The United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Ltd (Trading as UKP & I Club) v The Owners and Parties Interested in the Motor Vessel “humber” Registered at the Port of Nassau, New Providence, the Bahamas
| Jurisdiction | Bahamas |
| Judge | Osadebay, Sr. J. |
| Judgment Date | 17 March 2000 |
| Court | Supreme Court (Bahamas) |
| Date | 17 March 2000 |
Supreme Court
Mr. Van Gaitor for the plaintiff.
Mr. Charles Mackay for the defendants.
Practice and procedure - Default judgment — Mareva injunction — Application to set aside default judgment for plaintiff in the sum of US $121,866.00 and interest and mareva injunction restraining the Director of Maritime Affairs from registering change of ownership of motor vessel “The Humber” until satisfaction of judgment — Whether action a common law action for collection of debt and therefore subject to O.111 of the RSC or an admiralty action in rem and subject to O. 67 — Order of court that service of notice of writ and default judgment be set aside on ground that leave for the service was irregularly obtained — Order also that injunction be discharged on the ground that the ship, the “res”, was outside the jurisdiction at the material time — Court therefore had no jurisdiction to grant an injunction restraining disposal of assets.
In this application before me, the defendants seek an order of this Court to set aside not only the final judgment entered by the plaintiff against the defendants by leave of the court but also to set aside the injunction granted by order of the court on the 15th. April, 1999, restraining the Director of Maritime Affairs as Registrar of Bahamian Shipping from. registering or permitting to be registered any change in the ownership of the M/V. “Humber” registered at the time of the Order with the Bahamian Ship Registry and from registering or permitting to be registered any dealings with any share in the M/V. “Humber” until satisfaction of the said judgment interest and costs.
The plaintiff in this matter is a company incorporated in Bermuda and carries on business in the United Kingdom through an association known as “U.K. P & I Club.”
The M/V. “Humber” is owned by a company known as “Derris Holdings S.A.” whose address is stated as “Edificio Eastern, Pico No. 12, Averida Federico Boyd, Panama City, Republic of Panama” on the Transcript Register of Bahamian Ship taken from the Register Book, London. It is also said that the operators of Derris Holdings S.A. are Africa Bulk Services Incorporated of Tampa, Florida, in the United States of America and that Seascot Shiptrading Ltd. are the managers of the M/V. “Humber.”
On the 4th. March, 1999, the plaintiff issued a Writ. This Writ was marked “Admiralty Side, Admiralty Action in Rem,” “This Writ is not for service out of the jurisdiction.” In the Writ the plaintiff claimed the sum of U. S. $121,866.00 as monies due and owing in respect of outstanding calls pursuant to the terms of a contract between the plaintiff through its association U.K. P & I Club and the Owners of the M/V. “Humber.” In that Writ, the plaintiff also claimed an Injunction restraining the Director of Maritime Affairs in the terms which I have already stated but to last “until the determination of this action.”
Also, by a Summons filed on the same day, 4th. March, 1999, the plaintiff applied for an Interlocutory Injunction in terms similar to those in the Writ. That application was supported by an affidavit sworn to by Oscar Johnson, Jr., an Attorney and a Partner in the Law firm of Higgs & Johnson, Nassau, Bahamas. In his said affidavit Mr. Oscar Johnson deposed, inter alia, as follows:
“5. The Transcript of Register referred to in paragraph 3 hereof also states that there is a Mortgage of all of the shares in MN “Humber” dated the 19th March, 1997 to secure certain sums due on an account current, withinterest in favour of Den Norske Bank (London Branch) of 20 St., Dunstan's Hill, London, EC3R 8HY, England.
6. The owner of MN “Humber”, Derris Holdings S. A., is a member of UK P&I Club, an association owned and operated by the plaintiff, and according to a Statement of Account provided by the plaintiff, Derris Holdings S. A. Owes the plaintiff the following sums of money: US $121,866.00 in respect of outstanding calls, which said sum ought to have been paid in 1998; and US $144,715.00 in respect of release calls payable to the plaintiff by the 25th March, 1999. There is now produced and shown to me a copy of the Statement of Account provided by the plaintiff which is annexed hereto as Exhibit “O.N.J. 3”.
7. I have been informed by the plaintiff's London Solicitors, Ince & Co., who are my instructing solicitors that there is reason to believe that the MN “Humber” is presently in the vicinity of Singapore and that over the next few days the vessel will sail for India to be scrapped.
8. The plaintiff is seriously concerned that the owners of the MN “Humber” may take steps to sell the vessel over the next several of days before they would have settled their debt with the plaintiff. The plaintiff would like to protect itself against such eventuality because in the event the vessel is sold, the plaintiff's interest would be seriously prejudiced as the owners may have no further asset against which the plaintiff may seek to recover its loss.
9. In the circumstances, the plaintiff seeks an order against the Director of Maritime Affairs as the Registrar of Bahamian Shipping restraining him from registering or permitting to be registered any change in the ownership of the MN “Humber” or any dealings whatsoever with the MN “Humber” which is currently registered with the Bahamian Ship Registry.” (Emphasis - Provided)
I was informed that at the hearing of the ex pane application for the injunction and notwithstanding that no formal application as required by the provisions of Order 11 of the Rules of the Supreme Court (R.S.C.) had been made, the plaintiff obtained not only the injunction applied for but also an Order granting Leave to issue a Concurrent Writ in the following terms:–
“IT IS ORDERED that:
1. The Director of Maritime Affairs as the Registrar of Bahamian Shipping be and is hereby restrained from registering or permitting to be registered any change in the ownership of the MN “Humber” which is currently registered with the Bahamian Ship Registry and from registering or permitting to be registered any dealings with any share in the MN “Humber” to remain in effect until and including the 15th of April, 1999;
2. The plaintiff is granted leave to issue a Concurrent Writ and to serve notice of the Concurrent Writ and Notice of Hearing of the application by the plaintiff for a continuation of this Order until the trial of this action outside the jurisdiction on Derris Holdings S.A., owners of the MN “Humber”, such hearing to take place, at 9:30 a.m. on the 15th April, 1999 before the Honourable Mr. Justice Nathan in chambers.”
I should state that I found no affidavit bled by the plaintiff, and none has been shown to me, in support of an application for the issuance of the Concurrent Writ and for service outside the jurisdiction as was ordered in paragraph 2 of the Order stated above. I should also note here that the Injunction was granted notwithstanding that paragraph 5 of the affidavit of Mr. Johnson in support revealed the existence of a prior charge or mortgage to which the M/V. “Humber” was subject. During the hearing in this matter it was admitted or conceded by counsel for the plaintiff that the charge or mortgage revealed in paragraph 5 of the Johnson's affidavit would constitute a prior charge vis-à-vis any judgment the plaintiff obtained under this action. That being the case, it would be trite to say that the injunction granted to the plaintiff in this matter would, no doubt, affect any exercise by the holder of that charge of his or its rights under that charge stated in paragraph 5 of the affidavit of Mr. Oscar Johnson.
Indeed the affidavit of James Lennox Moxey, an attorney-at-law, a Partner in the Law firm of Mackay & Moxey, filed on the 4th. February, 2000, in this matter states that Den Norske Bank A.S., a Commercial Bank and the mortgagee holding a mortgage over the M/V. “Humber” to secure a loan and overdraft facilities presently standing at U.S. $413,380.00 is now unable to exercise its rights of sale under the mortgage with a view to satisfying the prior charge and indebtedness. As a holder of a charge with priority over the plaintiff's claim, it asks that the injunction be discharged to enable it to exercise. its rights under the mortgage. The plaintiff has not denied that the mortgage held by Den Norske Bank A.S. ranks as a prior charge over the plaintiff's claim against the defendants.
Service of Notice of Writ outside the Jurisdiction Order 11 Rules of the Supreme Court
I now revert to the issue of the granting of leave to issue a Concurrent Writ and to serve Notice of it on the defendants outside the jurisdiction.
Order 11, r. 4 of the R.S.C. provides as follows:
“Application for, and grant of, leave to serve writ out of jurisdiction (O. 11, r.4).
4.-(1) An application for the grant of leave under rule 1 or 2must be supported by an affidavit stating the grounds on which the application is made and that, in the deponent's belief, the plaintiff has a good cause of action, and showing in what place or country the defendant is, or probably may be found.
(2) No such leave shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order.
(3) An order granting under rule 1 or 2 leave to serve a writ, or notice of a writ, out of the jurisdiction must limit a time within which the defendant to be served must enter an appearance.”
Service of the Writ or Notice of a Writ outside the jurisdiction is not therefore allowed unless the application is supported by an...
To continue reading
Request your trial