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CaseLaw

M V Da Qing Shan V. PAC Ltd (1991) CLR 11(a) (CA)

Brief

  • Admiralty matters
  • Bail
  • Arrest of ship
  • Sequestration
  • Stay of execution
  • Ground of appeal

Facts

This appeal has been fought on a number of assumptions. On a close study I think most of them are wrong. The matter concerns the arrest of a ship, MV DA QING SHAN, its subsequent release and then re-arrest. The questions that will be decided here include:

  • a.
    whether the arrest amounts to the execution of an order of court:
  • b.
    Whether the release will similarly by so regarded:
  • c.
    whether the order of re-arrest can be seen as amounting to a stay of execution of the release order pending an appeal by the plaintiffs against that release. The appeal against that release order which was made on 21 March, 1991 by Auta, H., is yet to be heard by this Court. But there is this present appeal against the order of re-arrest which stipulates that the ship is to be release upon the defendants providing a bank guarantee in the sum of£300,289.00. The conditional release order was made also by Auta., J., sitting at the federal High Court, Calabar on 19 April, 1991. The facts of this case are as supplied in the bundle of documents compiled by the defendants/appellants for the purpose of this appeal.

In February, 1991, the plaintiffs filed a claim-

“for the sum of £300.289.00 being amount due and payable by the Defendants to the Plaintiffs in respect of excess freight paid to the defendants’ vessel, the DA QING SHAN under duress whilst the vessel was at Singapore together with expenses incurred as a result of the short loading of the contractual quantity of 6833 (metric tons) of Copra (amount loaded 6196) inclusive of loss of profit and bank charges claimed by the consignee and for interest charges at the rate of 15 percent monthly, pro-rated daily and for all further or other expenses incurred as a result of the negligence, breach of contract, misrepresentation and fraud by the defendants.”

Damages of an unspecified amount were also claimed under a charter party. The said ship was at the Calabar port when an earlier arrest order was made on 25 February, 1991. The arrest and detention were carried out by the Admiralty Marshal. The existence of a charter party as found by the trial court led to proceedings on the claim in respect thereof being stayed and the parties ordered to submit to arbitration which is to take place in London. The appeal against the first release is still to be heard in thus Court. An application to countermand the release pending the determination of the appeal was brought by the plaintiffs. It was in the form of an application for stay of execution. It is common ground that at the time the application was brought the ship had been released. But she had not left the Calabar port, and indeed could not leave, because of another arrest order obtained in another matter by some other party.

In a ruling on the application for stay of execution given on 19 April, 1991 the learned judge expressed satisfaction that special circumstance had been shown to warrant a stay and prevent the ship from leaving. The special circumstances were found to be that

  • a.
    the grounds of appeal raised substantial points which, as he said, touched on an area of law which is to some extent recondite-particularly as to security for an award pending arbitration:
  • b.
    the plaintiffs would suffer greater hardship than the defendants if they were left with no remedy in case they were successful and the ship had gone;
  • c.
    (c) the res ought to be preserved, being a Foreign-owned ship (the defendants having no other assets within jurisdiction) so as not to render nugatory any decision of the court, or put the appeal court in a helpless situation.

The learned judge consequently ordered that all the writs of execution issued to enforce the release of the said vessel MV DA QING SHAN be set aside. He also granted a stay of execution in the matter until the determination of the appeal. The order further enjoined the Admiralty Marshal to re-arrest the vessel pending the determination f the appeal and that the ship should only be released on the provision of a bank guarantee by the defendants/respondents to the plaintiffs/applicants Bank in the sum of £300,289.00.

Dissatisfied with the judgment, the defendants appealed to the Court of Appeal.

Issues

  • 1.
    Whether the action was statute barred....
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