"Stolt Kestral" (Owners of the Vessel) v "Niyazi S" (Owners of the Vessel)

Under Merchant Shipping Act 1995, the statutory limitation period applies separately to in rem and in personam proceedings where separate claim forms are required. The mandatory extension for lack of a reasonable opportunity to arrest is confined to proceedings in rem, because arrest is irrelevant to an in personam claim.

The reasonable-opportunity question is objective but fact-sensitive. It is not an abstract assumption that immediate legal advice and arrest instructions would have been given. The mandatory extension can apply to sister-ship proceedings where there was no reasonable opportunity to arrest either the wrongdoing ship or a relevant sister ship.

The applications arose from a 2010 collision between the vessels Stolt Kestral and Niyazi S. The claimant had issued in rem proceedings within two years, but later issued separate in personam proceedings and sought to add sister ships as defendants.

The defendant challenged earlier extensions of time and sought a stay of the in personam claim as time-barred. The issues were whether extensions were required or available for the in rem claim, the in personam claim and the joinder of sister ships.

1. In rem proceedings. The court held that there had been no reasonable opportunity to arrest the vessel during the limited period after the collision. The test under section 190(6) of the Merchant Shipping Act 1995 is objective but fact-sensitive. Relevant circumstances included the need for investigation, preparation of arrest papers, assessment of damage, the vessel’s movements, the short period at anchorage and the practical safety difficulties of arresting a vessel at anchor. A mandatory extension was therefore required. Alternatively, a discretionary extension would have been granted under section 190(5).
2. The permission to serve the in rem claim form out of the jurisdiction was set aside. Alternative service under PD61 para 3.6(7) was unavailable because the vessel was not within the jurisdiction.
3. In personam proceedings. The two-year limit applies to the proceedings actually being brought. In rem and in personam proceedings are distinct proceedings requiring separate claim forms. The issue of limitation could not be avoided by treating the in rem proceedings as effectively proceedings against the owner.
4. Section 190(6) applies only to in rem proceedings. Its purpose is to address the absence of a reasonable opportunity to arrest the ship. It cannot justify an extension for an in personam claim, which is commenced by service on the person rather than arrest of the res.
5. The claimant’s failure to issue an in personam claim form resulted from a culpable procedural mistake. It did not constitute good reason under the first stage of the discretionary test in The Al Tabith. The discretionary extension was therefore refused, although the court indicated that it would probably have exercised the discretion in the claimant’s favour if good reason had been shown.
6. Sister ships. An extension was required for proceedings against sister ships. Section 190(6) was capable of applying where there had been no reasonable opportunity to arrest either the wrongdoing vessel or a sister ship. Since that condition was satisfied, the mandatory extension and joinder of the sister ships were upheld.

This was a first-instance determination of Applications 3 and 4. Earlier orders extending the in rem claim and permitting amendment had been made by Eder J and Flaux J, but the present court reconsidered the relevant issues.