Legally speaking – comment by Shepstone & Wylie

Recent court finding changes face of ‘in rem’ arrest ‘Must be backed by solid case’ THE “QUICK” way of arresting a ship for debt may not be so speedy any more unless the summons has a pretty solid case backing it, according to Alison McClure, of the international transport and trade division of Durban-based legal firm, Shepstone & Wylie. This followed a finding in the Durban court by Justice J Combrinck that the claims made in the summons against the vessel, the MV Galaecia, did not “contain sufficient particulars to enable the defendant to justify the facts and contentions upon which the claim is based”, as is demanded by Rule 2(1)b of the Admiralty Jurisdiction Regulation Act 105 of 1983. This relates to the in rem arrest, which, McClure told FTW, is viewed as a “speedier” way of obtaining an arrest warrant against a vessel by proving a prima facie claim to the court on a balance of probabilities. It is achieved by the issuing of an arrest warrant, which is done by the registrar without an application to court – and does not generally require judicial discretion. “But,” McClure added, “in the MV Galaecia case, while it was noted that submission of an abbreviated form of summons had become standard practice, in this instance the summons put up by the claimant was one lacking in factual support for any of the three conclusions of law made in it. “Combrinck also found that compliance with Rule 2(1)(b) was viewed as imperative to the survival of a prejudice-free arrest environment. “And, it was on this basis that he issued a directive to claimants and their attorneys that, in future, compliance with the rule when seeking arrests in rem was essential.” The judge supported his finding with something which McClure described as “even more thought provoking”. “That,” she said, “was the opinion he expressed on the constitutional implications flowing from the failure to provide sufficient facts in the summons in prima facie support of a claim. “This was perceived as causing severe prejudice to the owner of a vessel, as it ultimately curtails any vessel owner’s ability to have the arrest set aside and gives rise to procedural difficulties.” Combrinck also raised another interesting point relating to rule 4(3) of the act. This calls upon a claimant (or the claimant’s attorney) to submit a certificate in which certain averments are set out. “However,” said McClure, “these averments are bare in essence – and, while a claimant or its attorney is advised to include evidence in support of its claim, this is not always the case.” Arrests in rem, for example, have been granted by the registrar of the courts purely on the basis of the production of a summons together with the certificate. “This certificate merely sets out the required averments,” McClure said, “without any justification for them.” The judge, said McClure, also considered that the signing of the certificate by a claimant’s attorney was “an empty gesture”. “This,” McClure said, “because a certifying attorney acting on behalf of a foreign claimant generally has no personal knowledge of the contents to which he is certifying.” On this basis, Combrinck directed that the certificate should be attested to by a representative of the arresting party who has knowledge of the matter - and that a facsimile of such certificate accompany the arrest warrant. Also, it was submitted that in the case of arrest papers being handed to the registrars for the issue and granting of an arrest warrant, such a decision should be referred to a judge for consideration – “as facilitated by rule 4(2)(b) of the act”. The court’s directive, she added, will certainly simplify the job of attorneys instructed to apply to set aside such an in rem arrest. “This would have been especially true in the past where bald allegations had been made that a ship ought to be arrested because it was “associated” with another vessel - the one to which the claims actually related,” she said. If this was done without disclosing the factual basis for making such an allegation, McClure reckoned that the defending attorney would have been in the impossible situation of having to “prove a negative in a vacuum”. But the MV Galaecia court finding, she added, will now change the whole face of an in rem arrest.