Arresting A Vessel In Singapore: Disclosure To The Courts
JTJB Legal Update August 2014
The right of arrest is founded under section 3 of the High Court (Admiralty Jurisdiction) Act (Cap. 123) of Singapore. Examples of claims which give rise to this right of arrest include:
- Damage done by a ship;
- Loss/damage to goods carried in a ship;
- Agreements relating to the carriage of goods, or the use or hire of a ship; and
- Goods supplied to a ship for her operation or maintenance.
To commence an action and arrest a vessel, a claimant must:
- File a Writ of Summons in the High Court of Singapore; and
- Apply for a Warrant of Arrest, supported by an Affidavit.
Duty to make full and frank disclosure
The ‘Evmar’[1989] 1 SLR(R) 433 was the first case in Singapore to lay down the duty to make full and frank disclosure when applying for a Warrant of Arrest, but the exact effect and consequence of non-compliance with such duty was not clear.
It was only in The Rainbow Spring [2003] 3 SLR 362 that the Court of Appeal affirmedthe need to make full and frank disclosure of all material facts when a claimant makes an application ex parte for a warrant of arrest. This is to ensure that the Court is placed in a position to properly exercise its discretion and not overly favour the plaintiffs’ interest at the expense of the shipowners’. The failure to disclose material facts may be an independent ground upon which the arrest may be set aside.
As for what constitutes a material fact that needs to be disclosed, it was defined in The ‘AA V’ [1999] 3 SLR(R) 664 as:
“…facts that are relevant to the making of the decision whether or not a warrant of arrest should be issued that is, a fact which should properly be taken into consideration by the court when weighing all the circumstances of the case though the disclosure of the fact might not have had the effect of leading to a different decision being made.”
In The ‘Vasiliy Golovnin’ [2008] 4 SLR(R) 994, the Court of Appeal stressed that the test for materiality is an objective one, by asking how relevant the fact is. It focuses on what might be relevant to the Court in assessing whether to grant the Warrant of Arrest, and not what the applicant alone might think is relevant.
However, parties should not meticulously attempt to dissect the factual matrix in painstaking efforts to “invent” missing material facts. What is material is “essentially a matter of common sense”, although having said that, it is preferable to err on the side of more disclosure rather than less.
The Court of Appeal also noted that the material information must be presented to the eyes and ears of the judge. It would therefore be insufficient to simply ‘slip in’ documents without drawing the Court’s attention to the same.
Examples of what needs to be disclosed
A potential arresting party should keep in mind that the following material facts, where relevant, will need to be disclosed when making an ex parte application for a Warrant of Arrest:
- Factual and legal matters which may be prejudicial or disadvantageous to the successful outcome of the applicant’s application;
- All material facts that can be reasonably ascertained;
- The existence of an arbitration agreement, and whether the plaintiff intends to pursue arbitration;
- Previous and concurrent proceedings, whether local or foreign, relating to the same claim, and whether they have been successful;
- Exchange of correspondence between parties on any settlement, instalment payments, indulgence granted etc.;
- Plausible defences that may be reasonably raised by the Defendants; and/or
- Time bar
Failure to disclose such material facts may result in the setting aside of the Warrant of Arrest and possibly damages for wrongful arrest.
Contributed by:
 | Contributed by: Brenna Yeo Associate brennayeo@jtjb.com Brenna was called to the Bar in 2012. Her area of practice include Shipping & Admiralty and Commercial Dispute Resolution. |