Tecoil Shipping Ltd v The Owners of the Ship "Poseidon"

In an in rem collision claim, the court may grant judgment in default where the defendant has failed to acknowledge service and the relevant time has expired. CPR Part 61 does not exclude the general default-judgment procedure in CPR Part 12 where the obligation to file a collision statement of case has not arisen. The claimant must still prove the claim to the court’s satisfaction, including the collision, the defendant vessel’s fault and the recoverable loss. Damages must be assessed on the evidence available, allowing only losses shown to be reasonable and attributable to the collision. A Part 36 offer made to an insurer rather than the defendant or its properly instructed legal advisers does not attract the consequences of CPR Part 36.

The claimant, owner of the TECOIL POLARIS, brought an in rem collision claim against the owners of the POSEIDON after the vessels collided in Albert Dock, Hull. The defendant did not acknowledge service. The claimant applied for default judgment and permission to correct the vessel’s description in the claim form. The amendment was allowed by order dated 14 January 2020.

The principal issues were whether default judgment could be granted for failure to acknowledge service in an in rem collision claim, and, if so, the recoverable damages, interest and costs. The court also considered the claimant’s request for enhanced costs consequences under a Part 36 offer.

1. Default judgment. The court held that the wording of CPR Part 61 does not expressly prohibit judgment in default of acknowledgment of service in a collision claim. Rule 61.9(1) concerns in rem claims other than collision claims, while rule 61.9(2) concerns default of a collision statement of case after such a statement has been filed. It does not govern the present situation, where the obligation to file a collision statement had not arisen.
2. CPR Part 12 remained applicable because it generally applies to claims unless specifically excluded. The court therefore had power, either under its inherent jurisdiction or through Part 12, to grant judgment once the time for acknowledging service had expired, subject to the evidential requirements of rule 61.9(3). The claimant was entitled to judgment in default.
3. The claimant nevertheless had to prove the claim to the court’s satisfaction. The CCTV evidence and collision statement established that the collision occurred and that the POSEIDON was solely at fault. The claimant could recover reasonable repair costs and other financial losses caused by the collision.
4. On the available evidence, the court awarded £119,033.41 and €124,462.80, together with interest at 4% from the collision date. The assessment excluded unnecessary dry-docking and allowed a reasonable sum for painting, repair-related expenses and five weeks’ loss of use.
5. The enhanced costs provisions in CPR Part 36 did not apply. The offer had been made to the P&I insurer, not the defendant or legal advisers instructed for the defendant, and the judgment was not less advantageous overall when the sterling and euro components were compared. Costs of £105,584.50 were allowed.