IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 2 OF 2003

Between:

CONG YU QIN
Plaintiff

and

THE OWNERS OF THE MOTOR VESSEL “PING AN 6”
Defendants

Ms. R. Lal for the Plaintiff
No appearance for the Defendant

JUDGMENT

This is the plaintiff’s application for leave to enter default judgment against the defendant in the sum of US$16,208.65 together with interest.

The defendants in this case are The Owners of the Motor Vessel ‘Ping An 6’, a vessel presently lying in the Port of Suva.

The defendants failed to acknowledge service of the Writ of Summons and Statement of Claim. Service of this application was effected via the Captain of the vessel and its local agents.

This application is made pursuant to Order 75 Rule 21(3) and (4) of the Supreme Court Rules of England which are part of the Laws of Fiji (vide The “Voseleai” 40 FLR (1994) 224 (judgment of Fatiaki J, now Chief Justice).

The learned counsel for the plaintiff submitted that orders have previously been made by Court entering default judgment against the defendants on similar application (vide Just v The Owners of the Motor Vessel “Mudcrab” – unreported Admiralty Action No. HBG 001 of 1994 – judgment of Byrne J). 

Ms Lal therefore seeks an order for leave to enter judgment by default against the defendants.

The relevant order in Admiralty Proceedings, namely, Or 75 Rule 21(3) and (4) (The Supreme Court Practice (U.K.) 1988) provides as follows:

(3)	Where a defendant to an action in rem fails to acknowledge service of the writ within the time limited for doing so, then, on the expiration of 14 days after service of the writ and upon filing an affidavit proving due service of the writ, an affidavit verifying the facts on which the action is based and, if a statement of claim was not indorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default.

Where the writ is deemed to have been duly served on the defendant by virtue of Order 10, rule 1(4) or was served by the marshal or his substitute under rule 8 of this Order, an affidavit proving due service of the writ need not be filed under this paragraph but the writ indorsed as mentioned in the said rule 1(4) or indorsed as mentioned in rule 8(3A) must be lodged with the affidavit verifying the facts on which the action is based.

(4)	Where a defendant to an action in rem fails to serve a defence on the plaintiff, then, after the expiration of the period fixed by or under these rules for service of the defence and upon filing an affidavit stating that no defence was served on him by that defendant during that period, an affidavit verifying the facts on which the action is based and, if a statement of claim was not indorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default. (emphasis mine)

The rules have been complied with and service on all concerned has been effected but there has been no response from the defendants.

On the facts of this case, although the vessel has not been arrested judgment by default can be obtained (The Nautik [1895] P 121) . In Nautik it was held:

‘that the Court had jurisdiction to pronounce judgment, for, though, according to the ordinary practice, the property proceeded against must be under the arrest of the Court, still the service of the writ by which actions in rem are now commenced is notice to all persons interested in the property of the claim indorsed on the writ, and has the same effect, so far as notice is concerned, as the service of the warrant under the former practice.’

Just as in the case before me, so in Nautik (supra) the issue was whether the vessel not having been under the arrest of the Court, the Court has jurisdiction to pronounce judgment by default. There Bruce J was of the opinion that it has. In this regard the following passage from his judgment is pertinent as laying down the law:

‘Service of a writ in rem, upon property within the jurisdiction of the Court, is notice to all persons interested in the property of the claim indorsed upon the writ. It is quite true that, according to the older practice, a suit in rem was commonly commenced by a warrant arresting the property, just as, in still earlier practice, a suit in personam was commonly commenced by a warrant arresting the person. But all that is necessary to found jurisdiction is to give formal notice to the persons interested that a claim is made against them or against their property in a court of competent jurisdiction, and that, if they do not appear to vindicate their rights, judgment may be given in their absence.

The Rules of the Supreme Court directed that actions in rem should be commenced by writ, and I think the service of the writ on the property has the same effect, so far as notice to the persons interested in the property is concerned, as service of a warrant had under the former practice. To confer jurisdiction it is not, I think, necessary that the property, the subject-matter of a suit, should be actually in the possession of the Court or under the arrest of the Court; it is enough that it should, according to the words of Lord Chelmsford, in the case of Castrique v. Imrie (1) “be within the lawful control of the State under the authority of which the Court sits.” (underlining mine)

Whilst on this subject it is pertinent to note that Jessel M.R. in The City of Mecca (1879, 6 P.D. 106 at 112) expressed the same view as above when he said:

“An action for enforcing a maritime lien may no doubt be commenced without an actual arrest of the ship…”

In the words of Sir John Jervis in The Bold Bucclough (7 Moo. P.C. C.269 at 284) maritime lien is defined thus:

“Having its origin in this rule of the civil law a maritime lien is well defined by Lord Tenterden to mean a claim or privilege upon a thing to be carried into effect by legal process, and Mr. Justice Story (2) explains that process to be a proceeding in rem, and adds that wherever a lien or claim is given upon the thing, then the Admiralty enforces it by a proceeding in rem, and indeed is the only competent Court to enforce it. A maritime lien is the foundation of the proceedings in rem, a process to make perfect a right inchoate from the moment the lien attaches, and whilst it must be admitted that where such a lien exists a proceeding in rem may be had, it will be found to be equally true that in all cases where a proceeding in rem is the proper course, there a maritime lien exists which gives a privilege or claim upon the thing to be carried into effect by legal process.” 

It is interesting to note further Jessel M.R’s. statements on ‘judgment against the ship’. He said ibid at 112:

“You may in England and in most countries proceed against the ship. The writ may be issued against the owner of such a ship, and the owner may never appear, and you get your judgment against the ship without a single person being named from beginning to end. That is an action in rem, and it is perfectly well understood that the judgment is against the ship.

For these reasons on the authority of Nautik and being satisfied that the plaintiff’s claim is well founded I give judgment for the sum claimed with costs.

D. Pathik
Judge

At Suva
16 May 2003