XCHRX SHANGHAI SHIPYARD, PUXI BRANCH v. THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP OR VESSEL "DRAGON SUPREME"

[The judge has given permission for this judgment, though handed down in Chambers, to be circulated and reported.]

Headnote

[The issue of a warrant for the arrest of a ship is a discretionary remedy. Moreover, leave to issue a warrant cannot be granted unless the statutory requirements for its issue have been satisfied. Those requirements include the issue of the writ and the filing of the affidavit in support before the issue of the warrant. Consideration should be given to the amendment of the Rules of the High Court to include provisions similar to those contained in Ord. 6 r. 7A of the English Rules of the Supreme Court.]

1997 A.J. No. 341

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMIRALTY JURISDICTION

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J U D G M E N T

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Introduction

1. At 12:45 p.m. on Saturday 1st November, an application was made to me as the duty judge. It was an application for leave to issue a warrant for the arrest of a ship which was due to arrive in Hong Kong shortly. I refused the application. Since the reason for doing so involved an important point of practice, I have decided to reduce my reasons for doing so into writing.

The Discretionary Nature of the Remedy

2. It is widely though that the issue of a warrant of arrest is not a discretionary remedy. If the statutory requirements set out in Ord. 75 r. 5 of the Rules of the High Court are satisfied, the Plaintiff is entitled to issue the warrant. That is what appears in the commentary on Ord. 75 r. 5 in the Supreme Court Practice 1997, Vol. 1, p.1315. The authority cited is "The Varna" [1993] 2 Lloyd's Rep. 253. However, "The Varna" is not applicable in Hong Kong. It was decided on amendments to Ord. 75 r. 5 of the English Rules of the Supreme Court. Those amendments were not incorporated into the Rules of the High Court of Hong Kong.

3. In fact, the issue of a warrant is discretionary. That was not in dispute in "The Amigo" [1991] 2 HKC 491 (see p.494G), no doubt because that was what had been held in earlier English cases which had been decided before the amendments to the English Rules of the Supreme Court. Thus, in "The Vasso" [1984] 1 Lloyd's Rep. 235, it had been held that the issue of the warrant was discretionary, though it would seldom be appropriate for the issue of a warrant to be refused where the statutory requirements had been satisfied: see "The Vanessa Ann" [1985] 1 Lloyd's Rep. 549 at p.551.

The Statutory Requirements

4. In the present case, I would have exercised my discretion to give leave for the warrant to issue if the statutory requirements had been met. However, I took the view that they had not been met. At the time of the application before me, the writ had not been issued, and the affidavit in support had not been filed. As it was, the writ could not be issued, and the affidavit could not be filed, until the following Monday. That was because the Registry had closed at noon. For their part, the Plaintiff's solicitors were prepared to undertake to issue the writ and file the affidavit as soon as the Registry opened on Monday.

5. Ord. 75 r. 5(1) provides:

"After a writ has been issued in an action in rem a warrant ... for the arrest of the property against which the action ... is brought may, subject to the provisions of this rule, be issued at the instance of the plaintiff ..."

Thus, it is only after the writ has been issued that a warrant of arrest may be issued. That is, no doubt, a consequence of the unique character of an action in rem. The position in relation to the affidavit in support is even clearer. Ord. 75 r. 5(4) provides:

"A warrant of arrest shall not be issued until the party applying for it has filed an affidavit requesting issue of the warrant together with an affidavit made by him or his agent containing the particulars required by paragraph (8) so, however, that the Court may, if it thinks fit, allow the warrant to issue notwithstanding that the affidavit does not contain all those particulars."

That expressly prohibits the issue of the warrant of arrest until the affidavit has been filed. These provisions mean that the statutory requirements had not been satisfied at the time of the application for leave to issue the warrant of arrest was made to me.

The English Solution

6. These provisions admittedly leave a gap in the Court's armoury. Vessels may not be in Hong Kong waters for very long. If the writ has not been issued, and the affidavit in support has not been filed, by the time the Registry closes, the vessel cannot be arrested until the Registry reopens. The problem has been met by the English Rules of the Supreme Court. They were amended in 1990 to include Ord. 6 r. 7A which established, inter alia, a procedure whereby a writ to be issued out of the Admiralty Registry may be issued even when the Registry is closed. In my opinion, consideration should immediately be given to amending the Rules of the High Court to include a provision which similarly permits writs for actions in rem within the court's Admiralty jurisdiction to be deemed to be issued even when the Registry is closed.