Zulkefli Makinuddin J:

Facts Of The Plaintiff's Case

The plaintiff's claim as indorsed on the writ of summons is as follows:

The plaintiff, as charterer of the defendant's ship or vessel "Able Lieutenant" under a charterparty dated 2 October 2000 claimed damages for the loss and damages suffered by it by reason of the defendant's breach of the said Charterparty together with interest and costs. The defendant in this action is Able Shipping Sdn Bhd ("Able Shipping") who executed the said charterparty in its capacity as owner of the vessel "Able Lieutenant" and is also the registered owner of the vessel "Able Lieutenant" which is registered at the port of registry, Port Klang. The plaintiff issued the writ of summons on 24 November 2001. On 29 November 2001 plaintiff obtained a warrant of arrest for the vessel "Able Lieutenant" and on the same day the warrant was executed and the ship arrested in Port Klang. On 4 December 2001, Pan Ocean Shipping Sdn Bhd ("Pan Ocean") claiming to be beneficial owner of the ship "Able Lieutenant", entered a conditional appearance as defendant as of right. On 6 December 2001, Able Shipping, the proper defendant and registered owner of the ship "Able Lieutenant" entered a conditional appearance as defendant also as of right.

Purpose Of Arrest Of Ship In An Admiralty Action In Rem

At the outset, it is also important to note that the purpose of arresting a ship in an action in remis to obtain security for the satisfaction of any judgment which the plaintiff may obtain in such an action, or of any sum which may become payable to him under a settlement of such an agreement. In practice, this threat of an arrest provokes the owners into providing voluntary security, for example by way of either a bank or insurance company guarantee, or letter of undertaking or filing a bail bond. The court does not have any jurisdiction to arrest or keep the ship under arrest for other purposes. Such security will ensure that the plaintiff's prospects of recovery are not hampered by any transfer of ownership in the ship or any financial impecuniosity of the shipowner. If security is not furnished by the shipowner, the arrest of the ship will be maintained until such step is taken by the plaintiff under the in rem process to seek from the court for a judicial sale order of the ship.

Pan Ocean's Notice Of Motion In Encl. (29)

In the motion taken out on 14 December 2001, Pan Ocean, which has entered conditional appearance as the beneficial owner of the vessel "Able Lieutenant" in the above suit, seeks the following orders:

1. To set aside the writ of summons dated 24 November 2001.

2. To strike out the writ for abuse of the court process and/or frivolous and vexatious.

3. To set aside the warrant of arrest issued for the vessel "Able Lieutenant"

4. To forthwith release the vessel "Able Lieutenant" from arrest.

5. Alternative to (4) to discharge any security furnished for the release of the vessel "Able Lieutenant" and for the return of the security to Pan Ocean.

6. To assess the damages for wrongful arrest suffered by Pan Ocean.

7. Costs and costs of the motion to be borne by the plaintiffs.

8. Such other relief that this honourable court thinks fit and just.

Defendant's Summons In Chambers In Encl. (31)

In the summons in chambers taken out on 19 December 2001, the defendant, Able Shipping who had entered conditional appearance in the above suit seeks the following orders:

1. To set aside the writ of summons dated 24 November 2001 and its service and all further proceedings in this action.

2. Alternatively, to strike out the indorsement of claim in the writ of summons dated 24 November 2001 under O. 18 r. (19)(1)(b) RHC 1980and under the inherent jurisdiction of the court for the reason that it is scandalous, frivolous or vexatious and detrimental to the beneficial owners of the ship or vessel "Able Lieutenant".

3. Alternatively, to strike out the indorsement of claim on the writ of summons dated 24 November 2001