Markwarth Oil Ltd v The Ship MV Renbel [2006] SBHC 61; HCSI-CC 279 of 2006 (21 July 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 279 of 2006

MARKWARTH OIL LIMITED

-v-

THE SHIP MV RENBEL

High Court of Solomon Islands
(Brown, P.J)

Date of Hearing: 21st July 2006

Date of Ruling: 21st July 2006

M. Rodney Kingmele for the Plaintiffs
Ex Part application

Ex Parte summons for arrest of a ship

REASONS

Brown J: This cause is a claim for debt for goods supplied, for by endorsement of claim the plaintiff claims money for petroleum products supplied to MV Renbel. By way of particular a director of the plaintiff has annexed the plaintiff’s invoice – "Bill to MV Renbel" – in the total sum of $36,890.39 dated 21.01.2006.

An ex parte summons seeking a warrant for the arrest of the ship comes before me today, supported by a certificate of urgency, an undertaking to meet the costs of the Admiralty Marshall in connection with the arrest and an affidavit in support sworn by the director, Mr. Markwarth on the 17 July 2006.

Mr. Kingmele points to S. 209(1) of the Shipping Act 1998 where, at sub-section (1)(10) Admiralty jurisdiction in rem shall be conferred with respect to claims "for goods, materials or services supplied a vessel". There is, then evidence by way of invoice of the supply of goods, the petroleum products.

Mr. Kingmele also points to the failure of the ship to make payment of the claim for at paragraph 9 of Mr. Markwarths affidavit he says "The plaintiff has requested payment of its outstanding invoices on various occasions since the month of February 2006 and as recently as Friday 14 July 2006 but no payment whether in part or at all or securely for payment has yet been received". This statement contains no detail of the requests. This is material for, on the documents filed with Mr. Markwarth affidavit there is uncertainty about ownership of the vessel. The ship is a coastal trader, and trades about the islands in the Solomons. It is locally registered.

The deponent in paragraph 12 says the ship may depart Honiara and this is, I presume the basis of the urgency. I take note however, that the debt has been outstanding since late January and presumably (with the various claims for payment of the ship), it may be presumed to tie up about Honiara from time to time in the course of its trade. There is certainly no claim that it will depart the jurisdiction.

Mr. Kingmele says the HC powers to arrest are found in S. 202(4) which states:-

"202(4) A vessel may be arrested for the purpose of obtaining security notwithstanding any clause....".

The sole purpose of an action in rem was to obtain security in respect of a judgment of the court in the action; the court has no jurisdiction to arrest ships or to keep ships under arrest for other purposes, see The Cap Bon (1967) 1 Lloyds Rep 543.

Here, I am not minded to exercise my discretion to arrest – No notice of this claim filed in the court for the debt has been made against the ship yet. There has been no opportunity for the ship or its owner to answer this claim. The ship is a local trader and may as circumstances now stand be available for seizure to satisfy an order, perhaps, once judgment is given. To exercise the powers of the court to arrest in these circumstances at this time would go beyond my discretion granted the court under the Shipping Act since there is no real risk to the loss of the rem, by leaving the jurisdiction, for instance.

Order

I refuse the application. The ex parte summons is struck out.

THE COURT