11 May 2021 by and Dispute Resolution Alert

Not a pretty sight: Writ of summons and warrants of arrest

The arrest of ships is regulated in terms of the provisions of the Admiralty Jurisdiction Regulation Act 105 of 1983 (AJRA), as read with the Admiralty Rules. The arrests are affected through an action in rem (against the ship or its content) or an action in personam (against the owner of the ship). A claimant has an option to elect to pursue their claim against the guilty ship or an associated ship.

In MT Pretty Scene: Galsworthy Ltd v Pretty Scene Shipping S.A and Another (Case No 684/19) [2021] ZASCA 38, the Supreme Court of Appeal (SCA) had to decide, amongst other issues, whether an arrest could be set aside if the underlying writ of summons was defective. In this article, we discuss the findings of the SCA regarding the validity of the summons and the ensuing arrest and whether the second respondent was an associated ship for purposes of the arrest.

The appellant, Garlsworthy Ltd, had successfully instituted arbitration proceedings against Parakou Shipping PTE Ltd (Parakou) for repudiating a charterparty. Garlsworthy had attempted to enforce the arbitration award through an action in rem against eight associated ships including the second respondent, the MT Pretty Scene (vessel).

The first respondent, as owner of the vessel, successfully set aside the first and second arrests of the vessel and was further granted an order in their favour for security for costs of the wrongful arrest in the Court a quo and the full bench of the KwaZulu-Natal Division of the High Court (courts).

The validity of the summons

The first issue that the SCA had to address was the effect of the issue of a summons that had been held by the courts to be non-compliant with the judgment in the case of The Galaecia: Vidal Armadores SA v Thalass Export Co Ltd (Galaecia) and the Practice Directives of the KwaZulu-Natal Division of the High Court (Directives). In Galaecia, the court had drawn adverse comments against a writ of summons for lacking particularity and being non-compliant with the provisions of Admiralty Rule 2(1)(b).

The SCA advanced that the first respondent was obliged to prove the invalidity of the order directing the registrar to issue the warrant of arrest. The SCA opined that the defect in the summons had to invalidate both the order to issue the warrant of arrest and the warrant of arrest itself.

The court distinguished the present case and the judgment in the case of Galaecia and held that the courts unduly relied on the judgment in Galaecia. The SCA opined that a deficiency in a summons did not affect the validity of an arrest.

The SCA held further that the approach followed by the courts in ascertaining the level of detail to be included in the summons demanded more than what was required by the Directives, which had resulted in the summons being approached by the courts on an unnecessarily stringent basis.

Admiralty rule 2(1)(b)

The SCA emphasised that the wording of the provisions of Admiralty Rule 2(1)(b) only require a clear and concise statement on the nature of the claim to be stated in the summons.

After equating the summons to the provisions of the AJRA and the Admiralty Rules, the SCA held that the summons was valid and should not have been set aside.

Association

The SCA advanced that an important aspect of the deemed ownership provisions of section 3(7)(c) of the Admiralty Rules was to place the charterer who is liable for a claim in the same position as the owner.

The second respondent was held to be an associated ship for purposes of a claim arising in respect of the leased ship. The SCA held that the arrest should not have been set aside by the courts

As noted by the SCA, it is important for a practitioner drafting a writs of summons in a maritime claim to draft it in simple terms so as to avoid “excessive and unnecessary prolixity” which have the potential to prolong the resolution of disputes.

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