Vincent Ng J:

Before me are two appeals arising from the two decisions of the senior assistant registrar in admiralty suit no. D1-27-25-2002. In encl. 20, the defendant owners appealed against the decision of the registrar dismissing the defendants' application to set aside (to strike out) the plaintiffs' claim for the price of goods and materials or necessaries supplied to the vessel "The Neptune". In encl. 21, the plaintiffs appealed against the decision of the registrar who disallowed the plaintiffs' application to set aside the conditional appearance entered by the defendant who were the present owners of "The Neptune".

The parties have agreed to accept my decisions on the respective appeals in encls. 20 and 21 herein as equally determinative and binding in respect of two similar applications in suit D1-27-26-2002 (encls. 20 and 21) between V Ships (Pte) Ltd & Another v. The Owners and/or Demise Charterers of the Ship Or Vessel "The Mercury".

After hearing and considering the applications, reading all the affidavits and written submissions put in by both sides, I allowed the plaintiffs' appeal videencl. 21 but dismissed the defendants' appeal vide encl. 20, both enclosures in suit D1-27-25-2002. I now set out my reasons.

The Plaintiffs' Appeal In Enclosure 21

I will deal with encl. 21 first since this involves the question of locus of the defendants. If after deliberation it is my finding that the defendants lack the necessary locus standi to be the proper defendant in this admiralty action, the defendants' appearance entered in this action would have to be struck out (set aside) with the consequence of rendering the defendants' appeal in encl. 20 academic.

In encl. 21, plaintiff prays for conditional appearance entered by Louis Herbelin Sdn Bhd to be set aside and for them to cease to be party to this suit, on the grounds that the latter had adopted the wrong procedure in law to protect their alleged interest if any. The plaintiff also seeks other orders consequential to the aforesaid prayers. The question for determination in this enclosure is: Who could be a proper defendant in an admiralty action? The answer to this would determine whether or not Louis Herbelin has the necessary legal capacity to assume the status of the defendant in this suit, which capacity in turn would entitle them to take out an application to strike out the plaintiff's action.

If Louis Herbelin fulfils the necessary prerequisites of a defendant to this action, they would have every right to enter appearance, conditional or unconditional, in this action. And, accordingly the plaintiffs' application in encl. 21 would have no merit and ought to be dismissed. But if the converse applies, then Louis Herbelin's appearance in this action would have to be set aside and their status as the defendant in this action expunged, and consequently they would no longer be a party to this action.

In Malaysia, the court's admiralty jurisdiction is conferred by s. 24(b) of the Courts of Judicature Act 1964 (CJA). Section 24(b) CJA gives effect to a statute of the UK Parliament, namely the Supreme Court Act 1981 (SCA) and renders the said UK Act as governing law applicable in matters of admiralty in Malaysia. Ssection 24(b) CJA empowers our courts to apply the provisions of the UK Supreme Court Act 1981 in the same manner as an English High Court would do when determining an admiralty matter under the Act. See Kawasaki Kisen Kaisha Ltd v. Owners of the Ship or Vessel 'Able Lieutenant' [2002] 7 CLJ 478.

The useful starting point for our analysis is the form and content of the admiralty writ of summons in an action in rem as provided for in Form 155 under O. 70 r. 2 of the Rules of the High Court 1980 (RHC). Form 155 requires the defendant in an admiralty writ in rem to be referred simply as "the owners of the ship or vessel (vessel name)". This is completely unlike the more common in personam writ of summons where the defendant has to be properly identified