129, 21.1–21.5, 21.7, 23.154–23.157, 23.176
common law, 1.20
Court of Chancery, 1.18
High Court, divisions of the, 1.25
judicial creativity, 1.29
liens, 17.12–17.18, 17.20
mortgages, 23.87–23.90
priority, 23.5–23.6, 23.42
Register of British Ships, 23.36–23.39
Estoppel. See also Cause of action estoppel, Issue estoppel
conduct, by, 27.7
delay, 11.4
laches, 11.38
merger, 27.4–27.6
proprietary, 21.13
European Convention on Human Rights
access to courts, 0.12, 1.32
discrimination, 14.38, 14.82, 28.93
fair trials, 0.12, 1.32, 13.49
margin of appreciation, 0.18
Ex parte proceedings, 28.17
Excise duty, 12.128
Exclusive economic zones, 5.28
Exclusive jurisdiction, 5.17–5.30, 12.25
allocation of jurisdiction, 5.17, 5.44
Brussels Convention 1968, 4.38, 4.45, 5.17 –5.30, 5.43–5.44, 12.52
Brussels Regulation, 4.38, 4.45, 5.17–5.30, 5.44
consideration of, 4.45
corporations and associations, 5.22–5.24, 5.107–5.109
domicile, 5.113, 6.113
England, Scotland and Northern Ireland, jurisdiction as between, 7.2, 7.5, 7.12,
7.17, 7.19, 7.23
immovable property, 5.19–5.2 1
insurance contracts, domicile and, 6.113
intellectual property, 5.28
jurisdiction agreements, 5.41, 5.43–5.44, 5.56, 5.63, 12.64–12.66
seised, court first, 5.44
Execution creditors, priority and, 23.173–23.178
charging orders, 23.176–23.178
fieri facias, writs of, 23.173, 23.175
masters’ wages, 23.173–23.175
necessaries, 23.173–23.174
pari passu rule, 23.175
Exorbitant jurisdiction
domicile, 6.90
enforcement of judgments, 28.48–28.5 1
European Judgments Regime, applicability of, 5.5, 28.26
Expenses
Admiralty Marshal, 15.56, 15.97,15.99 –15.102, 15.107
arrest, 15.54, 15.56, 15.99–15.104, 15.116
damages, 25.34
enforcement and recognition of judgments of other courts in the UK, 27.15, 27.23
freezing injunctions, 16.29, 16.34, 16.44, 16.58
preservation of chattels, 20.4
repatriation, 15.102
third party rights, 15.116
Extinguishment, 11.3, 11.12, 11.18, 18.143–18.144
Extraterritorial application of the antitrust laws of US, 25.26 –25.27, 27.57–27.58
Factors, 9.94, 23.42
Fair trials, 0.12, 1.32
appeals, 0.17
civil rights and obligations, 0.17
Human Rights Act 1998, 0.17–0.18
public hearings, 0.17
service, 9.25
Fatal accidents. See Loss of life
Fault
actual fault or privity, 24.62–24.63
damage by ships, claims relating to, 2.64
Fieri facias, writs of, 23.173, 23.175, 25.67
Finality of litigation
arbitration awards, 25.1–25.5
cause of action estoppel, 25.1, 25.3–25.4
issue estoppel, 25.1, 25.3–25.4
merger, 25.1–25.2, 25.4–25.5
relitigation, prohibition of, 25.1–25.2
res judicata, 25.1
Finance
insurance brokers’ liens, 20.53
long-term, 10.47
Fines, 25.67
Fishing vessels, 23.40
Fixed charges, 21.4, 23.55, 23.61
Flag, law of the, 26.166
Fleets, 2.195
Floating charges, 2.129, 23.55
crystallisation of, 14.18, 21.4–21.5, 23.71, 23.104
equitable liens, 21.1, 21.4–21.5
liens, 17.9–17.10
equitable, 21.1, 21.4–21.5
possessory, 21.4
registration, 23.61, 23.66, 23.69, 23.71
Forced sale. See Judicial or forced sale
Foreclosure orders, 25.67
Foreign arbitration awards. See Enforcement of foreign arbitration awards
Foreign judgments. See Enforcement of foreign judgments, Recognition of foreign
judgments
Foreign connections
mortgages, 2.11
objection to jurisdiction, 2.10
Foreign contracting state, defendant domiciled in
Foreign currency judgments
interest, 25.37
Foreign element
interim remedies, 0.21
jurisdiction, 0.20
relevance of a, 0.20–0.22
Foreign forum agreements. See Jurisdiction agreements
Foreign judgments. See also Enforcement of foreign judgments
arrest, 15.64
registration, 15.64
Foreign law, application of, 26.1–26.189
assignment, 26.39
Brussels Convention 1968, 4.33, 4.44
choice of law, 26.1–26.7, 26.14, 26.48–26.188
classification of claims, 26.1, 26.4–26.5, 26.28–28.47, 26.189
conflicts of law, 26.2, 26.14
connecting link, 26.12–26.13, 26.43
Contracts (Applicable Law) Act 1990, 26.2 –26.3, 26.14
damages, 26.44
dispositive rule, 26.7, 26.10–26.11, 26.14, 26.28–26.29
mandatory, 26.14
selected, 26.29–26.31
English approach, 26.1–26.27
English law, deemed to be, 26.15
evidence, 26.46–26.47
Fatal Accidents Act 1976, 26.5
Foreign Limitations Periods Act 1984, 26.2 –26.3
forum shopping, 26.188
four stage process, 26.4–26.9
governing law, identification of, 26.6
governmental interest, 26.28–26.29
Hague-Visby Rules, 26.10–26.11, 26.14
interim relief, 14.6, 14.9, 14.45–1.4.50
law of the forum, role of the, 26.38–26.39
limitation of liability, 24.127–24.13 1, 26.45
mandatory provisions, 26.2, 26.14
maritime liens, 26.32 priority, 26.36–26.43 Private International Law
(Miscellaneous Provisions) Act 1995, 26.2 –26.3, 26.30
procedure, 26.4, 26.32–28.47
Protection of Trading Interests Act 1980, 25.26 –25.27
public policy, 26.1, 26.7
foreign legislation, 26.9
priority, 26.38
selection rule, 26.28–26.31
remedies, 26.44
Rome Convention 1980, 26.30, 26.39
selection rule, 26.5–26.15
alternatives to, 26.28–26.3 1
categories and, 26.32–28.47
substance, 26.4, 26.10, 26.32–28.47
territorial application, 26.12–26.13
time limits, 26.34–26.35
Foreign liens
creation of, 17.24
enforceability of, 17.24
Foreign proceedings, injunctions in support of, 16.1, 16.10–16.28
Foreign ships
consular relations, 12.155
seamen’s wages, 12.154–12.155
title to or possession of, 12.156
Forfeiture of goods
Customs and Excise, 2.134
dangerous goods, 2.134
statutory liens, 19.29–19.3 1
Forfeiture or condemnation of ships, 2.131 –2.133
Customs and Excise, 2.131, 2.133
grounds for, 2.132–2.133
Formation of contracts, 6.137, 26.58 –26.62
Forum conveniens. See also Forum non conveniens
appropriate forum, ascertaining the, 12.98 –12.102
balance of convenience, 12.96, 12.99
case management, 12.103
concurrent proceedings, 12.104
domicile, 5.89
harassment, 12.93
limitation of liability, 12.105–12.108, 24.99
Lugano Conventions, 12.105
multiple proceedings, 12.14, 12.21, 12.23
negative declarations, 25.51
relevant factors, 12.98
restrictions, 12.93–12.110
stay of proceedings, 12.93–12.102, 12.107–12.108
time limits, 12.98, 12.100
vexatious and oppressive proceedings, 12.93 –12.94
Forum non conveniens. See also Forum con veniens
arrest, 15.84
delay, 11.9–11.10
English law, 12.110
exclusive jurisdiction clauses, 4.39
foreign ships, 2.156
jurisdiction agreements, 5.56, 12.66, 12.109–12.110
limitation fund, 24.107–24.108
multiple proceedings, 4.36–4.37, 12.15, 12.20–12.24, 12.46
Forum shopping, 25.50, 26.188
Fraud
delay, 11.29
pledges, 23.107
public policy, 28.55–28.56
Freedom of establishment, 5.101
Freezing injunctions, 16. 1–16.60
accrual of cause of actions, 16.14
Admiralty and Commercial Court Guide, 16.36
ancillary orders, 16.4, 16.49–16.52
applications, 16.36
arbitration, 16.60
arrest, 15.95, 16.60
assets,
availability of, 16.21 place of,
16.19–16.28 risk of dissipation of,
16.42–16.48
third parties, 16.17, 16.48, 16.54–16.58
transfer of, 16.21
types of, 16.17–16.18
use of, permitted, 16.43–16.48, 16.60
attachment, 16.4
bank accounts, 16.18
breach, 16.4, 16.6, 16.53, 16.55–16.56
cargo, 16.18
carrying on business, 16.44
case to be made by applicant/claimant, 16.36 –16.40
charges, priority and, 23.102
Civil Procedure Rules, 14.27, 16.9, 16.29 –16.30
co-defendants, 16.47
contempt, 16.4, 16.6, 16.53, 16.55–16.56
damages,
assessment, 16.30–16.32
undertakings in, 16.29–16.48
default, 16.42–16.48
delay, 11.49
development, 14.26–14.27, 16.7–16.28
discharge of, 16.39–16.41
disclosure 16.39–16.40, 16.51–16.52
discretion, 16.9, 16.12, 16.20, 16.25, 16.30, 16.38
effect of, 16.53–16.58
enforcement, 16.11, 16.23, 16.29, 16.35
England, in, 14.27, 16.10–16.28
evidence, 16.8, 16.36
expenses,
indemnities, 16.58
living, 16.44
undertakings in, 16.29, 16.34
foreign proceedings, 16.1, 16.10–16.28
form of the order, 16.59
guarantees, 16.29
history, 14.26–14.27
in personam actions, 9.109, 16.11–16.11A, 16.13, 16.53, 16.60, 23.118
in rem actions, 16.4, 16.12–16.13, 16.60, 23.118
indemnities, 16.58
information, provision of, 16.3, 16.9, 16.29, 16.45, 16.51 –16.52
insurance proceeds, 16.18
interim injunctions, 16.7
interim relief, 14.14, 14.26–14.28, 16.7
knowledge required for breach, 16.56
likely default, 16.42–16.48
living expenses, 16.44
maximum sum, 16.59
nature and purpose of, 16.1–16.6
notice, 16.9, 16.37, 16.40
outside the jurisdiction, 14.47
ownership, 16.2
preservation of property, 14.24, 14.26–14.27
priority, 16.5, 16.43, 23.102
provisional measures, 16.23, 16.28
receiver, appointment of, 16.50
reconsideration of, 16.40
refusal to grant, effect on third parties of, 16.58
roots of, 16.7–16.28
sanctions, 16.4, 16.6, 16.53, 16.55–16.56
search orders, 14.27
security of costs, 16.31
security, provision of, 16.41, 16.60
service outside the jurisdiction, 16.1 1A
set-off, 16.45, 16.55, 16.57
Supreme Court Act 1981, 14.26, 16.7, 16.15
third parties, 16.17, 16.48, 16.54–16.58, 16.60
undertakings, 14.42, 14.83, 16.29–16.48, 16.60
variation, 16.5, 16.44
worldwide, 16.11A, 16.21–16.29, 16.35, 16.52, 16.60
Freight
advance, 18.40
arrest, 15.52–15.54, 15.98, 18.39
assignment, 23.152–23.153
bail, 18.39
bottomry, 18.42
hire, 22.26–22.27
liens 22.4–22.6, 22.9, 22.12, 22.18, 22. 1–22.29
hire, 22.26–22.27
maritime liens, 18.38–18.40, 18.42
maritime possessory liens, 20.44–20.45
mortgages,
priority and, 23.94–23.99
salvage, 6.169
statutory liens, 19.33, 19.35, 19.38, 23.151–23.153
sub-freight, 21.11, 22.12, 22.17, 22.21–22.29, 23.64
sub-sub-freight, liens on, 22.28–22.9
unpaid, 22.25
Fund Convention 1992, 2.149
Brussels Regulation, 5.12, 6.32–6.33, 6.36
Civil Liability Convention, 3.35–3.36, 6.31
compensation, 2.154, 3.35–3.36
English law, reflected in, 3.35
government ships, damage caused by, 2.155
headquarters of, 2.154, 3.35–3.36, 6.33
implementation of, 2.153
IOPC Fund, 24.146–24.147
jurisdiction, 3.35–3.36, 6.28–6.36
parties, 6.36
preventative decisions, damage caused by, 2.155
Protocol 2003, 2.156, 3.36, 6.33, 28.38
recognition of judgments, 28.33 –28.34
Supplementary Fund, 2.156
transitional provisions, 2.153
Future, jurisdiction looking to the, 2.25
Gencon charterparty, 22.13, 22.17
General average
applicable law, 26.154–26.157
Arrest Convention, 2.235
average bonds, 26.156–26.157
definition, 2.235–2.236
contract, 26.150–26.157
maritime possessory liens, 20.43, 20.47–20.48
possessory liens on cargo, 2.237–2.23 8
Rome Convention, 26.155–26.157
unjust enrichment, 26.150–26.152, 26.158
York-Antwerp Rules, 2.236
Gibraltar
Goods, loss or damage to, 2.171–2.177
Arrest Convention, 2.175
baggage,
definition of, 2.176
employees, 2.176
master and crew, 2.176
passengers, 2.176
definition of goods, 2.176
physical damage, 2.177
salvage, 2.171
ships,
carrying, 2.172–2.173
meaning of, 2.172–2.173
sweeping up provisions in SCA 1981, 2.174–2.175
sweeping up provisions in SCA 1981, 2.174–2.175
Governing law
charterparties, liens and, 22.34
identification of, 26.6
Government ships
arrest of, 15.76–15.78
damage caused by government ships, 2.155
foreign governments, 15.76
foreign ships or other property, 15.78
immunity, 18.53
notice, 15.78
Guarantees or letters of undertakings
acknowledgment of service, 15.14 1
amount of security, 15.140
arrest, 15.61, 15.130–15.131, 18.109
example of wording, 15.139
P&I Clubs, 15.61, 15.128
re-arrest, 18.109
Habitual residence
Hague Convention on Service Abroad
Brussels Regulation, 6.85, 28.19
central authority, establishment of, 6.83
consular authority, service through, 9.104
evidence of service, 6.83
government authority, service through, 9.104
judicial authority, service through, 9.104
methods of service, 6.83
proof of service, 6.83
regulation, replacement by, 3.14, 6.82, 9.99 –9.100
Hague Convention relating to the Uniform Law on the International Sale of Goods
1964, 6.149
Hague Rules
limit of liability, 6.42
parties, 6.43–6.44
Hague-Visby Rules
amendments, 11.19
delay, 11.18–11.20, 11.33
extinguishments of claims, 11.18
foreign law, application of, 26.10–26.11, 26.14
implied jurisdiction provisions, 3.19
jurisdiction, 3.19, 3.27, 6.41 –6.44
limit of liability, 3.27, 6.42, 24.22–24.23
parties, 6.44
want of prosecution, 11.46
Hamburg Rules, 1.74, 3.40
arbitration, 15.30
arrest, 15.10, 15.28–15.31
commencement of action in state of, 6.46
convention, 15.31
security, 6.46
entry into force, 6.45, 15.28
jurisdiction, 6.45–6.49, 15.31
jurisdiction on the merits, 15.29
parties, 6.48–6.49
provisional remedies, 15.29
Harassment, 12.93
Harbour authorities
definition, 2.61
detention, 2.116
maritime possessory liens, 20.55–20.59
property salvage, 2.60–2.6 1
sale, power of, 23.84
Harbour authorities, possessory liens and
arrest, 20.57, 20.59
detention,
need for, 20.56
statutory rights of, 20.55, 20.57–20.59
dock dues, 20.56
necessaries, 20.56
priority, 20.56, 20.59
sale,
expenses of, 20.59
power of, 20.55, 20.57–20.59
seizure, 20.59
Hardship
delay, 11.7
time limits, 26.34
Harmful event. See Place where harmful event occurred
Hazardous and Noxious Substances Convention
applicable law, 24.159, 24.16 1–24.162
application of, 6.76
arrest, 6.79
Brussels Convention 1968, 5.12, 6.78, 24.163
Brussels Regulation, 5.12, 6.78, 24.163
Civil Liability Convention, 6.76–6.77
contributions to fund, 2.162
entry into force, 2.158, 3.19
geographical scope, 2.159
HNS Fund, 2.158, 2.160–2.162, 6.79–6.8 1
insurance, 2.160, 6.79
jurisdiction, 3.19, 6.76–6.81, 12.150, 24.157–24.158, 24.161
knowledge, date of, 2.160–2.16 1
limit of liability, 2.160, 6.79, 24.152–24.162
limitation funds, 2.33, 24.154–24.158, 24.161–24.162
parties, 6.78
preventative measures, 12.150, 24.157
priority, 6.76
recognition of foreign judgments, 24.160–24.162
shipowners, 24.153–24.156
strict liability, 2.160
Hire
charterparties, 22.4, 22.9, 22.13, 22.2 1–22.29, 23.94–23.99
freight, 22.26–22.27
sub-hire, owner’s liens on, 22.8–22.9, 22.21–22.29
sub-sub-hire, liens on, 22.28–22.9
use or hire of ship, claims relating to, 2.178 –2.179, 2.192–2.200
HNS. See Hazardous and Noxious Substances Convention
Hovercraft, 18.30
Human rights. See European Convention on Human Rights, Human Rights Act 1998
Human Rights Act 1998, 0.15–0.19
declarations of incompatibility, 0.16
fair trials, 0.17–0.18
primary legislation, validity of, 0.16
public authorities, 0.15
subordinate legislation, validity of, 0.16
Hypothecation
Maritime Liens and Mortgages Conventions, 18.130, 18.138, 18.143
Immobilisation of property after arrest, 15.105
Immovable property
Brussels Convention 1968, 5.19–5.2 1, 6.198
choice of law, 26.107, 26.164, 26.184
contract, 6.198
domicile, 6.97
exclusive jurisdiction, 5.19–5.2 1
tenancies, 5.20
title, 5.21
Immunity, 18.94–18.95. See Crown proceedings, Sovereign immunity
In personam actions, 9.1–9.110. See also Remedies, in personam actions and,
Service, in personam claims and
acknowledgment of service, 9.52, 9.55 –9.58, 9.63–9.64
Admiralty Court, 2.244, 9.7
appearance of defendant, 9.61–9.62
appropriate forum, 9.93–9.98
arbitration awards, enforcement of, 2.20 1–2.203, 25.46
arrest, 9.65, 14.74–14.75, 15.41, 15.66–15.67
warrants, 15.56, 15.59, 15.97
availability of, 2.240, 9.1
bail, 15.135, 15.137
bailment, 23.49
bunkers, 18.33
cargo, 23.92
challenge to the exercise of jurisdiction, 9.58 –9.60
charges, priority and, 23.103, 23.167
charterparties, 10.55–10.56, 23.44–23.45
choice of law, 18.45–18.47, 18.50–18.57, 18.62, 18.66–18.69, 26.23
Civil Procedure Rules, 0.6–0.7, 0.33, 2.244, 9.2–9.8, 9.17–9.19
claim forms,
amendment of, 9.40–9.4 1
issue of, 9.63–9.64
collisions, 2.240, 2.244–2.245, 3.31
commercial claims, 9.8
county court, 9.2
damage done to a ship, 2.15, 2.242
damages, 25.62
defence, 9.53
disputing the court’s jurisdiction, 9.55–9.57
enforceability, 2.240–2.247, 9.10–9.12
execution creditors, 23.175
finality, 25.2
foreign judgments, enforcement of, 27.26–27.27, 27.30, 27.33–27.40, 27.48
Commonwealth countries, 27.52
freezing injunctions, 9.109, 16.11–16.11A, 16.13, 16.53, 16.60, 23.118
goods, loss or damage to, 2.172, 2.174 –2.175
guarantees or letters of undertakings, 15.140–15.141
hearings, 9.6
immovables, 5.20
in rem actions, 9.9–9.14, 9.60–9.67, 10.27–10.48, 10.84
beneficial owners, 10.42
concurrent claims, in rem actions and, 10.84
enforcement, 2.32
jurisdiction with no reference to, 2.24 1–2.244,
maritime liens, 17.39–17.43, 17.50, 17.62
priority, 23.12
relevance of liability in personam, 2.222
remedies, 25.52–25.53, 25.59–25.62
judicial sale, 23.179, 25.54, 25.59–25.6 1, 23.179
leases, 23.49
liens, 23.167
enforceability, 18.45–18.47, 18.50–18.57, 18.62, 18.66–18.69
in rem actions, 17.39–17.43, 17.50, 17.62
masters,
disbursements, 2.95, 2.233
wages, 2.224–2.225
meaning, 1.7, 9.10
merger, 27.1, 27.4–27.6
mortgages, 9.10, 23.83–23.96, 23.92, 23.128, 23.131, 23.167
operation or maintenance, goods supplied for, 2.222
ownership, 23.164–23.166
particulars of claim, 9.53
pilotage, 2.2 17
pledges, 23.106
priority, 23.3–23.8, 23.55
bailment, 23.49
in rem framework, in the, 23.12–23.13, 23.160–23.180
leases, 23.49
mortgages, 23.167
title, 23.15
procedure of enforcement, 9.2–9.8
recovery of money or property, 2.227
Register of British Ships, 23.82–23.86
restitution, 26.146, 26.148
seaman’s wages, 2.224–2.225
security, 9.13, 9.65
sister ships, 10.49
specific performance, 25.63–25.64
statutory liens, 19.26–19.32, 23.147–23.149, 23.157
characteristics of claims, 19.17
enforcement, 19.12, 23.110
legal consequences of, 19.38
nature of, 19.2, 19.13
past jurisdiction, 19.22
solicitors, 23.111
submission to the jurisdiction, 9.56–9.60, 9.105–9.107
Supreme Court Act 1981, 1.3, 1.6–1.9, 1.50, 2.240–2.247, 9.1, 9.9
Supreme Court Rules, 9.2
transfer of proceedings, 9.7
trespass, 12.151
tripartite nature of maritime claims, 0.5–0.7
In rem actions, 10.1–10.85. See also In rem actions, maritime liens and,
Remedies, in rem actions and
acknowledgment of service, 10.75–10.78, 10.84
Administration of Justice Act 1956, 0.34, 10.3, 10.29, 10.32, 10.43
Admiralty Court, 2.32, 10.1, 10.16
amendments, 10.79
arbitration awards, 2.20 1–2.206
arrest, 14.74–14.75, 15.1, 15.5
bail, 10.11, 10.83
English law, 15.40–15.46, 15.52, 15.55–15.67
release, 10.83, 15.118
security, release with, 10.83
warrants, 15.56–15.61
Arrest Convention 1952, 10.3–10.4, 10.25, 10.29–10.34, 14.75–14.78
availability of, 10. 1–10.2, 10.19–10.59
bail, 10.11, 10.83
bailment, 23.49
beneficial owners, 10.37–10.38, 10.42–10.43, 10.47, 10.58
Brussels Convention 1968, 10.63–10.65, 10.82, 28.15
bunkers, 18.33
carriage of goods, claims arising out of agreements on the, 2.178 –2.191
cause of action arose, time when, 10.35 –10.4 1
charges, 2.128–2.130, 23.105, 23.167
charterparties, 10.32–10.36, 10.39–10.41, 10.48, 10.55–10.56, 23.46
Civil Jurisdiction and Judgments Act 1982, 10.15, 10.34
claim forms,
issue of, 10.42, 15.8 1–15.83
service, 10.61
collisions, 2.245, 3.3 1–3.32
connection with a ship, in, 10.3–10.4, 10.25–10.34
corporate veil, piercing the, 10.44–10.46
county court jurisdiction, 10.85
Crown proceedings, 12.139–12.141, 12.143
damage done by ships, 2.145–2.148
damage received by a ship, 1.12, 2.15–2.17, 2.139–2.144, 10.3, 10.25
damages, 25.62
deodand, 10.13–10.18
demise chartered ships, 10.32–10.35, 10.39–10.41, 10.48
disbursements, 2.231–2.234
dismissal of proceedings, 15.83
dock charges or dues, 2.223
domicile, 10.63
duration of, 10.82–10.83
enforceability, 2.138, 10.14
equipment, 2.223
finality, 25.2–25.5
financing, effect of long-term, 10.47
foreign judgments, enforcement of, 2.22, 27.27–27.36, 27.40, 27.48–27.5 1
forfeiture or condemnation of ships, 2.131 –2.133
freezing injunctions, 16.4, 16.12–16.13, 16.60, 23.118
goods,
forfeiture of, 2.134
loss or damage to, 2.17 1–2.177
operation or maintenance, supplied for, 2.2 18 –2.222
government ships, 15.76, 15.78
guarantees or letters of undertakings, 15.140 –15.141
historical development of, 10.7, 10.12
hypothecs, 10.13–10.18
immovables, 5.20, 6.198
in personam claims, 9.9–9.14, 9.60–9.67, 10.27– 10.48, 10.84
concurrent claims, in rem actions and, 10.84
enforcement, 2.32
jurisdiction with no reference to, 2.24 1–2.244,
maritime liens, 17.39–17.43, 17.50, 17.62
priority, 23.12
relevance of liability in personam, 2.222
remedies, 25.52–25.53, 25.59–25.62
institution of claims, 10.1, 10.68–10.74
insurance policies, assignment of, 10.47
interim relief, 14.17, 14.85
joinder, 10.84
judgments, 18.117, 27.47
judicial sale, 23.179, 25.54–25.61
jurisdiction,
arrest, 10.61
assertion of, 15.81–15.83
county court, 10.85
optional allocation of, 2.220, 2.222
substantive, 10.61
leases, 23.49
life salvage, 2.53
limitation funds, 2.33, 24.73
link between issue and England, 10.61–10.66
list of claims, 1.11
long-term financing, 10.47
loss of life or personal injury claims, 2.73, 2.147, 2.166 –2.170
maintenance, goods supplied for, 2.218–2.222
masters’ wages, 2.224–2.226
meaning, 1.12
merger, 27.1, 27.4–27.6
mortgages, 10.47
foreign, 2.130
priority, 23.91, 23.93, 23.98, 23.126, 23.13 1, 23.167
multiple proceedings, 10.15, 12.41, 12.44–12.45
nature of action, 10.6–10.18
nuclear damage, 2.163–2.165, 12.148
oil pollution, 2.149–2.156
operation or maintenance, goods supplied for, 2.2 18 –2.222
outside the jurisdiction, service, 10.61
ownership, 10.37–10.38, 10.57, 23.164–23.166
piercing the corporate veil, 10.44–10.46
registered owners, 10.37–10.38
shams, 10.44–10.45
shares in ship, 2.122–2.126
past, jurisdiction looking to the, 2.14
personification theory, 10.7–10.9, 10.16
pilotage, 2.113, 2.217
pledges, 23.109
possessory liens, 20.2, 20.36, 23.122
priority, 10.66, 23.3, 23.8–23.13, 23.72, 23.105, 23.167
bailment, 23.49
leases, 23.49
mortgages, 23.46, 23.91, 23.93, 23.98, 23.126, 23.13 1, 23.163, 23.167
ownership, 23.164–23.166
pledges, 23.109
title, 23.43
procedure, 10.10–10.12, 10.67–10.83
property subject to, 10.17–10.18
recognition of foreign judgments, 27.47
repair of ships, 2.223
salvage, 2.53, 2.207–2.2 15, 2.199, 6.169
seaman’s wages, 2.78–2.79, 2.87
seizure, 10.10
service of claim forms, 3.2, 10.61
acknowledgment of service, 10.84 Brussels
Convention or Regulation, 10.64–10.65
outside the jurisdiction, 10.61
shams, 10.44–10.45
ships, claims against particular, 10.25–10.34
sister ships, claims against, 2.138, 10.26, 10.49 –10.56
Supreme Court Act 1981, 1.3, 1.6, 1.10 –1.13, 1.50
enforcement of foreign judgments 2.22
sweeping up clause, 2.14
statutory liens, 19.1–19.34, 23.147–23.149, 23.153–23.156
attachment, 18.1
enforceability, 19.13–19.16, 19.38, 23.157
enforcement, 18.6
maritime liens, 2.102, 17.36–17.38, 17.44, 17.52, 17.54
termination, 19.37
succession, 10.42
Supreme Court Act 1981, 10. 1–10.61
sweeping up clause of, 10.2, 10.4
third party rights, 10.80–10.81, 15.109
time charters, 10.55–10.56
time for bringing action, 10.42–10.48
towage, 2.2 16
treaties and conventions, 3.7, 10.62–10.66
trespass, 12.151
tripartite nature of maritime claims, 0.5 –0.7
use or hire of ship, claims relating to, 2.178 –2.179, 2.192–2.200
veil, piercing the corporate, 10.44–10.46
voyage charters, 10.55–10.56
In rem actions, maritime liens and, 0.9, 23.119, 23.167
arrest, 10.6, 10.82, 17.40, 17.59–17.60
categories of claims, 17.44
claims attracting maritime liens, 2.34–2.12 1
consequences of attracting maritime liens, 18.2
definition of maritime liens, 17.55–17.63
deodand, 10.13–10.18
enforceability, 17.35, 18.45, 18.61–18.62
enforcement, 17.36–17.57
extinction, 18.83–18.84
hypothec, 10.13–10.18
identity of parties, 17.62
in personam actions, 1.5–1.6, 17.39–17.43, 17.50, 17.62
nature and scope of in rem actions, 17.38–17.63
nature of maritime liens, 18.5–18.27
origins of maritime liens, 10.13–10.18
personification theory, 10.8–10.9, 17.53, 17.55–17.56, 17.63
priority, 17.44
property subject to maritime liens, 10.17–10.23
proprietary interests, 10.35–10.36, 17.42
seizure, 17.60
statutory liens, 2.102, 17.36–17.38, 17.44, 17.52, 17.54
Supreme Court Act 1981, 1.11, 1.13, 17.45–17.51
sweeping up clause, 17.49
third parties, 17.60–17.6 1
Industrial action, 6.165
Initial proceedings, allocation of jurisdiction under the Brussels Convention and
Regulation in, 4.42–4.43, 6.1–6.198
Arrest Conventions, 6.5
mandatory allocation, 6.86
optional allocation, 6.87–6.198
tort, delict or quasi-delict, 6.159
relevant, 6.11–6.85
Injunctions, 1.20. See also Anti-suit injunctions, Freezing injunctions
arbitration, 14.58
balance of convenience, 14.21
contracts, enforcement of, 25.42
damages, adequacy of, 14.21
delay, 11.49
disclosure, 14.22
English courts, in, 14.19–14.22
in rem injunctions, 25.47
interim, 14.1, 14.18–14.22, 25.47
just and convenient, 14.19
mandatory, 25.42
performance, compelling, 25.42
serious question to be tried, 14.21
service, 9.89–9.90
Inland Revenue claims, 9.79
Inland waters, salvage in, 2.51, 2.62
Innocent passage, right of, 6.74
Insolvency. See also Bankruptcy, Winding up or liquidation
companies, 17.28–17.33
liens, 17.28–17.34, 20.60
possessory liens, 20.15–20.18, 20.60
stoppage in transit, 23.114
Institution of proceedings
appearance, default of, 28.7 1–28.72
arbitration, 13.52, 13.54
Arrest Convention 1952, 6.12–6.2 1
Civil Liability Convention 1992, 6.28–6.29
CMR Convention, 6.5 1–6.56
collisions, 2.245, 6.24–6.27
domicile, 5.78
Fund Convention, 6.28–6.29
Hague Convention on Service Abroad, 6.82 –6.83
Hamburg Rules, 6.45–6.49
in rem actions, 10.1,10.68–10.74
issue of claim forms, 10.68, 11.13–11.38
Law of the Sea Convention, 6.73–6.75
limitation of liability, 2.247, 6.61–6.66, 6.88–6.89, 24.47, 24.82
Maritime Liens and Mortgages Conventions, 6.67 –6.68
nuclear damage, 6.37–6.39
renewal of claims, 10.70–10.71
Rhine Navigation Convention 1868, 6.77 –6.68
service, 6.82–6.85, 9.17, 9.21, 10.68–10.74
sister ships, claims against, 10.68
substituted service, 10.74
time limits,
extension of, 10.69
particulars of claim, service of, 10.72
service, 10.68–10.71
Insurance
insurance brokers’ liens, 20.52–20.54
P&I Clubs, guarantees provided by, 15.61, 15.128
subrogation, 18.87
tort, delict or quasi-delict, matters relating to, 6.160
Insurance contracts. See also Insurance contracts, domicile and
assignment, 10.47
carriage of goods, 2.183–2.184, 2.187–2.188
choice of law, 26.90, 26.118
domicile, 6.95, 6.96–6.114
deemed, 5.72–5.74, 5.94, 5.96
EC law, 26.90
EEA states, risks in, 26.118
England, Scotland and Northern Ireland, jurisdiction as between, 7. 20–7.2 1
jurisdiction agreements, 5.58–5.59, 5.66
third parties, 5.58–5.59, 5.66
use or hire of ship, claims relating to, 2.193
Insurance contracts, domicile and
accession, 6.112
beneficiaries, 6.99, 6.101–6.103
branches, agencies or establishments, operations of, 6.10 1, 6.104
claims, 6.104
combined transport, 6.108
commercial insurance, 6.98
consumer insurance, 6.97, 6.112
compulsory insurance, 6.97
goods destroyed or lost, 6.108
hull insurance, 6.108
insured, claims by, 6.101–6.103
jurisdiction agreements, 6.99, 6.103–6.114
luggage, damage to, 6.108
marine risks, 6.108–6.109
multi-defendant claims, 6.102
optional jurisdiction proceedings, 6.95, 6.96 –6.114
passengers, injury to, 6.108
place of harmful event, 6.10 1
policy holders, claims by, 6.101–6.103
Intellectual property, 5.28, 12.126
Interest on damages and debt
date of running of interest, 25.37
delay, 11.2, 11.40, 11.48
late payments, 25.38
rate, 25.37
Interim relief. See also Interim relief, arbitration and Administration of Justice Act
1956, 0.26
arrest, 14.4, 14.31, 14.84, 14.86
Brussels Convention 1968, 14.12, 14.46–14.52, 14.60–14.83
Brussels Regulation, 14.12, 14.46–14.52, 14.60–14.83
Civil Jurisdiction and Judgments Act 1982, 14.12, 14.45 –14.48
Civil Procedure Rules, 14.3, 14.8, 14.12, 14.15, 14.30, 14.41, 14.52
claimants, in favour of, 14.10–14.33
controlling of actions of parties before hearing, 14.18 –14.23
counterclaims, 14.48–14.49
dealings in a ship, prohibition of, 14.23
declarations, 14.8
defendants, in favour of, 14.11, 14.34–14.52
disclosure, 14.15, 14.33
dissipation of assets, measures against, 14.24 –14.28
English courts, in, 14.1–14.5
evidence, 14.15–14.17
extension of powers of, 14.45–14.52
floating charges, crystallization of, 14.18
foreign element, 0.21
foreign proceedings, in support of, 14.6, 14.9, 14.45–14.50
freezing injunctions, 14.14, 14.26–14.28, 16.23
inherent jurisdiction, 14.12
injunctions, 14.1, 14.18–14.22, 25.47
interim declarations, 14.8
judgment, measures after, 14.84–14.85
jurisdiction, 0.36, 14.8–14.9, 14.12
Lugano Convention, 14.12, 14.46–14.52, 14.60–14.83
merits, substantive remedies prior to hearings on, 14.29 –14.30
nature and basis of, 14. 1–14.86
notice, without, 14.32
post-judgment, 14.2, 14.5
pre-judgment, 14.2, 14.5, 14.9, 14.84
preservation of property, 14.24– 14.25
procedure, 14.10–14.59
receivers, appointment of, 14.4, 14.18
search orders, 14.16
security,
alternative, 14.4
counter, 14.42–14.44
security for costs, 14.34–14.4 1
service, 9.71, 9.78, 9.79, 9.91–9.92, 14.52
Supreme Court Act 1981, 14.1, 14.12, 14.15, 14.18
third parties, 14.9
tripartite nature of maritime claims, 0.2
types of relief, 14.10–14.59
undertakings, 14.13, 14.34, 14.42–14.44
Interim relief, arbitration and
Arbitration Act 1996, 14.1, 14.4, 14.7, 14.58
arrest, 14.56–14.58, 14.79
courts, powers of the, 14.54–14.55
enforcement proceedings, 14.55
evidence, 14.53–14.54
injunctions, 14.58
oaths or affirmations, 14.53
preservation of property, 14.53–14.54, 14.58
procedure, 14.59
seat of arbitration, 14.57
security, 14.55–14.56
costs, for, 14.53
service outside the jurisdiction, 14.59
tribunal, powers of, 14.53
International Salvage Convention 1989. See Salvage Convention 1989
International trade, 5.45–5.49, 5.51, 5.60
Internet sales, 6.116
Interpleaders, 12.38
Intervention
arrest, 15.114–15.115
cargo, arrest of, 15.115
English law, 15.114–15.115
interests in ships, persons having, 15.114
notice, 15.114
IOPC Fund, 15.114
remedies, 25.10
third party rights, 10.81, 15.115–15.116
IOPC Fund, 2.77
intervention, 15.114 jurisdiction,
24.149 limitation of liability, 24.146–
24.148
notice of claims, 24.147–24.148
Irreconcilable judgments
court of another state, irreconcilable with judgments of, 28.77
expediency criteria, 12.47–12.48
meaning, 12.47, 28.75
multiple proceedings, 12.9–12.10, 12.16, 12.42, 12.47–12.49
recognition of judgments, 28.43, 28.52, 28.73 –28.77
seisin, 12.49
Issue estoppel
arrest, 15.64, 15.66
conditions, 27.2
enforcement of judgments, 27.1–27.6, 28.6, 28.24–28.25
finality, 25.1, 25.3–25.4
foreign judgments, 15.64
enforcement of, 27. 1–27.6
judgments on judgments, 28.24–28.25
jurisdiction, restrictions on, 12.111–12.112
merger, 27.3–27.4
Jetsam, flotsam, langan and derelict, 2.135, 18.43
Joinder, 6.188
delay, 11.35
domicile, 5.80
Judgments. See also Default judgments,
Enforcement of judgments, Irreconcilable
judgments, Judgments and settlements within
the European judgments regime, Merger of
judgments, Money judgments, Recognition of
judgments
arrest, 15.63–15.67, 18.117
finality, 25.1–25.5
judgments on, 27.13, 28.24–28.25
reservation of, 28.10 1
summary, 13.55–13.56
Judgments and settlements within the European judgments regime, 28.1 –28.77 See
also Appeals against recognition or enforcement within the European judgments regime,
Enforcement of judgments within the European judgments regime
ancillary orders, 28.18–28.19
appearance, default of, 28.60, 28.63, 28.64–28.65, 28.68–28.69, 28.72
arrest, 28.17
Athens Convention, protocol to, 28.40
authentic instruments, enforcement of, 28.10 –28.11
connection with a member state, requirement for, 28.13
costs, 28.14, 28.18
declining jurisdiction, 28.22
enforcement, 28.17
ex parte proceedings, 28.17
expenses, 28.14
Hague Conventions on Service Abroad, 28.19
interest, 28.18
jurisdiction,
declining, 28.22
exorbitant, 28.26
limitation funds, establishment of, 28.16
non-contracting states, judgments of, 28.25
precedence of judgments given within other conventions, 28.26 –28.3 5
procedural orders, 28.18
procedure or substance, 28.20–28.23
settlements, enforcement of, 28.10–28.11
substance, 28.20–28.23
treaties and conventions, precedence of judgments within, 28.26 –28.35
types of judgments, 28.14–28.41
Judicature Acts
common law, 1.19
equity, 1.19
jurisdiction, 2.19
Judicial co-operation, 3.13, 3.43–3.45
Judicial creativity, 1.26–1.29, 16.7, 17.13
Judicial or forced sale
Admiralty Marshal, powers of, 15.126, 25.57 –25.58
applications, 25.55
arrest, 15.2, 15.125–15.26
release, 15.118
warrants, 15.98
co-owners, 2.124
distribution of proceeds, 18.132
fees and expenses, 25.57
foreign currency, sale in, 25.58
general powers, 25.54
in personam actions, 23.179, 25.54, 25.59–25.6 1
in rem actions, 23.179, 25.54–25.61
maritime liens, 2.37, 10.40, 18.119
Maritime Liens and Mortgages Conventions, 6.67, 18.132 –18.133, 18.138,
18.141–18.144, 28.35
notice, 18.143, 25.57
pending suit, 25.56
port authorities, 23.169
priority, 15.125, 18.132, 23.11, 23.161–23.162, 23.179
publicity, 18.132, 25.55
recognition and enforcement of judgments, 28.35
security, 15.125–15.126, 25.56
service of notice, 25.57
statutory liens, 19.18–19.19, 19.25–19.26, 19.28, 19.38
Jurisdiction. See also Admiralty jurisdiction, Declining jurisdiction, Allocation of
jurisdiction, England, Scotland and Northern Ireland, jurisdiction as between, Exclusive
jurisdiction, Exorbitant jurisdiction, Jurisdiction agreements, Restrictions on
jurisdiction, Submission to jurisdiction
alternative security, arrest and, 15.130–15.131
appearances by defendant, 5.3 1–5.34, 28.60–28.6 1
arbitration awards, enforcement of, 25.46
arrest, 15.5, 15.41, 15.44, 15.80–15.96
Arrest Convention 1999, 6.22–6.23, 15.16, 15.21
warrants, 15.56–15.57, 15.60
Arrest Convention 1952, 0.29, 3.29–3.30, 6.1 2–6.18
merits, jurisdiction on the, 15.12, 15.14–15.15, 15.22–15.23, 15.39
substantive jurisdiction, 15.22–15.23
Athens Convention 1974, 3.21–3.24, 6.57–6.60
bail, 15.134–15.137
Brussels Convention, consideration of jurisdiction under, 4.45 –4.54
Brussels Regulation, consideration of jurisdiction under, 4 .45–4 .5 4
choice of law, 26.16–26.27, 26.174–26.175
Civil Liability Convention 1992, 6.28 –6.29, 24.138
CMR Convention, 3.25–3.26, 6.5 1–6.56
Collision Jurisdiction Convention, 6.24 –6.27, 15.26–15.27
contract, matters relating to a, 6.139
conventions containing provisions on, 0.29
domicile, 5.82–5.94
enforcement of arbitration awards, 25.46
enforcement of foreign judgments, 27.37–27.40
enforcement of judgments, 28.3, 28.45–28.5 1
foreign element, 0.20
Fund Convention, 3.35–3.36, 6 .28–6 .3 6
future, jurisdiction looking to the, 2.25
Hague Convention on Service Abroad, 6.82–6.83
Hague-Visby Rules, 3.19, 3.27, 6.41–6.44
Hamburg Rules, 6.45–6.49, 15.31
Hazardous and Noxious Substances Convention, 3.19, 6.76 –6.81, 24.157–24.158,
24. 161
in rem actions, 10.61, 10.85, 15.81–15.83
interim remedies, 0.36, 14.8–14.9, 14.12
IOPC Fund, 24.149
lack of, 15.80–15.85
Law of the Sea Convention, 6 .73 –6 .7 5
limitation of liability, 5.76, 24.29, 24.31, 24.74
1976 Convention, on, 6.6 1–6.66, 24.82–24.84
merits, on the
arrest, 15.2–15.4, 15.44, 15.80–15.95
Arrest Convention 1952, 15.12, 15.14 –15.15, 15.22–15.23, 15.39
Arrest Convention 1999, 15.16, 15.21
nuclear damage, 3.38, 6.37–6.39
past, based on the, 2.13–2.24, 19.22–19.24
pilotage, 24.170
protective or provisional measures, 14.60–14.68
recognition of judgments, 28.42–28.5 1
remedies, 25.8–25.10
Rhine Navigation Convention 1868, 3.37, 6.67 –6.68
service, 6.82–6.85, 9.17–9.19
special jurisdiction, 6.121, 6.155, 7.1
statute law, 1.30–1.46
stay of proceedings, 12.54, 24.9 1–24.93
tripartite nature of maritime claims, 0.2, 0.10
Jurisdiction agreements, 12.55 –12.87
additional requirements, 5.41–5.42
anti-suit injunctions, 25.19–25.20
appearance by defendants, 5.69
arbitration,
clauses, 12.56, 12.58–12.61
litigation or, 12.58–12.6 1
arrest, 12.85–12.87, 15.84
Athens Convention, 6.59, 12.68–12.69, 12.72
benefit of one party, agreements for the, 5.67 –5.68
bills of lading, 5.48, 5.59
Brussels Convention 1968, 5.7, 5.34–5.7 1, 12.72
Brussels Regulation, 5.35, 5.35–5.71,12.72
choice of law, 5.37, 26.16, 26.18, 26.7 1–26.84
closest connection, 12.56
CMR, 6.53, 12.68–12.69, 12.72
Collision Jurisdiction Convention, 6.25, 12.68 –12.69, 15.26
connection, 5.38
consensus, formalities and, 5.45–5.49
consent, 5.49
construction of clause, 12.56–12.64
consumer contracts, 5.66, 6.120, 7.30
counterclaims, set-off and, 5.53
delay, 11.9–11.10
domicile, 5.38–5.40, 5.61, 5.92–5.93, 6.120
selection of courts of non-member states, 5.55–5.56
employment contracts, 5.64–5.65, 7.30, 8.4
England, Scotland and Northern Ireland, jurisdiction as bet ween, 7.5, 7.13, 7.15–
7.16, 7.19, 7.26–7.29
English law, 12.68, 12.70–12.71, 12.75–12.87
exclusive jurisdiction, 5.41, 5.43–5.44, 5.56, 5.63, 12.64–12.66
foreign judgments, enforcement of, 27.4 1–27.43
formalities, 5.45–5.49, 5.62
forum non conveniens, 5.56, 12.66, 12.109–12.110
Hague and Hague-Visby Rules, 12.70–12.74
Hamburg Rules, 6.46
incorporation of, 5.45, 12.58–12.61
insurance contracts, 5.58–5.59, 5.66
international trade and commerce, form in accordance with, 5.45 –5.49, 5.51, 5.60
Italian Code, 5.7
jurisdiction base, 12.67–12.69
Limitation of Liability Convention 1976, 12.72, 24.94 –24.99
limitations on effect of, 5.63–5.7 1
Luxembourg, persons domiciled in, 5.70 –5.7 1, 6.130
more than one court, selection of, 5.54
national courts, 5.36
national laws, 5.36, 5.39, 5.41, 5.54, 5.59, 5.62
non-member state, selection of court of, 5 .55–5 .57
own motion, court’s own, 5.40
posted workers, 5.65
practices of parties, form in accordance with. 5.45 –5.47
scope of clause, 12.62–12.63
service, 12.64
set-off, 5.53
standard of proof, 5.36
stay of proceedings, 12.57, 12.75–12.84, 18.100
treaties,
application of other, 5.42, 6.11
reference to other, 6.11
validity of, 5.52
writing or evidenced in writing, 5.45, 5.71
Jurisdiction bases, 3.1–3.51
Brussels Convention 1968, 3.41–3.5 1
EC law, 3.11–3.18
European Judgments Regime, applicability of, 5.16
generally applicable jurisdiction bases, 3.41
Lugano Convention, 3.41–3.5 1
particular jurisdiction bases, 3.19–3.40
service, 3.2–3.3
substantive jurisdiction base, 3.1–3.18
treaties and conventions, 3.5–3.10
Jurisdiction clauses. See Jurisdiction agreements
Laches, 11.31, 11.37–11.38
acquiescence, 11.38
estoppel, 11.38
prejudice, 11.37
Land, damage to adjoining, 2.108–2.109
Latent damage, 11.15
Law of the Sea Convention 1982
criminal offences, 3.39
detention, right of, 6.74
innocent passage, right of, 6.74
parties, 6.75
seizure, right of, 6.74
transit, right of, 6.74
Leasing, 23.49–23.51
Legislation. See Statute law
Letters of undertakings. See Guarantees or letters of undertakings
Liability Convention 1992. See Civil Liability Convention 1992
Liability of Operators of Nuclear Ships Convention 1962, 6.37
Liens, 0.8–0.11. See also Charterparties, liens and, Equitable liens, Mortgage
liens, Possessory liens, Solicitors’ liens, Statutory liens
administration orders, 17.3 1–17.33
Admiralty proceedings, 17.16–17.63
bankruptcy, 17.34
charges,
comparison with, 17.3, 17.7–17.10
meaning, 17.7
mortgages, 17.7
purpose of, 17.3
registration of, 23.63, 23.69
chattels, 17.4
choice of, 17.19–17.22
common law, 17.12–17.18
contract, 17.4, 17.10, 17.19–17.21
creation, 17.19
equity, 17.12–17.18, 17.20
foreign judgments, enforcement of, 27.36, 27.49 –27.51
insolvency, 17.28–17.33
meaning, 0.8
mortgages,
charges, 17.7
chattels, 17.4
comparison with, 17.3–17.6
nature and development of, 17. 1–17.63
priority, 17.23, 23.10, 23.52–23.53, 23.72, 23.110–23.159, 23.181
proprietary interest, as, 17.3
purpose of, 17.3
registration of interests, 17.26–17.27
retention, right of, 17.14–17.15
statute, 17.12–17.18
third parties, 17.3, 17.14
winding up or liquidation, 17.29–17.30
Liens and Mortgages Conventions. See Maritime Liens and Mortgages Conventions
Life salvage, 2.52–2.57
January 1, 1995, before, 2.52, 2.208
January 1, 1995, on or after, 2.55–2.57
International Salvage Convention 1989, 2.55 –2.57
maritime liens, 2.53–2.54, 2.57, 2.2 11
priorities, 2.52, 2.54, 2.57
public policy, 2.53
fair share of, 2.55
priorities, 2.52
reasonable, 2.52
Limitation actions. See Limitation of liability
Limitation fund, 24.2, 24.34
Civil Liability Convention 1992, 24.132, 24.139 –24.142
distribution of, 2.152 effectiveness of, 24.5 European
judgments regime, judgments within the, 28.16
Hazardous and Noxious Substances Convention, 24.154 –24.158, 24.161–24.162
priority, 23.172
release of security, 15.124, 24.140–24.141
solicitors’ liens, 23.172 UK, outside the, 24.141 Limitation fund, Limitation of
Liability Convention 1976 and, 6.62 –6.64, 15.34–
15.35, 24.30, 24.70–24.73
arrest,
release from, 24.112
case management conferences, 24.84
distribution of, 2.33, 24.93
establishment of, 24.36, 24.44–24.46, 24.70–24.7 1, 24.77–24.78
interest, 24.84
limitation decrees, 24.93
national law, 24.72
payment into court, 24.83
procedure, 24.77, 24.84, 24.126
release of funds, 24.36, 24.72–24.73, 24.80
security, 24.41, 24.73, 24.80, 24.112, 24.126
time limits, 24.84
wreck removal, 24.42
Limitation of actions. See Time periods
Limitation of liability, 24.1–24.172. See also Limitation of Liability Convention
1976
arrest, 15.33–15.35
Brussels Convention 1968, 6.88–6.89, 24.30, 24.13 1
1976 Convention, 6.6 1–6.6.66, 24.89–24.92, 24.110–24.115
applicability of, 4.34, 5.9–5.10, 5.75–5.76
court hearing actions for, 5.75–5.76
Brussels Regulation, 6.88–6.89, 24.30, 24.13 1
1976 Convention, on, 6.6 1–6.66, 24.26, 24.92, 24.110–24.115
Bunkers Convention 2001, 24.150–24.151
canal owners, 24.171–24.172
claiming limitation, 24.28–24.30
compensation, 24.2–24.3
conflict of laws, 24.119–24.123
connections between liability and limitation, 24.13 –24.15
conservancy authorities, 24.17 1–24.172
declarations, 24.5, 24.28, 24.75
decrees, 24.11–24.12, 24.127–24.131
defence, as, 24.9
dock owners, 24.171–24.172
English law, 24.6–24.7, 24.15, 24.27–24.131, 26.45
findings in proceedings, 24.13
foreign law, application of, 26.1–26.27
foreign limitation decrees, recognition of, 24.127 –24.131
forum conveniens, 12.105–12.108
global limitation, 24.1, 24.10, 24.16–24.19, 24.32–24.13 1, 24.172
Hague Rules, 6.42
Hague-Visby Rules, 3.27, 6.42
harbour authorities, 24.171–24.172
Hazardous and Noxious Substances Convention, 2.160, 6.79, 24.152 –24.162
in personam actions, 2.246–2.247, 24.74
institution of proceedings, 6.88–6.89
international agreements, 24.6
international framework, 24.16–24.26
IOPC Fund, 24.146–24.148
irreconcilable judgments, 12.50, 24.15
jurisdiction, 5.76, 24.29, 24.31, 24.74
justification for, 24.2
limitation decrees, 24.11–24.12, 24.127–24.131
limitation funds, 24.2, 24.5, 24.34
Limitation of Liability Convention 1957, 15.33, 15.121 –15.124, 24.30, 24.32
incorporation of, 24.34
procedure, 24.75
recognition of foreign proceedings, 24.85
link between liability and limitation proceedings, 24.8 –24.15
lis pendens, 6.89
Lugano Convention, 24.30, 24.13 1
Merchant Shipping Act 1995, 2.246–2.247, 24.171
multiple proceedings, 12.40, 1250–12.5 1, 24.120
national law, 24.16
optional allocation of jurisdiction, 6.87–6.88
overlapping conventions, 24.18
package limitation, 23.1
pilotage, 24.164–24.170
powers of limitation court to decide liability, 24.14 –24.15
procedure, 24.74–24.75, 24.12 1, 24.125, 26.45
res judicata, 24.9, 24.13
security, 24.4
service, 9.71
stay of proceedings, 24.14, 24.120, 24.123
substance, 26.45
United States, 24.32, 24.118–24.119, 24.12 1
Limitation of Liability Convention 1976. See also Limitation fund, Limitation of
Liability Convention 1976 and
actual fault or privity, 24.62–24.63
advertisement of decrees, 24.93
amounts, 24.65–24.69
arrest, 15.10, 15.33–15.35, 24.47
cautions against, 15.69, 15.71
provisional measure, as, 15.36
release, 15.34–15.35, 15.123–15.124
Arrest Convention, 6.63–6.64, 24.26
Athens Convention, 24.2 1–24.22
bail, 15.136, 18.107
bar to other actions, 6.63
breaking the limits, 24.62–24.63
Brussels Convention 1968, 6.61–6.6.66, 24.89–24.92, 24.110–24.115
Brussels Regulation, 6.6 1–6.66, 24.26, 24.92, 24.110–24.115
cargo, 24.56
carriage conventions, 24.2 1–24.23
charterers, 24.56–24.57
Civil Procedure Rules, 24.46, 24.48, 24.79
claims within the Convention, 24.53–24.60
CMR, 24.22
Collision Jurisdiction Convention, 6.64, 24.26, 24.88
companies, 24.64
conflict of laws, 24.116–24.126
costs, 24.61, 24.81
courts in which limitation can be claimed, 24.44 –24.50
decrees, 24.93, 24.103–24.105
English law, 24.6–24.7, 24.15, 24.27–24.131, 24.171
exclusions, 24.37, 24.58, 24.60
geographical scope, 24.39
implementation of, 24.35, 24.40
initiation of proceedings, 6.6 1–6.66, 24.47, 24.82
jurisdiction, 6.61–6.66, 24.82–24.85
agreements, 12.72, 24.94–24.99
mandatory, 24.91
knowledge, 24.63
Lugano Convention 24.89–24.92, 24.110–24.115
limitation decrees, 24.93, 24.103–24.105
Mortgages and Liens Conventions, 24.24–24.25
multiple proceedings, 24.47, 24.49, 24.102–24.107, 24.111–24.115
national laws, 24.40–24.4 1
overlapping conventions, 24.18–24.19
particular claims, limitation for, 24.20–24.26
passenger claims, 24.66–24.67
parties, 6.66, 24.32
persons entitled to limit liability, 24.51–24.52
priority, 6.64
procedure, 24.76–24.8 1, 26.45
protocol, 6.61–6.66, 24.33, 24.35–24.38
amounts, 24.68
companies, 24.64
English law, in, 24.33, 24.35–24.38, 24.43
salvage, special compensation and, 24.59
provisional measures, 15.36
recklessness, 24.63
recognition of foreign proceedings, 24.85
res judicata, 24.130
salvage, 24.51, 24.43, 24.59, 24.60
seamen, 24.60
security, 24.36
seised, court first, 24.113–24.115
service of claim forms, 24.82–24.83, 24.86
service out of the jurisdiction, 24.87–24.90
shipowners, 24.51–24.52
ships, meaning of, 24.41
jurisdiction, exercise of, 24.9 1–24.93
time limits, 24.83
tonnage, 24.35, 24.55, 24.65
Tonnage Convention, 24.35
wreck removal, 24.42
Limitation periods. See Time limits
Linked proceedings
criminal courts, civil actions in, 6.182
damages, 6.182
domicile, 6.18 1–6.182
restitution, 6.182
Liquidation. See Winding up or liquidation
Lis pendens
CMR, 6.54
delay, 11.32–11.35
jurisdiction, restrictions on, 12.6, 12.25, 12.28, 12.33
tort, delict or quasi-delict, matters relating to, 6.15 9
Lloyd’s Open Form, 2.196–2.197, 2.209, 26.159
Loans, 2.97
Loss of life
consequential loss, 2.147
damage by ships, claims relating to, 2.72–2.76, 2.147
damages, 2.74–2.75
delay, 11.28, 11.30
Fatal Accidents Act 1976, 2.74–2.76, 2.168
in rem actions, 2.73, 2.147, 2.166–2.170
Maritime Conventions Act 1911, 2.74–2.76
maritime liens, 2.74, 18.89–18.90
Supreme Court Act 1981, 2.169–2.170, 2.213
Lugano Convention 1988, 1.39, 1.46, 1.50. See also Judgments and settlements
within the European judgments regime
anti-suit injunctions, 12.8, 25.16, 25.21–25.22
applicability, 8.3
arbitration agreements, 13.12–13.15, 13.22
arrest, 14.72–14.79
Arrest Convention 1952, 15.9, 15.22–15.25, 15.37
Brussels Convention 1968, 1.36, 1.44, 3.43, 3.47, 8.1 –8.9
Brussels Regulation 2004, 1.46, 8.10–8.11
Civil Jurisdiction and Judgments Act, 0.30,1.46, 3.41
Civil Liability Convention 24.163
differences between Brussels Convention and Regulation, 8.1 –8.11
domicile, 5.96, 8.6
employment contracts, 8.4–8.5, 8.11
Hazardous and Noxious Substances Conv ention, 24.163
in rem actions, 10.63–10.65, 10.82
interim relief, 14.12, 14.46–14.52, 14.60–14.83
interpretation, 3.47
jurisdiction,
agreements, 8.4, 8.6
bases, 3.41–3.51
restrictions on, 12.1–12.24, 12.28–12.30
limitation of liability, 24.30, 24.89–24.92, 24.110–24.115, 24.13 1
parties, to, 3.47, 8.1
priority, 8.3
scope, 3.49–3.50
seisin, 12.27–12.30
service, 3.48, 3.50, 9.68, 9.70, 9.78
trespass, 12.152
Luggage, loss or damage to, 2.176, 6.108
Luxembourg
delivery, 6.13 1
domicile, 5.70–5.71, 6.130–6.131
Maintenance, 2.2 18–2.222, 6.123. See also Operation or maintenance, goods
supplied for
Mandatory jurisdiction
allocation of jurisdiction in initial proceedings, 6.87 –6.198
Mareva injunctions. See Freezing injunctions
Margin of appreciation, 0.18
Maritime liens, 18.1–18.145. See also In rem actions, maritime liens and Maritime
Liens and Mortgages Conventions, Maritime liens, choice of law and, Maritime liens,
enforceability of, Maritime liens, extinction of, Maritime liens, transferability of,
Maritime possessory liens
analogy, extension of jurisdiction by, 2.102 –2.109
arrest, 1.5, 2.37, 17.59–17.60, 18.29, 18.33–18.35
creation, 15.11
enforcement, 10.20–10.21, 10.81, 15.11
English law, 15.53
extinction of, 18.92–18.93
assets subject to, 18.28–18.44
attachment, 18.17–18.25, 18.29
bottomry, 2.23, 2.96–2.100, 2.239, 23.145
enforceability, 18.42, 18.57–18.59, 18.63, 18.73
extinction of, 18.76, 18.80
salvage liens, 23.144
wages claims, priority of, 23.140
cargo, 18.38, 18.41–18.44
characteristics of, 2.36
charge, meaning of other, 2.121, 10.23
charges, priority and, 23.105
coastguard in respect of wrecks, remuneration of, 2.106 –2.109
consequences of attracting, 18.2–18.4
contract, 17.19
damage caused by ships, 2.40, 2.63–2.77, 23.134–23.140
enlarged jurisdiction, 2.43
shipowners’ liability, 18.63–18.64
delay, 11.50
disbursements, 2.89–2.95, 23.142–23.143
established, 2.44–2.101
extension of jurisdiction,
analogy, by, 2.102–2.109
statute, by, 2.42–2.43
forced sale, 2.37
foreign, 2.41
foreign attachment, 18.17–18.25
freight, 18.38–18.40, 18.42
harbours, piers etc, damage done by ships to, 2.115 –2.120
hypothecation, 18.19
inchoate rights, 18.18–18.19, 18.22–18.27
laches, 11.37
legal category of claims, 18.7–18.12
life salvage, 2.53–2.54, 2.57, 2.211
list of claims, 2.36, 2.39, 18.9–18.12
loss of life, 2.74
masters,
disbursements, 2.89–2.95, 2.232–2.233
seaman’s wages and, 23.14 1
wages, 2.88, 2.225–2.226, 23.138
more than one lien, 17.22
mortgages, 18.22, 23.121, 23.126, 23.132, 23.135
nature of, 18.5–18.27
necessaries, 2.111
pilotage, 2.113–2.114
priority, 0.9, 2.36, 23.12 1, 23.123, 23.126, 23.132–23.145
procedural, as, 18.16–18.27
receiver of wrecks, recovery of fees and expenses by, 2.104
recovery of money or property, 2.227–2.230
registration, 17.27
respondentia, 2.101, 10.20, 18.42
salvage, 2.40, 2.43–2.62, 18.115, 23.136–23.139
bottomry, 23.144
convention, 18.44
enforceability, 18.57, 18.63, 18.66–18.69
extinction of, 18.80
flotsam, jetsam, lagan, 18.43
life, 2.53–2.54, 2.57, 2.2 11
property, 2.59, 2.62, 2.2 11
remuneration, 6.168
ship’s apparel, 18.37
wreck, 18.38
seamen’s wages, 2.43, 2.78–2.85, 2.225–2.226, 23.135, 23.138–23.141
secret interests, as, 17.3–18.4
ships, 18.30–18.37
solicitors’ liens, 23.17 1
statutory liens, 19.23, 19.25, 19.27, 19.37
Admiralty jurisdiction, 17.17–17.19, 18.13–18.27, 19.3
analogy, extensions by, 2.102
arrest, 2.37
in rem actions, 18.5, 19.9–19.11
judicial sale, 2.37
priority, 23.121
Supreme Court Act 1981, 1.3, 1.5, 1.50, 2.6, 2.34–2.35, 10.22, 18.28
title, 2.122
towage, 2.112
uncertainty on, 2.38–2.40, 18.4
wrecks,
coastguard, remuneration of, 2.106–2.109
land adjoining, damage to, 2.108–2.109
receivers, recovery of fees and expenses by, 2.104
salvage, 18.38
Maritime Liens and Mortgages Conventions, 18.120 –18.145
1926 Convention, 18.120, 18.125–18.129
1967 Convention, 18.120, 18.123, 18.129–18.133
1993 Convention, 18.120, 18.123, 18.134–18.145
arrest, 15.8, 15.11, 15.38, 18.123, 18.127, 18 .132
assignment, 18.142, 18.145
bail, 18.123
categories of claims, 18.126, 18.131–18.132
charges, 18.138, 18.143
conflict of laws, 18.12 1
extinguishments, 18.143–18.144
follow the vessel, liens, 18.141–18.145
guarantees, 18.123
hypotheques, 18.130, 18.138, 18.143
initiation of proceedings, 6 .67–6 .6 8
judicial sale, 6.67, 18.132–18.133, 18.138, 18.141–18.144
notice, 18.143
recognition and enforcement of judgments, 28.35
jurisdiction, 6 .67–6 .6 8
mortgages, 18.125, 18.130, 18.132–18.136
national laws, 18.121–18.122, 18.127, 18.133, 18.145
parties, 6.68
priority, 18.138–18.139, 23.135, 23.181, 26.36
1926 Convention, 18.125–18.127
judicial sale
mortgages, 23.46, 23.163, 23.167
other liens, 18.133
ratifications, 17.25, 18.120
registration, 18.129–18.130, 18.135–18.138, 18.143
repairers, 18.139
retention, right of, 18.139–18.140
salvage, 18.141
ship repairers and builders, 18.139
scope, 18.122
subrogation, 18.142, 18.145
Maritime liens, choice of law and, 26.25–26.26, 26.169–26.179
attachment, 26.169–26.170
chattels, 26.178–26.179
classification, 26.174–26.177
contract, 26.17 1
English law, 26.169–26.175
movables, 26.178–26.179
priority, 26.172, 26.176–26.179
procedure, 26.170, 26.174, 26.176
remedies, 26.174, 26.176
selection rule, 26.173,
ship repairs, 26.17 1, 26.177
substance, 26.170
Maritime liens, enforceability of, 2.36, 18.2, 18.5, 18.45 –18.73
bottomry, 18.57–18.59, 18.63, 18.73
charters, 18.52, 18.54
collision, 18.58–18.60
creditors, against, 18.46, 18.48
damage cases, 18.63–18.64
disbursements, 18.58, 18.63, 18.65
government ships, immunity of, 18.53
in personam actions, 18.45–18.47, 18.50–18.57, 18.62, 18.66–18.69
in rem claims, .45, 18.6 1–18.62
masters,
disbursements, 18.58, 18.63, 18.65
wages, 18.70–18.73
mortgages, 18.59
notice, 18.49
personal liability, lack of, 18.52–18.56
personification, 18.45–18.46, 18.50, 18.57
pilotage, compulsory, 18.55–18.56
priority, 18.48
procedure, 18.45, 18.57
purchasers, against, 18.46, 18.49
requisitioned ships, 18.55, 18.63–18.64, 18.66–18.67
salvage, 18.57, 18.63, 18.66–18.69
seamen’s wages, 18.57–18.59, 18.63, 18.70–18.72
shipowners,
authority, 18.58–18.60
liability, 18.57–18.73
transfer,
agreement, by, 18.54
voluntary, 18.55–18.56, 18.62–18.63
Maritime liens, extinction of, 18.91–18.119
agreement, 18.114–18.115
arrest, 18.92–18.93
bail, 18.103–18.107
bankruptcy, 18.111–18.112
destruction of property, 18.116
estoppel, 18.114–18.115
foreign states, immunity of, 18.94
guarantees or undertakings, 18.109–18.110
immunity from suit, 18.94–18.96
judgments, 18.116, 18.117
property retained, effect of maritime lien on, 18.10 1
security, provision of, 18.102–18.110
waiver, 18.114–18.115
winding up or liquidation, 18.111, 18.113
Maritime liens, transferability of, 18.74–18.90
assignment, 18.87–18.86
bankruptcy, 18.89
bottomry bonds, 18.76, 18.80
choses in action, 18.78
contribution, statutory rights to, 18.90
damages, 18.79, 18.81
death, 18.89–18.90
involuntary transfer, 18.89–18.90
marine insurance, subrogation and, 18.87
necessaries, 18.84
salvage, 18.80
subrogation, 18.87
voluntary payment of claims, 18.88
voluntary transfer, 18.75–18.88
Maritime possessory liens, 20.40–20.60
agents, 20.50
aircraft, detention of, 20.60
bailment, 20.44
brokers’ liens, 20.52–20.54
cargo, 20.44–20.45, 20.47
common law, 20.40–20.45, 20.49, 20.54
contract, 20.41, 20.44, 20.53
creation of, 20.41
enforceability, 20.43–20.44, 20.54
enforcement, 20.43–20.44, 20.60
freight, 20.44–20.45
general average, 20.43, 20.47–20.48
general liens, 20.40, 20.54
harbour and other public authorities, 20.55–20.59
insolvency, 20.60
particular average, 20.48
particular liens, 20.40, 20.42
priority, 20.43, 20.45
retention of possession, 20.44
salvage, 20.43, 20.44, 20.49
statute, attachment by, 20.5 1–20.60
surrender of possession, 20.46
termination, 20.43–20.44, 20.46
usage, attachment by, 20.42
work done, 20.40
Masters. See Masters’ disbursements, Masters’ wages
Masters’ disbursements
authority, implied or express, 2.90
charterers’ responsibility, disbursements which are, 2.95
definition of disbursements or liabilities, 2.93 –2.95
freight, maritime liens on, 2.95
incurred, payments actually, 2.94
maritime liens, 2.88–2.92, 2.95, 2.232–2.233, 23.138
enforceability, 18.58, 18.63, 18.65
masters’ wages, 2.9 1–2.92, 2.95
necessaries, 2.94
seamen’s wages, 2.90
Masters’ wages
bottomry, 23.140
disbursements, 2.9 1–2.92, 2.95
domicile, 6.129
maritime liens, 2.88, 2.225–2.226, 18.70–18.73, 23.138
seamen’s wages, priority and, 23.142
third party claims, 2.226
Matters relating to a contract, 6.132–6.139
existence of contract, disputes over, 6.135–6.137
formation of contract, 6.137
good arguable case, 6.139
jurisdiction, criteria for assertion of, 6.139
pre-contractual negotiations, 6.134
tort, 6.137
voidable and void contracts, 6.138
Matters relating to tort, delict or quasi -delict
certainty, 6.159 co-
defendants, 6.189–6.191
connecting factors, 6.124–6.126, 6.158–6.167
contract, 6.159, 6.16 1
domicile, 6.124–6.126, 6.158–6.167
initial jurisdiction proceedings, 6.158–6.167
insurers, claims against, 6.160
meaning, 6.159
national law, 6.159
pending actions, 6.159
place where harmful event occurred, 6.162 –6.170
restitution, 26.144
Scotland, 6.160
Merchant Shipping Act 1995
Admiralty Court, 2.26, 2.29
arrest warrants, 15.97
Civil Liability Convention, 2.150, 3.34, 24.132–24.136
droits in Admiralty, 2.136
IOPC Fund, 24.146–24.147
life salvage, 2.56
limitation of liability, 2.246–2.247, 24.171
masters,
disbursements, 2.91
wages, 2.224
mortgages, priority and, 23.74–23.86, 23.90
pilotage, 24.165–24.166
Register of British Ships, 23.24–23.41, 23.74–23.86, 23.90
salvage, 2.44–2.45, 2.50, 11.27
title, priority and, 23.23–23.4 1
Merger of judgments
Civil Jurisdiction and Judgments Acts, 12.112
estoppel, 27.3–27.6
finality, 25.1–25.2, 25.4–25.5
foreign judgments, enforcement of, 27.1–27.6
in rem actions, 27.1, 27.4–27.6
issue estoppel, 27.3–27.4
restrictions on jurisdiction, 12.112
Money judgments
compensatory orders, 25.48
contribution, 25.33
costs, 25.35
damages, 25.34–25.39
enforcement, 25.66–25.67, 27.10, 27.16–27.18
expenses as damages, 25.34
foreign judgments,
currency, 25.36
enforcement of, 27.26, 27.52, 27.54
grounds, 25.33
interest, 25.37–25.39
services rendered, 25.33
unliquidated sums, 25.33
Mortgages. See also Mortgages, priority and
cargo, 23.150
charges, 2.129
chattels, 17.4
delay, 11.28
foreclosure, 25.67
foreign, 2.130
freight, 23.15 1–23.153
foreign, 2.130
liens, 17.3–17.6, 18.22, 18.59, 23.121, 23.135
Maritime Liens and Mortgages Conventions, 18.125, 18.130, 18.132 –18.136
proprietary interests, 26.162, 26.166–26.168
statutory liens, 19.16–19.18, 19.27, 19.29, 23.147–23.154
cargo, 23.150
freight, 23.15 1–23.153 ships,
23.147–23.149 Supreme Court
Act 1981, 2.127
unregistered, 2.127
Mortgages, priority and, 23.52–23.54, 23.74–23.99
assignment, 23.96
bottomry, 23.99
cargo, 23.92
creation of mortgages, 23.94
equitable mortgages, 23.96, 23.127–23.128
foreign mortgages, 23.87–23.90
freight, 23.94–23.99
harbour authorities, power of sale and, 23.84
hire, 23.94–23.99
in personam actions, 23.82–23.86, 23.92, 23.167
cargo, 23.92
priority, 23.128, 23.13 1
in rem actions, 23.91, 23.93, 23.98, 23.126, 23.131, 23.167
insurance money, 23 .94–23 .99
legal mortgages, 23.94–23.95, 23.127
Merchant Shipping Act 1995, 23.74–23.86, 23.90
New Zealand, 23.89
registered ships, 23.74–23.90
registration, 23 .74–23 .90, 23.125–23.130
respondentia, 23.99
statutory liens, 23.91, 23.126, 23.129, 23.131 –23.132
unregistered mortgages, 23.127–23.129
unregistered ships, 23.76–23.81, 23.85–23.86, 23.89
Multimodal Convention 1980
conflict of conventions, 6.50
initiation of proceedings, 6.50
jurisdiction, 6.50
priority, 6.50
Multi-parties or actions, allocation of jurisdiction and, 6.183 –6.198
Brussels Regulation, 6.187A
close connection, 6.183
Collision Convention, 6.187–6.188
counterclaims, 6.188, 6.197
domicile,
date of, 6.184
in rem immovables, 6.198
optional allocation of jurisdiction, 6.88, 6.183 –6.198
priority, 6.187
restrictions on jurisdiction, 12.33–12.34
serious issue to be tried, 6.185
service outside the jurisdiction, 6.185
third party proceedings, 6.187, 6.193 –6.196
Multiple proceedings
accession, relevance of, 12.13
anti-suit injunctions, 4.44, 25.14, 25.16, 25.20
applicability, 12.13
arbitration agreements, 13.14, 13.19, 13.38
arrest, 14.72, 14.74–14.75, 15.42
Brussels Convention 1968, 4.36–4.37, 4.42, 4.46, 12.9–12.24, 12.33–12.52
Brussels Regulation, 4.37–4.38, 4.42, 4.46, 12.9–12.24, 12.46–12.51
causes of action, same 12.36–12.41
concurrent proceedings, 12.23
declining jurisdiction, 4.46, 4.49, 12.13–12.14, 12.22, 12.35
domicile, 12.20–12.24
England, Scotland and Northern Ireland, jurisdiction as between, 7.1, 7.24, 7.28
English courts, 12.19–12.24
exclusive jurisdiction agreements, 12.19, 12.52
forum conveniens, 12.14, 12.21, 12.23
forum non conveniens, 4.36–4.37, 12.15, 12.20–12.24, 12.46
Hamburg Rules, 6.47
identity of interests, 12.42–12.43
in rem actions, 10.15, 12.41, 12.44–12.45
interpleaders, 12.38
irreconcilable judgments, 12.9–12.10, 12.16, 12.42, 12.47–12.49
jurisdiction,
consideration of, 4.46
restrictions on, 12.3, 12.9–12.24, 12.33–12.5 1
limit of liability proceedings, 12.40, 12.50 –12.51, 24.120
1976 Convention, 24.47, 24.49, 24.102–24.107, 24.111–24.115
Lugano Convention, 12.9–12.24
member state and non-member state, 12.14
member states, as between, 12.16
national laws, 12.10, 12.14–12.16
negative declarations, 12.18
non-contracting and contracting states, as between, 4.36 –4.37
pending proceedings, 12.16, 12.17
priority, 12.52
provisional measures, 12.17, 14.69
res judicata, 12.43
same causes of action, 12.36–12.41
same parties, same causes of action between the, 12.36 –12.45
seised, court first, 12.13, 12.20–12.22, 12.46
stay of proceedings, 4.52, 12.22, 12.35, 12.46, 24.113 –24.115
National insurance contributions, 2.83–2.83
National laws
appeals, 28.97, 28.102, 28.106–28.107, 28.113, 28.115, 28.117
Arrest Convention 1952, 15.15, 15.37
Arrest Convention 1999, 15.16, 15.19, 15.21
corporations, seats of, 5.24
domicile, 5.81, 5.94, 6.127
European Judgments Regime, applicability of, 4.13 –4.15, 4.41, 5.2–5.10
judgments, enforcement of, 5.29, 28.46A, 28.48, 28.53, 28.84, 28.87, 28.96
jurisdiction agreements, 5.36, 5.39, 5.41, 5.54, 5.59, 5.62
Maritime Liens and Mortgages Conventions, 18.121 –18.122, 18.127, 18.133,
18. 145
place of performance, 6.140, 6.148 –6.149, 6.153, 6.156
place where harmful event occurred, 6.167
protective or provisional measures, 14.63, 14.65, 14.70
recognition of judgments, 28.46A, 28.48, 28.53
Necessaries
disbursements, 2.232
equipment, 2.223
harbour authorities, possessory liens of, 20.56
masters’ disbursements, 2.9 1–2.92, 2.95
operation or maintenance, goods supplied for, 2.2 18 –2.222
repairs, 2.223
solicitors’ liens, 23.17 1
Negative declarations
discretion, 25.51
English law, 25.50
forum shopping, 25.50
in personam actions, 25.50–25.5 1
positive declarations, 25.50–25.51
Negative pledges, 21.5
Negligent misstatements, 6.163
New York Arbitration Convention 1958, 1.32, 13.9
enforcement of foreign arbitration awards, 27.63 –27.66
ratification of, 13.9
service, 9.98
New York Produce Exchange Charterparty, 22.8 –22.11, 22.17, 22.27–22.29, 22.31
Northern Ireland, 5.111, 14.40. See also England, Scotland and Northern Ireland,
jurisdiction as between
Notice
appeals, 28.110–28.111, 28.116
arrest,
delay, 11.12
enforcement and recognition of judgments of other courts in the UK, 27.23–27.24
government ships, arrest of, 15.78
IOPC Fund, 24.147–24.148
judicial sale, 18.143, 25.57
Noxious substances. See Hazardous and Noxious Substances Convention
Nuclear damage. See also Paris Nuclear Damage Convention, Vienna Nuclear
Damage Convention
exclusion of liability, 2.165
in rem actions, 2.163–2.165, 12.148
jurisdiction, 2.164, 12.148
Nuclear Installations Act 1965, 2.163 –2.165
physical injuries, 2.164
Oaths or affirmations, 14.53
Oil pollution. See also Civil Liability Convention 1992, Fund Convention, IOPC
Fund
arrest warrants, 15.97
damage by ships, claims relating to, 2.77–2.80
damage done to a ship, 2.149 in
rem actions, 2.149–2.156
Merchant Shipping (Oil Pollution) Act 1971, 2.77
Oil rigs and platforms, 18.20, 18.32
One ship companies, 10.44–10.48
Operation or maintenance, goods supplied for, 2.2 18 –2.222
Arrest Convention, ].218, 2.22 1
in rem action, 2.220, 2.222
necessaries, 2.218–2.222
passing of property or possession, 2.2 19
repayments, claims for, 2.218
Opportunity to put case, defendant’s
appeals, 28.108, 28.110–28.114
Optional allocation of jurisdiction
connecting factors, 6.12 1 –6.182
consumer contracts, 6.88, 6.115–6.120
counterclaims, 6.88
domicile, 6.87, 6.90–6.198, 6.115–6.120
initial proceedings, in, 6.87–6.198
insurance contracts, 6.88, 6.95, 6.96–9.114
limit of liability, 6.87–6.89
multi-defendant parties, claims with, 6.88
multi-parties or actions, 6.183–6.198
Ordre public, 26.103
Overriding interests, 23.28
Overriding objective, 9.4
Ownership
arrest, 15.42
beneficial owners, 10.37–10.38, 10.42–10.43, 10.47, 10.58, 23.156
co-owners, 2.124, 2.125, 20.35
in personam actions, 23.1 64–23.166
in rem actions, 10.37–10.38, 10.57, 23.164–23.166
one ship companies, 10.44 –10.46
piercing the corporate veil, 10.44–10.46
registered owners, 10.37–10.38
shams, 10.44–10.45
piercing the corporate veil, 10.44–10.
priority, 23.164–23.166
registered owners, 2.126, 10.37–10.38
shams, 10.44–10.45
statutory liens, 19.16, 19.19, 19.26, 19.28, 19.38, 23.154 –23.157
trusts, 6.180
wrecks, 2.106
Package limitation, 23.1
P&I Clubs, guarantees provided by 15.128
Paris Nuclear Damage Convention
jurisdiction, 3.38, 6.37–6.39
parties, 6.38–6.39
Particular average, 20.48
Particulars of claim, 9.21, 9.35, 9.53, 10.72
Partnerships, 5.23, 12.127
Passengers. See Athens Convention 1974
Past, jurisdiction based on the, 2.13–2.24, 19.22–19.24
Payment into court
alternative security, arrest and, 15.6, 15.128, 15.138
arrest, 15.6, 15.128, 15.138, 18.108
Civil Liability Convention, 24.132, 24.139
Pending actions. See Lis pendens
Pensions, 2.83, 2.225
Performance. See Place of performance
Personal injuries
damage by ships, claims relating to, 2.69 –2.72
delay, 11.28, 11.30
Limitation of Liability Convention 1976, 24.66–24.67
Maritime Conventions 1911, 2.69
maritime liens, 2.70–2.72, 18.90
Personification theory, 17.53, 17.55–17.56, 17.63
in rem actions, 10.7–10.9, 10.16
maritime liens, 10.8–10.9, 18.45–18.46, 18.50, 18.57
Piers, 2.115–2.120
Pilotage
claiming limitation, 24.167–24.169
jurisdiction, 24.170
maritime liens, 2.113–2.114, 18.55–18.58
personal acts or omissions, 24.165
remuneration, 2.113, 2.2 17
Piracy, 2.135
Place of performance
business, place of, 6.149
choice of law, 26.63, 26.97, 26.107–26.110
conflict of laws, 6.147
damages, 6.15 1
delivery, place of, 6.142, 6.146
domicile, 6.132, 6.140–6.157
employment contracts, 6.140–6.141, 6.152–6.155, 8.5
Hague Convention relating to the Uniform Law on the In ternational Sale of Goods
1964, 6.149
Luxembourg, 6.130–6.13 1
mandatory place of performance, 6.151
meaning, 6.140
national law, 6.140, 6.148–6.149, 6.153, 6.156
obligation in question, of the, 6.140–6.157
meaning of, 6.142–6.146
negative, 6.145
positive, 6.145
payment, place of, 6.146, 6.149
pre-contractual representations, 6.143
residence, 6.149
sale of goods, 6.150–6.151
services, provision of, 6.150–6.151
Place where harmful event occurred
certainty principle, 6.163
close connection, 6.162–6.163
connecting factors, 6.162–6.163, 6.165
delivery, place of, 6.166
evaluation of harm, 6.167
industrial action, 6.165
national law, 6.167
negligent misstatements, 6.163
tort, delict or quasi-delict, 6.162–6.170
Pledges
fraud, 23.107
negative, 21.5
priority, 23.52–23.54, 23.106–23.109
registration, 23.106
transfer, 23.106
Pollution. See Oil pollution
Port authorities
detention, 23.115, 23.169–23.170
priority, 23.169–23.170
sale of ships, 23.169–23.170
statutory rights of, 23.169–23.170
Possession of ships
Possessory liens, 20.1–20.60. See also Maritime possessory liens
accept goods, obligation to, 20.30
agents, 20.33
arrest, 20.21
assets subject to, 20.4–20.5
attachment, 20.17
bailment, 20.13–20.14
bankruptcy, 20.18
between possessory liens, as, 23.116
cargo, 2.237–22.38, 17.21
charging orders for solicitor’s costs, 20.39
charterparties, 22.1, 22.3–22.4, 22.11, 22.16, 22.30
commencement of liens, 20.7–20.8
common carriers, 20.30
common law, 20.5–20.22
companies, against, 20.10, 23.112
contract, 20.3–20.5, 20.8, 20.25, 20.33, 20.38
co-owners, 20.35
creation, 17.20, 20.2–20.5, 20.23–20.39
creditors, 20.10–20.11
detention, 23.115
enforcement, 20.2, 20.9–20.14, 23.112–23.113
inconsistent action, taking, 20.21
statute, by, 20.26, 20.38
termination or sale, 20.2 third
parties, 20.25, 20.36–20.37
floating charges, 20.3, 21.4
freight, 17.20
general liens, 20.23–20.27, 20.37–20.38
harbour authorities, 2.116, 20.55–20.59
in rem actions, 20.2, 20.36, 23.122
inconsistent with liens, action, 20.20
insolvency, 20.15–20.18
judicial sale, 20.2
liens, 0.8, 17.13, 20.26, 20.28–20.39, 23.123
liquidators, 20.10–20.11
loss of possession, 20.19
nature of, 20. 1–20.3
particular liens, 20.26, 20.28–20.39
port authorities, detention and, 23.115
present owners, 20.13
preservation of chattel, expenses on, 20.4
priority, 20.8, 20.13, 23.112–23.116, 23.122–23.123, 23.132
receivers, appointment of, 20.8
registration of ships, 23.113
repairs, 2.223, 20.2, 20.7, 20.32
retention, right of, 17.13, 20.1, 20.6, 20.8, 20.14, 20.39
secured creditors, 20.18, 20.36
security, 20.16, 20.18, 20.20
ship repairs, 20.2, 20.7, 20.32
solicitors, 20.34, 20.39
statute, creation by, 20.3–20.4, 20.27, 20.39
stoppage in transit, insolvency and, 23.114
successors in title, 20.12
tender of amount due, 20.22
termination, 20.19–20.22
third parties, 20.12–20.14, 20.36
unpaid sellers, rights of, 23.114
usage, creation of, 20.24–20.25, 20.29–20.30
waiver, 20.20–20.21
winding up, 17.30, 20.10–20.11, 20.15–20.17
work done on chattels, 20.31
Posted workers, 5.65
Precedent, 1.17
Preliminary rulings, 4.9, 4.11–4.12
Preservation of property
arrest of ship, cargo or freight, 14.28
evidence, 14.25
freezing injunctions, 14.24, 14.26–14.27
Priorities, 23.1–23.18 1. See also Charges, priority and, Mortgages, priority and,
Security interests, priority and, Title, priority and
arrest, 15.4
bailment, 23.49–23.51
categories, 23.10–23.11
charging orders, 26.18 1
charterparties,
in personam actions, 23 .44–23.45
mortgages, 34.45
registration, 23.47–23.48
time, use for a specified period of, 23.44 –23.48
choice of law, 26.56, 26.98, 26.184, 26.186 –26.187
detention, 23.169–23.170
English law, 23.4–23.8, 23.14–23.159
equitable interests, 23.5–23.6
equitable liens, 21.5, 21.15, 21.117
European Judgments Regime, applicability of, 5.11–5.14
foreign law, application of, 26.3 6–26.43
freezing injunctions, 16.5, 16.43
harbour authorities, 20.56, 20.59
in personam actions, 23 .3–23.8
bailment, 23.49
in rem framework, in the, 23.12
leases, 23.49
mortgages, 23.167
priority between in rem actions and, 23.13, 23.160–23.180
in rem claims, 10.10–10.12, 10.67–10.83, 23.3, 23.8–23.13
bailment, 23.49
leases, 23.49
mortgages, 23.46, 23.163
ownership, 23.164–23.166
priority between in personam actions and, 23.13, 23.160–23.180
judicial sale, 15.125, 18.132, 23.11, 23.161–23.162, 23.179
lease of goods, 23.49–23.51
legal interests, 23.5–23.6
liens, 17.23, 23.110–23.159, 23.10, 23.181
life salvage, 2.52, 2.54, 2.57
maritime liens, 0.9, 2.36, 23.121, 23.133–23.145
choice of law, 26.172, 26.176–26.179
Maritime Liens and Mortgages Conventions, 18.138 –18.139, 23.135, 23.181,
26.36
1926 Convention, 18.125–18.127
judicial sale
mortgages, 23.46, 23.163, 23.167
other liens, 18.133
maritime possessory liens, 20.43, 20.45
masters’ wages, 23.141
modifications, 23.7
ownership, 23.164–23.166
pledges, 23.106–23.107, 23.109
port authorities, detention and sale of ships and, 23.169 –23.170
possessory liens, 20.8, 20.13, 20.56, 20.59, 23.112 –23.116, 23.122–23.123
proprietary interests, 23.1–23.8, 23.160–23.180, 26.184, 26.186–26.187
Register of British Ships, 23.24–23.41, 23.74–23.86
registration, 23.47–23.48, 23.57–23.71
salvage, 2.52, 2.54, 2.57
security, 23.2–23.3
solicitor’s liens, 23.171–23.172, 23.180
statute, interests created by, 23.168–23.172
statutory liens, 19.27, 23.124, 23.146–23.159
in rem actions, 19.7, 19.13, 19.16
solicitors, 23.111
substance, 26.36
time, use for a specified period of, 23.44 –23.51
treaties and conventions, reference to other, 6.3 –6.10
Proceedings to which Brussels Convention and Regulation applies, 4.31–4.44
enforcement of judgments of non-contracting states, 4.39
exclusive jurisdiction clauses, 4.38
foreign element, cases with no, 4.33
national procedural rules, 4.41
sued, cases in which defendant is not, 4.34 –4.35
Proper law
contract, 26.56
floating, 13.32, 26.56
Property salvage
January 1, 1995, after, 2.62, 2.208
January 1, 1995, before, 2.58–2.6 1
docks, 2.60–2.61
harbours, 2.60–2.6 1
inland waters, 2.62
International Salvage Convention 1989, 2.62
maritime liens, 2.59, 2.62, 2.211
statutory claims for, 2.58–2.62
tidal waters, 2.60–2.61
Proprietary estoppel, 21.13
Proprietary interests, choice of law and, 26.162 –26.187
assertion of proprietary interests, 26.166–26.18 1, 26.186–26.187
assignment, 26.184
cargo, 26.162, 26.182
classification, 26.163, 26.168
contract, 26.164, 26.184
enforcement, 26.162
flag, law of the, 26.166
immovable property, 26.164, 26.184
list of maritime claims, 26.165
mortgages, 26.162, 26.166–26.168
movables, 26.184
national laws, 26.185
ownership, 26.166
priority, 26.184, 26.186–26.187
registration of ships, 26.166–26.168
Rome Convention 1980, 26.164, 26.184
sale contracts, 26.168
ship claims, 26.166–26.181
substance, 26.162
title, 26.164, 26.167
transfer, 26.162, 26.167, 26.183–26.187
Protection and Indemnity Clubs, guarantees provided by, 15.128
Protection of Trading Interests Act 1980
extraterritorial effect of US anti-trust laws, 25.26–25.27
foreign proceedings, control of, 25.26 –25.27
United States, 25.26–25.27
Protective or provisional measures
appeals, 28.97, 28.104
arrest, 14.72–14.79, 15.2–15.3
Arrest Convention 1952, 15.9, 15.12, 15.22–15.23, 15.36
English law, 15.40, 15.44, 15.62,
Brussels Convention 1968, 4.40, 4.42–4.43, 14.60–14.69
Brussels Regulation, 4.40, 4.42–4.43, 14.60–14.69
Civil Jurisdiction and Judgments Act 1982, 14.70–14.7 1
connecting link, 14.64
delay, 11.49–11.50
meaning, 14.61
national courts, 14.64–14.65
national laws, 14.63, 14.65, 14.70
priority, 14.67–14.69
procedure, 14.71
real connecting link, 4.41
recognition of judgments, 14.67, 28.78
seisin, 12.29–12.30
service out of the jurisdiction, 14.71
tripartite nature of maritime claims, 0.2 –0.3, 0.10
Provisional measures. See Protective or provisional measures
Public hearings, 0.17
Public policy
choice of law, 26.23, 26.68, 26.102, 26.103
enforcement of judgments, 28.47, 28.54–28.57
foreign arbitration awards, enforcement of, 13.30, 27.64, 27.66
foreign law, application of, 26.1, 26.7, 26.9, 26.28 –26.31
fraud, obtaining judgments by, 28.55–28.56
life salvage, 2.53
recognition of judgments, 28.47, 28.52, 28.54 –28.57
salvage, 2.49, 2.53
time limits, 26.34
Public registers, 5.25–5.27
companies, 5.26
mortgages, 5.27
ships, 5.26–5.27
Public/private distinction
Register of British Ships, 23.26–23.27, 23 .33–23.34, 23.40–23.41, 23.79, 23.90
Quasi-delict. See Matters relating to tort, delict or quasi -delict
Receivers
appointment of, 14.4, 14.18, 16.50, 20.8, 25.67
interim relief, 14.4, 14.18
wrecks, of, 2.104
Recognition of foreign judgments
appeals, 27.55
Civil Liability Convention, 24.143, 24.145
countries, courts in specified, 27.55
defence, 27.44
English judgment, as, 27.44
in rem judgments, 27.47
liens, 27.47
merger, 27.44
pilotage, 24.170
registration, 27.9
res judicata, 27.8
sale of ships, 27.47
Recognition of judgments. See also Enforcement and recognition of judgments of
other courts within the UK, Recognition of foreign judgments, Recognition of judgments
within the European judgments regime
IOPC Fund, 24.149
Recognition of judgments within the European judgments regime, 1.41, 3.46, 4.2 –
4.3, 4.5, 4.16, 28.3–28.5
appearance, default of, 28.52, 28.58–28.72
Athens Protocol, 5.13
Civil Jurisdiction and Judgments Acts, 1.48 –1.49
declarations, 28.78
domicile, 28.48, 28.53
grounds for non-recognition, 28.45–28.77
heard, right to be, 28.58–28.72
incidental issue, recognition as, 28.80, 28.82
irreconcilable judgments, 28.43, 28.52, 28.73 –28.77
adjudicating court, of the, 28.45–28.47
exclusive, 28.42
exorbitant, 28.48–28.5 1
national laws, 28.46A, 28.48, 28.53
non-contracting states, conventions with, 5.8
process, 28.78–28.96
provisional or protective measures, 28.78
public policy, 28.47, 28.52, 28.54–28.57
refusal of, 28.4–28.5, 28.43, 28.46–28.47, 28.54–28.77
stay of proceedings, 28.43, 28.81, 28.83
treaties and conventions, precedence of judgments within, 5.8, 28.26 –28.35
Register of British Ships
bills of sale, 23.26, 23.31, 23.39
demise charters, 23.24, 23.26, 23.34
detention, 23.25
divisions of, 23.24, 23.30
fishing vessels, 23.40
joint owners, 23.30
legal interests, 23.36–23.39
Merchant Shipping Act 1995, 23.24–23.41, 23.74–23.86, 23.90
mortgages, 23.38
overriding interests, 23.28
priority, 23.24–23.41, 74–23.86
provisional registration, 23.29
public law/private law provisions, 23.26 –23.27, 23.33–23.34, 23.40–23.41,
23.79, 23.90
rectification, 2.123, 23.32
registrability, 23.36–23.39
small ships, 23.40
termination, 23.32
title, 2.123, 23.24–23.41
transfer, 23.31, 23.36, 23.39–23.40
trusts, 23.30
Registration. See also Register of British Ships, Registration, priority and,
Registration of ships
arrest, 15.64
bills of sale, 23.2 1–23.22, 23.31
charges, 23.60–23.71
costs, 27.15, 27.23
foreign judgments, 27.9, 27.49, 27.52–27.55
UK, other courts in the, 27.9, 27.12–27.24, 28.86
UK, other parts of the, 27.9, 27.12–27.24, 28.86
equitable liens, 21.9, 21.10–21.11, 21.15
foreign arbitration awards, enforcement of, 27.64–27.67
foreign judgments, 15.64, 27.9, 27.49, 27.52 –27.55
jurisdiction, sources of, 1.21
liens, 17.26–17.27
equitable, 21.9, 21.10–21.11, 21.15
maritime, 17.27
Maritime Liens and Mortgages Conventions, 18.129 –18.130, 18.135–18.138,
18.143
notice, 27.23–27.24
priority, 23.56–23.71
public registers, 5 .25–5 .27
recognition of judgments of other courts in the UK, 27.9, 27.12 –27.24, 28.86
Registration, priority and, 1.21, 23.47–23.48
bills of sale, 23.57–23.59
charges, 23.60–23.71, 23.103
companies, 23.60–23.70
floating charges, notice of crystallisation of, 23.71
mortgages, 23.74–23.90, 23.125–23.130
overriding interests, 23.28
pledges, 23.106
title, 23.19–23.41
Registration of ships. See also Register of British Ships
choice of law, 26.12 1, 26.166–26.168
delivery up, 2.123
foreign ownership, 2.126
interested persons, 2.123
mortgages, 2.130, 23.74–23.90
title, 26.12 1
Regulations, 1.34, 3.11–3.12
Related causes of action. See Multiple proceedings
Release from arrest
alternative security, 15.7 arrest,
15.89, 15.91, 15.118–15.124
cautions, 15.2, 15.7, 15.118
consent, 15.118
delay, 15.119
discretion, 15.91, 15.118–15.119
English law, 15.118–15.121
multiple arrests, 15.118
requests for, 15.118
security, 15.14, 15.25
conditions, 15.120
Remedies, 25.7–25.65. See also Damages, Injunctions, Interim relief, Remedies, in
personam actions and, Remedies, in rem actions and, Specific performance
acts outside England, 25.10
delay, 11.47–11.50
equitable, 1.20
intervention, 25.10
merits, on the, 9.108
types of, 25.32–25.65
Remedies, in personam actions and, 9.108–9.109, 25.28–25.29, 25.31
arbitration agreements and awards, enforcement of, 25.45 –25.46
compensation orders, 25.48
contracts,
termination of, 25.44
damages, 25.62
declaratory orders, 25.49
extinguishments, 11.3, 11.12
injunctions, 25.47
money, payment of, 25.3 3–25.39
negative declarations, 25.50–25.5 1
proprietary relief, 25.40–25.4 1
tracing, 25.41
Remedies, in rem actions and, 25.28–25.3 1, 25.52–25.53
bail, 25.52
chattels, 25.52
damages, 25.62
in personam actions, 25.52–25.53, 25.59–25.62
judicial sale, 25.54–25.58
security, 25.52
Repairs
necessaries, 2.223
possessory liens, 2.223, 20.2, 20.7, 20.32
Repatriation expenses, 15.102
Repudiation, 25.44
Requisitioned ships, 18.55, 18.63–18.64, 18.66–18.67
Res judicata
damages, 25.35
finality, 25.1
Rescission, 25.44
Reservation of judgments, 23.17, 28.101
Reservation of title, 21.6, 23.64
Respondentia
bottomry, 2.23, 2.10 1
cargo claims, 2.23, 18.42
maritime liens, 2.10 1, 10.20, 18.42
salvage, 6.168
Restitution, choice of law and, 26.144–26.156
contract, 26.146, 26.148, 26.150–26.157
average bonds, 26.156–26.157
contract, 26.150–26.157
Rome Convention, 26.155–26.157
governing law, 26.147–26.149
nature of claims, 26.144–26.146
quasi-contract, 26.144
salvage, 26.149–26.150
terminology, 26.144
York-Antwerp Rules, 26.149, 26.153
Restoration of ships
Restrictions on jurisdiction, 12. 1–12.157
abuse of process, 12.111–12.112, 12.157
anti-suit injunctions, 12.7–12.8
Brussels Convention 1968, 12.1–12.24, 12.28–12.33
cause of action estoppel, 12.111–12.112
conflicts of jurisdiction, 12.5–12.6
courts, powers and duties of, 12.25–12.26
foreign court, consideration of the jurisdiction of, 12.26
foreign forum agreements, 12.55–12.87
foreign ships, 12.154–12.156
HNS Convention, 12.150
initial jurisdiction, 12.3
issue estoppel, 12.111–12.112
Lugano Convention, 12. 1–12.24, 12.28–12.30
merger of judgments, 12.112
multidefendants, 12.33–12.34
multiple proceedings, 12.3, 12.9–12.24, 12.33–12.5 1
nuclear activities, 12.148
pending actions, 12.6, 12.25, 12.28, 12.33
priority of other conventions, 12.5–12.6
Rhine Navigation Convention, 12.153
service of claim forms, 12.29, 12.33–12.34
trespass to foreign land, 12.15 1–12.152
Retention, right of
liens, 17.14–17.15
Maritime Liens and Mortgages Conventions, 18.139–18.140
possessory liens, 17.13, 20.1, 20.6, 20.8, 20.14, 20.39
Rhine Navigation Convention 1868
jurisdiction, 3.37, 6.67–6.68, 12.153
parties, 6.72
Tribunal for Rhine Navigation, 3.37, 6.69–6.71
Rivers, 2.68
Road transport. See CMR Convention
Rome Convention 1980, 26.18–26.19, 26.22, 26.53–26.56, 26.72
applicable law, 26.93–26.94, 26.116
choice of law, 26.18–26.19, 26.22, 26.164, 26.186
classification, 26.91
contracting out, 26.10 1
Contracts (Applicable Law) Act 1990, 26.53, 26.85–26.89
delay, 11.8
foreign law, application of, 26.30, 26.39
matters within the, 26.9 1–26.92
time limits, 26.35
Royal fishes, 2.135
Saisie conservatoire, 15.2
Sale. See Judicial or forced sale
Salvage. See also Life salvage, Property salvage
January 1, 1995, after, 2.212–2.215
January 1, 1995, before, 2.207–2.2 11
agreements, 2.46, 2.48, 2.196–2.200, 2.208
apportionment, 2.208
Arrest Convention, 6.168–6.169
best endeavours, 2.189
bottomry, 6.168, 23.144
cargo, 6.168–6.169, 18.43
collision, 6.168
damages, 2.209
delay, 11.35
domicile, 6.168–6.169
equipment, 2.214
flotsam, jetsam, lagan and wreck, 18.43
foreign inland waters, 2.51
freight, 6.169
high seas, extension beyond the, 2.49–2.5 1
in rem actions, 2.199, 2.207–2.215, 6.169
Lloyd’s Open Form, 2.196–2.197, 2.209, 26.159
maritime liens, 2.40, 2.43–2.62, 18.115, 23.136–23.139 loki
bottomry, 23.144
convention, 18.44
enforceability, 18.57, 18.63, 18.66–18.69
flotsam, jetsam, lagan, 18.43
life, 2.53–2.54, 2.57, 2.2 11
property, 2.59, 2.62, 2.2 11
remuneration, 6.168
ship’s apparel, 18.37
wreck, 18.38
Maritime Liens and Mortgages Conventions, 18.14 1
maritime possessory liens, 20.43, 20.44, 20.49
non-tidal waters, 2.49
public policy, 2.49
respondentia, 6.168
rewards, 2.209
salvors, definition of, 2.46
ships’ apparel, 18.37
subjects of, 2.46
success, need for, 2.46
Supreme Court Act 1981, 2.200, 2.212–2.215
time limits, extension of, 11.27
towage, 2.197–2.199, 2.216
tugs, use of, 2.197–2.199
unjust enrichment, 26.159–26.16 1
use or hire of ship, claims relating to, 2.196–2.200
voluntariness, 2.46
wreck, 18.38, 18.43
Salvage Convention 1989
apportionment, 26.160–26.161
environmental damage, 2.44
expenses, 2.44
implementation of, 2.44
life salvage, 2 .55–2 .57
property, meaning of, 18.44
property salvage, 2.62, 18.44
special compensation, 2.44, 24.42, 24.59
vessel, definition of, 2.44
voluntariness, 2.44
Same or related causes of action. See Multiple proceedings
Scotland. See also England, Scotland and Northern Ireland, jurisdiction as
between
tort, delict or quasi-delict, matters relating to, 6.160
Seaman’s wages
additional amounts, 2.85
attachment to ship, 2.78
bottomry, 23.140
definition of seamen, 2.86–2.87
definition of wages, 2.8 1–2.85
domicile, 6.129
employment contracts, 2.80, 2.84
foreign ships, 12.154–12.155
in rem actions, 2.78–2.79, 2.87
maritime liens, 2.43, 2.78–2.85, 2.225–2.226, 23.135, 23.138–23.141
enforceability, 18.57–18.59, 18.63, 18.70–18.72
extinction, 18.82, 18.86
master’s wages and, priority between, 23.14 1
master’s wages and, priority between, 23.14 1
mode of payment, 2.85
national insurance contributions, 2.82–2.83
pensions, 2.83, 2.225
priority, 23.141
service to the ship, 2.80, 2.83–2.84
severance pay, 2.83–2.84
study leave ashore, 2.84
third party claims, 2.226
welfare payments, 2.83
Seamen
Admiralty Marshal, powers during arrest of, 1 5.109
provisions for, 15.109
repatriation expenses, 15.102
Search orders, 14.16, 14.27
Security. See also Security interests, priority and, Types of security (eg Mortgages)
quince
appeals, 28.100, 28.104
arbitration,
arrest, 14.42–14.44, 14.74, 15.3–15.5, 15.42–15.51
Arrest Convention 1952, 6.17–6.18, 14.76–14.77, 15.14, 15.25, 15.38
Arrest Convention ], 6.22, 15.19–15.21
damages, 15.95
excessive security, 2.24
release, 15.14, 15.20–15.21, 15.25, 15.89, 15.120
warrants, 15.61
bottomry bonds, 2.98–2.100
charterparties, 22. 1–22.2, 22.6
Civil Liability Convention, 2.152, 24.140–24.141
enforcement conditional on, 28.104
equitable liens, 2 1.2–21.3, 21.9, 2.16
excessive, 2.24
judicial sale, 15.125–15.126, 25.26
limitation fund, 24.41, 24.73, 24.80, 24.112, 24.126
possessory liens, 20.16, 20.18, 20.20
priority, 23.2–23.3
procedure, 14.44
re-arrest, 15.20
stay of proceedings, 12.79, 15.85–15.94, 18.102
tripartite nature of maritime claims, 0.2, 0.10
Security for costs
appeals, 14.36
arbitration, 14.53
Brussels Convention, 14.81
case management, 14.35, 14.41
CMR, 6.55
conditions, 14.35–14.36, 14.40
discrimination, 14.38, 14.82, 28.93
domicile, 28.93
enforcement, 14.36–14.40, 14.82
fair trials, 14.38
fund for, availability of, 14.36
habitual residence, 28.93
national laws, 28.93
Northern Ireland, 14.40
residence, 14.38–14.39, 14.82
Scotland, 14.40
Security interests, priority and, 23.2–23.3, 23.52–23.159
charges, 23.52–23.55, 23.100–23.105
fixed charges, 23.55
liens, 23.52–23.54, 23.72, 23.110–23.159
pledges, 23.52–23.54, 23.106–23.109
registration, 23.56–23.7 1
Seisin
another court, 12.26
arrest, 12.30
Brussels Convention 1968, 4.14, 12.27 –12.34
Brussels Regulation, 4.15, 12.3 1–12.32
date of, 12.31
English law, 12.32
first seised, court that is, 4.15, 4.45, 12.27
multiple proceedings, 12.13, 12.20 –12.22, 12.46
formalities, 12.28
issue of claim forms, 12.32
jurisdiction, consideration of, 4.45
meaning, 12.27–12.30
multiple proceedings, 12.13, 12.20–12.22, 12.46
provisional matters, 12.29–12.30
service of claim forms, 12.29, 12.31–12.34
time limits, 12.31
Seizure
arrest, 15.144
Sequestration, 25.67, 25.68
Service. See also Acknowledgment of service,
Service aboard, Service of claims forms,
Service, in personam claims and
Admiralty Marshal, 15.57
appeals, 28.105
appearance, default of, 28.58–28.63, 28.66–28.69, 28.72
arrest, 15.57–15.61, 15.75
bail, 15.134
Denmark, 5.7
domicile, 5.78, 5.80
England, Scotland and Northern Ireland, jurisdiction as between, 7.7 –7.9, 9.103
Hague Convention on Service Abroad, 4.54, 6.82 –6.83, 6.85, 9.104, 28.19
particulars of claim, 9.35, 10.72
Service aboard, 3.2
Admiralty claims, 9.79
arbitration,
awards, enforcement of, 9.78, 9.79, 9.98
Athens Convention, 9.70
Brussels Convention 1968, 9.68, 9.70–9.7 1, 9.78
categories of claim, 9.79–9.92
choice of law, 26.16, 26.19
Civil Jurisdiction and Judgments Act 1982, 9.68, 9.9 1 –9.92
connecting factors, 9.8 1–9.84
contracts, 9.79, 9.87
corporations, 9.50–9.5 1
costs, 9.79
England as appropriate forum, 9.75
evidence, 9.82–9.83
freezing injunctions, 16.11A
good arguable case, 9.75, 9.77–9.78
avoiding service, 9.44–9.51
England, avoiding service in, 9.44–9.5 1
injunctions, 9.89–9.90
Inland Revenue claims, 9.79
interim relief, 9.71, 9.78, 9.79, 9.91–9.92, 14.52
limit of liability, 9.71, 24.87–24.90
limits on, 3.4
Lugano Convention, 9.68, 9.70, 9.78
necessary or proper party, meaning of, 9.86
permission, 9.68, 9.70–9.79, 13.23–13.24, 24.88
property within the jurisdiction, 9.79
reasonable prospect of success, 9.75
serious issue to be tried, 9.75, 9.77–9.78
Service Abroad of Judicial and Extra-Judicial Documents Regulation, 6.82 –6.85,
9.99–9.101, 9.103
Supreme Court Rules, 9.78
third parties, costs against, 9.79
time limits, 9.69
tort, 9.79, 9.85, 9.88
trusts, 9.79
Service Abroad of Judicial and Extra-Judicial Documents Regulation
central authority, establishment of, 6.84
consular or diplomatic channels, service through, 6.84, 9.103
Denmark, 9.99
evidence of service, 6.84
governmental authority, service through, 9.103
judicial authority, service through, 9.103
jurisdiction, 6 .82–6 .8 5
methods of service, 6.84
proof of service, 6.84
Service, contracts of, 24.60
Service of claims forms, 9.68–9.92
Brussels Convention 1968, 3.48, 3.50, 4.16
delay, 11.39
freight, 18.39
in personam actions, 3.2, 9.15–9.19, 9.27–9.33, 9.38, 9.42–9.53
in rem claims, 3.2, 10.61, 10.64–10.65, 10.68–10.74, 10.84
jurisdiction,
bases, 3.2–3.3
restrictions on, 12.29, 12.33–12.34
Limitation of Liability Convention 1976, 24.82 –24.83, 24.86
limits on jurisdiction based on, 3.4
seisin, 12.29, 12.31–12.34
substantive connection with England, 3.3–3.4
substituted service, 10.74
time limits, 10.68–10.71
Service, in personam claims and, 9.68–9.92
Admiralty and Commercial Registry, 9.21, 9.26, 9.53
agents, 9.42–9.45, 9.49
alternative methods of service, 9.22–9.24, 9.46
branches, 9.50
Civil Procedure Rules, 9.17–9.22, 9.28–9.34
claim forms, 3.2, 9.20–9.53
concurrent, 9.30–9.3 1, 9.33
validity of, 9.27–9.33, 9.38
commencement of proceedings, 9.17, 9.21
consular authority, service through, 9.103–9.104
contract, 9.22
date of service, 9.23, 9.49
deemed service, 9.25
defence, 9.54
dispensing with service, 9.22–9.26, 9.102
England, in, 9.17–9.19, 9.26, 9.42–9.5 1
fair hearings, 9.25
governmental authority, service through, 9.103 –9.104
guidance, 9.30
individuals, service on, 9.42–9.43
judicial authority, service through, 9.103 –9.104
methods of service, 9.22–9.26, 9.43, 9.45, 9.50, 9.10 1–9.102
out of the jurisdiction, service, 9.27, 9.33
avoiding, 9.44–9.51
England to avoid, service in, 9.44–9.51
presence, 9.18–9.19
retrospectivity, 9.24
solicitors, 9.43
substituted service, 9.22, 9.48
statements of truth, 9.21
Supreme Court Rules, 9.36–9.39
time limits, 9.21, 9.25, 9.27–9.39
extension of, 9.24, 9.32–9.39, 9.53
good reason for extension, 9.38
reasonable steps to serve, 9.32
service out of the jurisdiction, extension for, 9.33 –9.34
Settlements. See Judgments and settlements within the European judgments regime
Severance pay, 2.83–2.84
Shams, 10.44–10.45
Ship mortgages. See Mortgages
Shipowners. See Ownership
Ships. See also Construction of ships, claims
relating to, Damage by ships, claims relating to,
Damage to ships, claims relating to,
Government ships, Repairs, Sister ships, Use or
hire of ship, claims relating to
apparel, salvage and, 18.37
bunkers, arrest of, 18.33
dealing in, prohibition on, 14.23
direct connection, 2.194
dredgers, 18.31
fleets, 2.195
foreign, 12.154–12.156
forfeiture or condemnation of ships, 2.131–2.133
hovercraft, 18.30
meaning, 2.44, 18.30, 24.41
naming, 15.58
navigation,
meaning of, 18.32
vessels used in, 18.30–18.32
non-sea-going ships, 15.17
oil rigs and platform, 18.30, 18.32
small ships, 23.40
water, things that go upon, 18.30–18.36
Sister ships
Administration of Justice Act 1956, 10.51–10.54
arrest, 2.17, 15.55
Arrest Convention, 10.49–10.50
bottomry bonds, 2.23, 2.99
charters, 10.53–10.54
in rem actions, 2.138, 10.26, 10.49–10.56
institution of proceedings, 10.68
Small ships, registration of, 23.40
Solicitors’ liens
charging orders, 23.171, 23.178
costs, 23.111
creation of, 23.171
enforcement, 23.111
necessaries, 23.171
priority, 23.171–23.172, 23.180
Sources of Admiralty jurisdiction, 1.1–1.50
Admiralty Court, 1.16, 1.22–1.25
Civil Jurisdiction and Judgments Acts and orders, 1.47 –1.50
common law, 1.16–1.20
EC law 1.2, 3.11
EFTA, 1.2
equity, 1.16–1.20
registration requirements, 1.21
statutes, 1.26–1.46
Supreme Court Act 1981, 1.1–1.15, 1.50
Sovereign immunity
November 22 1978, before, 12.115–12.116
arbitration, submission to, 12.121
arrest, 15.76
commercial transactions, 12.122, 12.130–12.134
companies, 12.127
contracts performed in UK, 12.122
Crown proceedings, 12.134–12.146
customs duty, 12.128
death, 12.124
diplomatic immunity, 12.114
excise duty, 12.128
foreign governments, 12.113
general framework, 12.114–12.133
government ships, 15.76, 18.53
in rem actions, 12.13 1
injunctions, 12.119
intellectual property, 12.126
jurisdiction,
submission to, 12.120
maritime liens, 18.53, 18.67–18.68, 18.94
partnerships, 12.127
personal injury, 12.124
remedies, 12.119
sister ships, actions against, 12.13 1
State Immunity Act 1978, 12.117–12.129, 12.133
UK government, 12.134–12.146
unincorporated associations, 12.127
VAT, 12.128
Special jurisdiction
connecting factors, 6.12 1
domicile, 6.121
Specific performance, 1.20
contracts, enforcement of, 25.42, 25.44
damages, 25.65
discretion, 25.63
immovables, 5.19
sale of ships, contracts for, 25.42
Statements of truth, 9.21
States, judgments against, 27.39–27.40
Statute law
civil law, 1.29
codification, 1.30
consolidation, 1.30
judicial creativity, 1.26–1.29
jurisdiction, 1.30–1.46, 2.19
role of, 1.26
Statutory liens, 19.1–19.38
Admiralty jurisdiction, 19.22–19.24, 19.33, 19.38
enforcement, 18.6
in rem rights, 19.1, 19.5, 19.9 19.14
maritime liens, comparison with, 18.13 –18.27
origins of, 19.2–19.4
arrest, 19.10, 19.18–19.19, 19.25, 19.38
assignment of freight, 23.152–23.153
bail, 19.38
beneficial ownership, 23.156
bunkers, 19.34
cargo, 19.33, 19.35, 19.38, 23.150
characteristics, 17.15
charges, 23.147–23.157
claim forms, issue of, 19.31, 19.37
condemnation, 19.29–19.31
creation of, 19.3 1–19.32
damage claims, 2.63, 19.33
death, 19.33
delay, 11.50
demise charters, 19.28, 19.38
droits of Admiralty, 19.29–19.31
enforceability, 19.13–19.16, 19.25–19.30
forfeiture, condemnation or possession, 19.20 –19.2 1
in rem actions, 19.13–19.16, 19.38, 23.157
equitable charges, 23.154–23.157
equitable liens, 23.154–23.157
execution creditors, 23.175
forfeiture, 19.20–19.21, 19.29–19.31
freight, 19.33, 19.35, 19.38, 23.151–23.153
in personam claims, 19.26–19.32, 23.147–23.149, 23.157
characteristics of claims, 19.17
legal consequences of, 19.38
nature of, 19.2, 19.13
past jurisdiction, 19.22
solicitors, 23.111
in rem actions, 19. 1–19.34, 23.147–23.149, 23.153–23.156
attachment, 18.1
enforceability, 19.13–19.16, 19.38, 23.157
enforcement, 18.6
maritime liens, 2.102, 17.36–17.38, 17.44, 17.52, 17.54
termination, 19.37
judicial sale, 19.18–19.19, 19.25–19.26, 19.28, 19.38
maritime liens, 19.23, 19.25, 19.27, 19.37
Admiralty jurisdiction, 17.17–17.19, 18.13–18.27, 19.3
analogy, extensions by, 2.102
arrest, 2.37
in rem actions, 18.5, 19.9–19.11
judicial sale, 2.37
priority, 23.121
more than one lien, 17.22
mortgages, 19.16–19.18, 19.27, 19.29, 23.147–23.154
cargo, 23.150
freight, 23.15 1–23.153
priority, 23.91, 23.126, 23.129, 23.131–23.132
ships, 23.147–23.149
nature of, 19.2–19.6
origins and early development, 19.2 –19.4
ownership and possession claims, 19.16, 19.19, 19.26, 19.28, 19.38, 23.154 –
23. 157
past jurisdiction, 19.22–19.24
personal injuries, 2.70, 19.33
priority, 19.27, 23.124, 23.146–23.159
in rem actions, 19.7, 19.13, 19.16
solicitors, 23.111
proprietary interests, 19.12–19.13, 19.15, 19.18, 19.23–19.24
retention, right of, 17.15
salvage, 2.45, 19.33
secured creditors, 19.31
sister ships, 19.33 solicitors, 23.111 substance and procedure,
19.8–19.13, 19.16–19.21, 19.25–19.26
Supreme Court Act 1981, 18.1, 19.1, 19.5–19.7, 19.10, 19.15–19.24, 19.31–19.35
termination, 19.37, 19.38
Stay of proceedings
alternative security, 15.129, 18.102
anti-suit injunctions, 25.18, 25.25
appeals, 28.81, 28.83, 28.98–28.104
discretion, 28.100
enforcement of judgments, refusal of, 4.51
free standing, 28.99–28.101
further appeals, 28.116
awards, 13.50, 25.45
time limits, 13.53
arrest, 15.84–15.94
jurisdiction, 13.21
arrest, 12.85–12.87
English law, 15.44, 15.84–15.94
release from, 15.89, 15.118
security for, 15.49, 15.51
bankruptcy, 17.34
Civil Jurisdiction and Judgments Act 1982, 15.129, 18.100
delay, 11.9–11.11
enforcement of judgments,
appeals, 4.51–4.52
refusal of, 4.51
UK, in courts within the, 27.19
English law, 11.9–11.11, 12.75–12.77
foreign law, relevance of, 12.80–12.82
forum conveniens, 12.93–12.102, 12.107–12.108
forum non conveniens, 12.84, 18.100, 24.100–24.106
Hazardous and Noxious Substances Convention, 24.157–24.158
jurisdiction,
agreements, 12.57, 12.75–12.84, 18.100
consideration of, 4.5 1–4.54
restrictions on, 12.25, 12.54
limitation of liability, 24.14, 24.50, 24.120, 24.123
jurisdiction, exercise of, 24.9 1–24.93
liquidation, 15.49
multiple proceedings, 4.52, 12.22, 12.35, 12.46, 24.113 –24.115
notice, 4.51
pilotage, 24.169
procedural safeguards, 4.54
recognition of judgments, 4.52, 27.19, 28.43, 28.81, 28.83
security, 12.79, 18.102
service, 3.4, 4.54
time limits, 12.83–12.84, 13.53
Stoppage in transit, insolvency and, 23.114
Striking out
delay, 11.2
vexatious and oppressive claims, 4.44
want of prosecution, 11.45
Submission to jurisdiction
bail, 15.132, 15.135–15.136
court, through the, 9.107
in personam actions, 9.56–9.60, 9.105–9.107
interlocutory remedy jurisdiction, 9.106
merits, jurisdiction on the, 9.105–9.106
procedural steps, 9.105–9.106
Subrogation, 18.87, 18.142, 18.145, 26.99
Substitution of parties, 11.32–11.34
Succession, 10.42
Summary judgments, arbitration and, 13.55–13.56
Supreme Court Act 1981. See also Sweeping up clause
Administration of Justice Act 1981, 2.13 –2.21
Admiralty Court, 2.7–2.8
Admiralty framework of, 1.3–1.13
arrest, 15.42, 15.45, 15.55, 15.65, 15.75
Arrest Convention 1952 0.27
warrants, 15.97
choice of law, 26.22, 26.24
Civil Procedure Rules. 0.33
collisions, 2.245, 3.31, 15.26
commencement of, jurisdiction immediately before the, 2.13 –2.14
court structure, 1.15
Crown proceedings, 12.140, 12.142, 12.144
damage to ships, claims relating to, 2.15, 2.139
detention, 15.143
foreign connections, application of framework despite, 2.9 –2.11
future, jurisdiction looking to the, 2.25
heads of jurisdiction, 2.4–2.25
in personam claims, 1.3, 1.6–1.9, 1.50, 2.240–2.247, 9.1, 9.9
in rem claims, 1.3, 1.6, 1.10–1.13, 1.50, 10.1–10.61
enforcement of foreign judgments 2.22
maritime liens, 17.45–17.5 1
interim relief, 14.1, 14.12, 14.15, 14.18
jurisdiction,
past, based on the, 2.13–2.24
sources of, 1.1–1.15, 1.50
list of claims, 1.3, 1.4, 1.31, 2.4
loss of life, 2.169–2.170, 2.2 13
maritime liens, 1.3, 1.5, 1.50, 2.6, 2.34–2.35, 10.22, 18.28
mortgages, 2.127
not referred to in, jurisdiction, 2.22–2.24
non-statutory jurisdiction, 2.20
other than the SCA 1981, meaning of, 2.26–2.29
past, jurisdiction looking to the, 2.13–2.24
remedies, 25.28
respondentia, 2.23
Rhine Navigation Convention 1868, 3.37, 12.153
salvage, 2.200, 2.212–2.215
ships, meaning of, 18.30
sister ships, 10.54
statute, jurisdiction conferred by, 2.19
statutory liens, 18.1, 19.1, 19.5–19.7, 19.10, 19.15–19.24, 19.31– 19.35
Supreme Court of Judicature, 1.14
Sweeping up clause, 2.13–2.14, 2.22
Administration of Justice Act 1956, 2.13, 2.18–2.24
goods, loss or damage to, 2.174–2.175
in rem actions, 10.2,10.5, 17.49
jurisdiction based on the past, 2.13–2.14
Tenancies, 5.20
Termination. See also Maritime liens, extinction of
arrest, 15.118–15.124
contracts, 25.44
repudiation, recognition of, 25.44
rescission, 25.44
Third parties
appeals, 28.115
arrest, 10.80
attachment, 6.193
bills of sale, 23.59
charterparties, liens and, 22.17–22.20
delay, 11.32
domicile, 6.193–6.196
equitable liens, 21.14–21.15
freezing injunctions, 16.17, 16.48, 16.54 –16.58, 16.60
in rem actions, 10.80–10.8 1, 17.60–17.6 1
insurance contracts, 5.58–5.59
intervention, 10.81
jurisdiction agreements, 5.5 8–5.62
laches, 11.37
liens, 17.3, 17.14
equitable, 21.14–21.15
maritime, 17.60–17.61
multi-parties or actions, allocation of jurisdiction and, 6.187, 6.193 –6.196
priority, 23.44
service, 9.79
Tidal waters, salvage in, 2.60–2.6 1
Time limits. See also Arbitration, time limits and, Delay in suit, time limits and
acknowledgment of service, 9.52, 10.77
amendments, 9.41, 10.79
appeals, 28.98, 28.105
collisions, 11.25
Contracts (Applicable Law) Act 1990, 26.35
extension of,
collisions, 11.25
salvage, 11.27
service, 9.24, 9.32–9.39, 9.53
foreign law, application of, 26.34–26.35
hardship, 26.34
procedure, 26.34
salvage, 11.27
seisin, 12.31
service, 9.21, 9.25, 9.27–9.39, 9.69
extension, 9.24, 9.32–9.39, 9.53
reasonable steps to serve, 9.32
service out of the jurisdiction, extension for, 9.33 –9.34
substance, 26.34
Title. See also Title, priority and
foreign ships, 12.156
immovables, 5.21
ship register, rectification of, 2.123
wrecks 2.136–2.137
Title, priority and, 23.15–23.43
bills of sale, registration of, 23.21–23.22, 23.31
British Ships, Register of, 23.24–23.4 1
cargo, sale of, 23.42
factors, 23.42
first in time modifications, 23.19–23.43
Merchant Shipping Act 1995, registration under, 23.24 –23.41
overriding interests, registration and, 23.28
registration, 23.19–23.41
sale of goods, 23.42
trust, creation of beneficial title through, 23.16
Tonnage, 24.35, 24.55, 24.65
Tort. See Tort, choice of law and, Matters relating to tort, delict or quasi-delict
Tort, choice of law and, 26.52, 26.119–26.143
collision, regulations on, 26.141–26.142
double actionability rule, 26.131–26.134
England, in, 26.120, 26.135, 26.138
high seas, committed on the, 26.121–26.122, 26.137–26.143
mandatory rules, 26.136
more than one ship, acts on, 26.122, 26.137
one ship, acts on board, 26.121
outside England, torts committed, 26.119, 26.123 –26.132, 26.138
Private International Law (Miscellaneous Provisions) Act 1995, 26.119, 26.133,
26.136–26.138
procedure, 26.128
reform, 26.133–26.136
registration of ships, 26.121
service, 9.79, 9.85, 9.88
substance, 26.119
territorial waters, 26.139
treaties and conventions, 26.139–26.143
Tort, delict or quasi-delict. See Matters relating to tort, delict or quasi-delict
Towage
meaning, 2.2 16
salvage, 2.216
tugs, 2.197–2.199
Tracing, 21.16, 25.41
Transferability, 21.17. See also Maritime liens, transferability of
Transit, right of, 6.74
Treaties and conventions, 1.1, 1.32, 1.37. See also Particular conventions (eg
Arrest Convention 1952), Treaties and convent ions, reference to other
allocation of jurisdiction in initial proceedings, 6.2 –6.85
bilateral, 1.38
conflict of, 3.5
direct enactment of, 3.19–3.27
EC law, 3.11–3.13, 3.17–3.18
enforcement of judgments, 1.38, 5.8, 28.26–28.35
English law, reflected in, 3.28–3.40, 10.62–10.66
European Judgments Regime, applicability of, 5.8, 5.15
in rem actions, 3.7
incorporation or enactment into English law, 3.8, 3.19 –3.27
jurisdiction bases, 3.5–3.10
multilateral, 1.38
orders in council, implementing, 3.8
overlapping, 3.6
priority, 5.15, 28.26–28.35
recognition of judgments, 5.8, 28.26–28.35
regulations implementing, 3.8
statute law, 1.32
statutory instruments implementing, 3.8
tort, 26.139–26.143
types of, 3.9–3.10
United Kingdom, as not being party to, 3.40
Treaties and conventions, reference to other, 6.2–6.10
Brussels Regulations, 6.2–6.10
domicile, 6.9
English law, 6.7
mandatory application of substantive rules, 6.9
priority of other, 6.3–6.10
protective or provisional matters, 6.8
service, 6.10
United Kingdom, 6.7, 6.10
Trespass
collisions, 12.151
damages, 12.151
foreign land, to, 12.15 1–12.152
UK, disputes within the, 12.152
Tribunals
awards, enforcement and recognition of, 27.12 –27.13
Tripartite nature of maritime claims, 0.1–0.7
civil code systems, 0.3
claims, distinguished from other 0.1
in personam claims, 0.5–0.7
interim or provisional remedy aspect, 0.2
jurisdictional aspects, 0.2, 0.10
Maritime Code, 0.3
preferred creditors, 0.2
procedural rules, 0.4
provisional remedy aspect, 0.2–0.3, 0.10
security aspect, 0.2, 0.10
statute rules, 0.4
Trusts
beneficial title, 23.16
closest and most real connection, 5.110
connecting factors, 5.110, 6.123, 6.179–6.180
domicile, 4.19, 5.110, 5.113, 6.123, 6.179 –6.180
service, 9.79
shipowners, 6.180
Tugs, 2.197–2.199
UNCITRAL Model Law on Arbitration, 13.4–13.8
Arbitration Act 1996, 13.5–13.8
English law, 13.7
party autonomy, 13.6, 13.8
Undertakings. See also Guarantees or letters of undertakings
Admiralty Marshal, fees and expenses of, 15.99
alternative security, arrest and, 15.6, 15.139 –15.141
arrest, 15.1, 15.54, 15.56, 15.61, 15.95
damages, 15.1, 15.61, 15.95, 15.128–15.129, 16.29–16.48
freezing injunctions, 14.42, 14.83, 16.29–16.48, 16.60
interim relief, 14.13, 14.34, 14.42–14.44
procedure, 14.44
Unincorporated associations, 12.127
United Nations Law of the Sea Convention. See
Law of the Sea Convention 1982
United States
extraterritorial application of the antitrust laws, 25.26 –25.27, 27.57–27.58
limitation of liability, 24.32, 24.118–24.119, 24.121
priority, 23.36
tort, 26.125
Unjust enrichment, choice of law and 26.158–26.16 1
contract, 26.158–26.159
domicile, 6.124
general average, 26.150–26.152, 26.158
salvage, 26.159–26.161
Use or hire of ship, claims relating to, 2.178–2.179, 2.192–2.200
arbitration awards, 2.20 1–2.206
in rem actions, 2.178–2.179, 2.192–2.200
salvage, 2.196–2.200
scope, 2.192
ship, identification of, 2.194–2.195
VAT, 12.128
Veil, piercing the corporate, 10.44–10.46
Vexatious and oppressive proceedings
anti-suit injunctions, 4.44, 25.18–25.19
striking out, 4.44
Vienna Nuclear Damage Convention, 3.40
parties, 6.38–6.39
Wages. See Masters’ wages, Seaman’s wages
Want of prosecution, 11.42–11.46
inordinate delay, 11.43
striking out, 11.45
Warrants of arrest, 12.84–12.85, 14.31, 15.56–15.61
acknowledgement of service, 15.58 –15.60
Admiralty Marshal,
fees and expenses, 15.56, 15.97
service by, 15.57
applications, 15.56, 15.97
cautions, 15.98, 15.112
contents, 15.97
declarations, 15.97–15.98
freight, 15.98, 18.39
further service, prohibition on, 15.59
in personam claims, 15.56, 15.59, 15.97
in rem claims, 15.56–15.6 1
issue of, 15.56
jurisdiction, 15.56–15.57, 15.60
naming of different ships, 15.58
procedure, 15.97–15.98
security, 15.61
service of, 15.57–15.6 1
statements of truth, 15.97
undertakings, 15.56
Welfare payments, 2.83
Winding up or liquidation
arrest, 15.47, 15.49
compulsory, 18.113
court orders, 17.29
liens, 17.29–17.30
petitions, 17.29
possessory liens, 17.30, 20.10–20.11, 20.15–20.17
voluntary, 18.113
Wrecks
coastguard, remuneration of, 2.106–2.109
land adjoining, damage to, 2.108
maritime liens, 2.104, 2.106–2.109, 18.38
owners, 2.106
receivers, recovery of fees and expenses by, 2.104
removal of, 24.42
salvage, 18.38, 18.43
territorial waters, 2.137
title, 2.136–2.137
Wrongful arrest
cautions against arrest, 15.117
damages, 15.117
English law, 15.117
malice, 15.117
York-Antwerp Rules, 2.236, 26.149, 26.153

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4

by Patrick Griggs and Richard Williams

by Colin de la Rue and Charles B. Anderson

by Graeme Bowtle and Kevin McGuinness

with Nigel P. Ready

by Clare Ambrose and Karen Maxwell

by Iain Goldrein, Q.C., and Paul Turner

by Michael Wilford, Terence Coghlin and John D. Kimball

by Patrick Griggs, Richard Williams and Jeremy Farr

Emeritus Professor of Law, L.L.D., M.A., B.C.L.

(a trading division of T&F Informa (UK) Ltd)

37—41 Mortimer Street

London W1T 3JH

No. 1 Grange Road

#08—02 Orchard Building

Interactive Sciences Ltd, Gloucester

PART I. JURISDICTION AND MODES OF ENFORCEABILITY

PART II. JURISDICTION OF ENGLISH COURTS AND ARBITRAL

PART III. INTERIM RELIEF

PART IV. SECURITY ON THE MERITS —THE LIEN CONCEPT

Detailed Table of Contents

INTRODUCTION. MARITIME CLAIMS AND THEIR CONSEQUENCES

PART I. JURISDICTION AND MODES OF ENFORCEABILITY

CHAPTER 1. SOURCES OF ADMIRALTY JURISDICTION

1. The Admiralty framework of the Supreme Court Act 1981

1. Heads of jurisdiction—the framework of the Supreme Court Act 1981 Section

PART II. JURISDICTION OF ENGLISH COURTS AND ARBITRAL

CHAPTER 3. JURISDICTION BASES FOR ENFORCEMENT OF

1. Jurisdiction to decide substantive jurisdiction

CHAPTER 4. THE JURISDICTION AND JUDGMENT REGULATION AND

1. The general pattern The Regulation and Convention on Jurisdiction and

CHAPTER 5. FORUM LAW OR COMMUNITY REGIME?

1. The basic dichotomy Applicable regime or national law?

CHAPTER 6. REGULATION 44/200 1 AND THE BRUSSELS

1. Reference to another Convention The scope and effect of the reference

CHAPTER 7. JURISDICTION AS BETWEEN ENGLAND, SCOTLAND

1. Regime allocation to a place in the United Kingdom

CHAPTER 8. THE LUGANO CONVENTION — DIVERGENCES

1. Applicability of Article 57—priority of other conventions

CHAPTER 9. ENFORCEMENT OF MARITIME CLAIMS BY AN ACTION

1. The claims for which an action “in personam” is available

CHAPTER 10. ENFORCEMENT OF MAR ITIME CLAIMS BY AN

1. Availability of the action “in rem” Admiralty claims excluded from “ in

CHAPTER 11. DELAY IN SUIT

CHAPTER 12. RESTRICTIONS ON JURISDICTION

1. The Regulations and Brussels and Lugano Conventions—“multiple

1. English law and international agreements The UNCITRAL model law—

PART III. INTERIM RELIEF

CHAPTER 14. NATURE AND BASIS OF INTERIM RELIEF

1. Types of relief and procedure

CHAPTER 15. ARREST AND ALTERNATIVE SECURITY

1. Introduction The three functions of arrest Alternative security

CHAPTER 16. THE “FREEZING” INJUNCTION

1. Nature and purpose

PART IV. SECURITY ON THE MERITS—THE LIEN CONCEPT

CHAPTER 17. NATURE AND DEVELOPMENT OF LIENS

CHAPTER 18. MARITIME LIENS

1. Claims to which a maritime lien may attach