Stolt Kestrel BV v Sener Petrol Denizcilik Ticaret AS

In collision claims, an action in rem against a vessel and an action in personam against the vessel owner are separate proceedings. A claim form naming the owner on an in rem claim form does not commence personal proceedings. The mandatory extension of time available where there has been no reasonable opportunity to arrest the vessel applies only to in rem proceedings. For a discretionary extension under section 190(5) of the Merchant Shipping Act 1995, the claimant must first show a good reason for failing to commence proceedings in time. Only then does the court consider the wider discretionary factors, including hardship and prejudice. Mere mistake or culpable carelessness is insufficient. Alternative service of an in rem claim form is available only while the res is within the jurisdiction.

The court heard an interlocutory appeal in two related Admiralty actions concerning the collision between the Niyazi S and the Stolt Kestrel, and an application for permission to appeal in a third collision action concerning the Odyssée and the SB Seaguard.

In the Stolt Kestrel proceedings, Hamblen J granted mandatory extensions for the in rem proceedings but held that the in personam claim against Sener was out of time and that a discretionary extension was not justified. He also set aside permission to serve the in rem claim form out of the jurisdiction. The claimant appealed.

In the Odyssée proceedings, the Admiralty Registrar refused an application under section 190(5) of the Merchant Shipping Act 1995 to extend time. The central issues were the nature of the statutory time bar, the distinction between in rem and in personam proceedings, and the correct approach to applications for extensions of time.

1. Stolt Kestrel appeal dismissed. Permission to appeal in the Odyssée proceedings was refused.
2. An in rem claim and an in personam claim are distinct proceedings. Under Practice Direction 61, separate claim forms are required. Naming the owner in an in rem claim form does not commence in personam proceedings against that owner. An action in rem proceeds against the res and does not create personal liability unless a person liable in personam acknowledges service and defends the action.
3. Section 190(3) of the Merchant Shipping Act 1995 bars the remedy while leaving the underlying claim in existence. The relevant question is whether the particular proceedings being brought were commenced within time. Timely in rem proceedings, including later-joined sister-ship proceedings, do not protect a separate in personam claim issued after expiry of the statutory period. The relation-back provisions of section 35(1) of the Limitation Act 1980 do not apply.
4. The mandatory extension under section 190(6) is directed to in rem proceedings. Its purpose is to give a reasonable opportunity to arrest the defendant ship. That rationale has no application to an in personam claim, which is brought by serving the person rather than arresting the res.
5. The two-stage approach in The Al Tabith was correct. First, the claimant must establish a good reason for failing to commence proceedings in time. If that threshold is met, the court may then exercise its discretion by considering all relevant circumstances, including the balance of hardship. The claimant’s culpable mistake in believing that an in rem claim form was hybrid was not a good reason. The same conclusion applied where the claimant had simply failed to appreciate the applicable limitation period.
6. Paragraph 3.6(7) of Practice Direction 61 permits alternative service only where the property against which the claim is brought is within the jurisdiction. It cannot justify service out of the jurisdiction when the vessel is absent, nor support a prospective order triggered by a possible future return.

• Court of Appeal (Civil Division): The appeal from Hamblen J was dismissed. Permission to appeal from the Admiralty Registrar was refused.
• High Court, Admiralty Court: Hamblen J granted mandatory extensions for the in rem proceedings, but refused a discretionary extension for the late in personam proceedings and set aside permission to serve the in rem claim form out of the jurisdiction.
• Admiralty Registrar: The application to extend time in the Odyssée proceedings was refused under section 190(5) of the Merchant Shipping Act 1995.