The County Court Rules 1981

ORDER 40ADMIRALTY PROCEEDINGS

Application and interpretation

1.—(1) This Order applies to Admiralty proceedings and, subject to the provisions of this Order, the other provisions of these rules apply to those proceedings as they apply to default actions.

(2) In this Order “court” means an Admiralty county court and “district” means the district assigned to such a court for Admiralty purposes.

Venue for commencement of action

2.—(1) An action in rem may be commenced in the court for the district in which the property against which the action is brought is situated at the time of the commencement of the proceedings or, if the property is situated in England or Wales but is not situated in the district of any Admiralty county court, then in the court for the district nearest to the place where it is situated.

(2) An action in personam may be commenced—

(a)if an action in rem could have been brought in respect of the claim, in the court for the district in which the owner, or one of the owners, of the property against which such an action would have lain or the agent in England or Wales of the owner resides or carries on business, or if no such owner or agent resides or carries on business within the district of any Admiralty county court, then in the court for the district nearest to the place in England or Wales where the owner or one of the owners or the agent resides or carries on business; or

(b)if sub-paragraph (a) is not applicable, then in the court for the district in which the defendant or one of the defendants resides or carries on business or, if no defendant resides or carries on business within the district of any Admiralty county court, then in the court for the district nearest to the place in England or Wales where the defendant or one of the defendants resides or carries on business; or

(c)by leave of the judge or registrar, in the court for the district in which the cause of action wholly or in part arose.

Particulars of claim in action in rem

3.  When filing particulars of his claim pursuant to Order 6, rule 1, the plaintiff in an action in rem shall file a copy for service with the summons.

Warrant of arrest

4.—(1) Where, after the commencement of an action in rem, it is desired to arrest the property against which the action or any counterclaim in the action is brought, the plaintiff or defendant, as the case may be, shall file an affidavit, stating—

(a)where the action is brought by virtue of section 57(2) of the Act, the grounds on which it is alleged that there is a maritime lien or other charge on the property for the amount claimed;

(b)where the action is brought by virtue of section 57(3) of the Act—

(i)whether or not the ship proceeded against is the ship in connection with which the claim arose,

(ii)that in the belief of the deponent the person who would, apart from section 70 of the Act, be liable on the claim in an action in personam was, at the time when the cause of action arose, the owner or charterer, or in possession or control, of the ship in connection with which the claim arose and was also, at the time of the issue of the summons, the beneficial owner of all the shares in the ship proceeded against;

(c)the facts which render it probable that the property will be removed out of the jurisdiction of the court before the claim or counterclaim is satisfied, but it shall not be necessary to show that the property is likely to be removed immediately;

(d)in an action for wages, the nationality of the ship.

(2) Where upon the filing of the affidavit the court is satisfied with the evidence, it may, subject to paragraphs (3) and (4), issue a warrant of arrest in duplicate and, where the court is not satisfied, it may require further evidence to be adduced and may order the detention of the property for the purpose of adducing such evidence.

(3) Except with the leave of the court or where notice has been given under paragraph (4), a warrant of arrest shall not be issued in an action for wages against a foreign ship belonging to a port of a State having a consulate within the district of the court until notice that the action has been begun has been sent to the consul.

(4) Where by any convention or treaty the United Kingdom has undertaken to minimise the possibility of arrest of ships of another State, no warrant of arrest in an action in rem against a ship owned by that State shall be issued until notice of intention to ask for the ship to be arrested has been served on a consular officer at the consular office of that State in London or the port at which it is intended to cause the ship to be arrested.

(5) In a case to which paragraph (3) or (4) relates the affidavit mentioned in paragraph (1) shall state that the notice required by paragraph (3) or (4), as the case may be, has been served, and a copy of the notice shall be exhibited to the affidavit.

Service of summons or warrant in action in rem

5.—(1) Subject to paragraph (6), the summons and any warrant of arrest issued in an action in rem shall be served on the property against which it is issued, except that, where the property is freight, the summons or warrant shall be served on the cargo in respect of which the freight is payable or on the ship in which the cargo was carried.

(2) Subject to paragraph (3), service shall be effected by—

(a)affixing the summons or duplicate warrant on any mast of the ship or on the outside of any part of the ship's superstructure, or

(b)delivering the summons or duplicate of the warrant to the person who is, at the time of service, apparently in charge of the ship or other property.

(3) Service of a summons or warrant of arrest in an action in rem against freight or cargo shall, if the cargo has been landed or transhipped, be effected—

(a)by leaving the summons or duplicate warrant on the cargo, or

(b)if the cargo is in the custody of a person who will not permit access to it, by leaving the summons or duplicate warrant with that person.

(4) Service of the summons in an action in rem may be effected by any of the persons mentioned in Order 7, rule 2(b).

(5) The summons and any warrant of arrest in an action in rem may be served on a Sunday, Good Friday or Christmas Day, as well as on any other day.

(6) A summons in an action in rem need not be served on the property mentioned in paragraph (1) if the summons is deemed to have been duly served on the defendant by virtue of Order 7, rule 11.

Service of summons in action in personam

6.—(1) The summons in an action in personam may be served in any manner prescribed by these rules for the service of a default summons.

(2) Where an action in personam is commenced under rule 2(2)(a) in the court for the district in which an agent resides or carries on business, the summons shall be served on the agent.

Interveners

7.—(1) In an action in rem any person not named in the summons who claims to be interested in the property against which the action is brought or in money paid into court in the action may, with the leave of the court, intervene in the action.

(2) An application for the grant of leave under this rule shall be made ex parte by affidavit showing the interest of the applicant in the property against which the action is brought or in the money in court.

(3) A person to whom leave is granted under this rule shall thereupon become a party to the action.

(4) The court may order that a person to whom it grants leave to intervene in an action shall, within such period or periods as may be specified in the order, serve on any other party to the action such notice of his intervention and deliver such pleading as may be so specified.

(5) If the interest claimed by the intervener is not cognisable by the court, any party may apply to the court for an order transferring the action to the High Court.

Delivery of defence etc

8.  Order 9, rules 2, 5 and 9, shall apply with the necessary modifications to an Admiralty action as they apply to a default action, and if the defendant fails to deliver a defence or counterclaim within the time prescribed by the said rule 2, the plaintiff may—

(a)except where the claim is in the nature of salvage or towage, proceed under Order 9, rule 6, as if the action were a default action, or

(b)request the proper officer to set the action down for hearing,

and where such a request is made, the proper officer shall fix a day for the hearing of the action and give notice thereof to both parties.

Particulars in collision actions

9.—(1) This rule applies, unless the court otherwise orders, to any action to enforce a claim for damage, loss of life or personal injury arising out of a collision between ships.

(2) If the plaintiff's claim is stated not to exceed £500, the plaintiff in his particulars of claim and the defendant in his defence shall give the particulars mentioned in paragraph (4).

(3) In any other case the plaintiff's particulars of claim shall contain only a concise statement of the nature of his claim and the plaintiff shall, when filing his particulars of claim, and the defendant shall, within 14 days after service of the summons on him, file a document, to be called “a preliminary act”, containing the particulars mentioned in paragraph (4).

(4) The particulars referred to in paragraphs (2) and (3) are the particulars which would be required to be stated in a preliminary act if the action were proceeding in the High Court and also—

(a)what act of negligence or what breach of any navigation rule, bye-law or regulation is alleged to have been committed by those in charge of the other ship, and

(b)in the case of a defendant, the name of any ship, other than the plaintiff's ship, which is alleged by the defendant to have caused the collision or damage or with reference to which those in charge of the defendant's ship had to act.

(5) Every preliminary act filed pursuant to paragraph (3) shall be sealed by the proper officer and filed in a closed envelope, and, unless the court otherwise orders, no envelope shall be opened until every other preliminary act required to be filed in the action has been filed or all the parties to the action consent in writing to the opening of the preliminary acts.

(6) On filing a preliminary act pursuant to paragraph (3) a defendant shall give notice to the plaintiff that he has done so.

(7) Subject to paragraphs (8) and (9), any action in which preliminary acts are required shall be tried on the preliminary acts without pleadings unless the court otherwise directs.

(8) Where in an action in which preliminary acts are required the defendant has a set-off or counterclaim, he shall, in addition to filing a preliminary act, file a defence in respect of the set-off or a counterclaim.

(9) In relation to an action in which preliminary acts are required, rule 8 of this Order and Order 9, rules 5 and 9, shall have effect as if the references in them to a defence included references to a preliminary act.

Examination of witness before trial

10.  In an Admiralty action the power conferred by Order 20, rule 13, shall extend to the making of an order authorising the examination of a person on oath before the judge sitting in court as if for the trial of the action without the action having been fixed for hearing or called on for hearing.

Bail

11.—(1) The provisions of the R.S.C. with respect to the giving of bail shall apply in relation to an action in rem in a county court as they apply in relation to an action in rem in the High Court.

(2) Where the solicitor of a party to an action in rem fails to comply with a written undertaking given by him to any other party or his solicitor to give bail or pay money into court in lieu of bail, he shall be liable to committal.

Release of property under arrest

12.—(1) Except where property arrested in pursuance of a warrant of arrest is sold under an order of the court, it shall only be released—

(a)on the written request of a party at whose instance the property was arrested, or

(b)if the court so orders or if all the other parties to the action consent, on the written request of a party interested in the property.

(2) Before property is released under paragraph (1), the party requesting the release shall pay or give an undertaking to pay all the costs, charges and expenses incurred or to be incurred in connection with the arrest of the property, the care and custody of it while under arrest and its release.

Sale of property after judgment in action in rem

13.—(1) Where a judgment or order has been obtained in an action in rem, the court may, on an application made by the judgment creditor in accordance with the provisions of this rule, order—

(a)if the property to which the action relates is under arrest, that the property be sold;

(b)if the property has not been arrested, that the property be taken and sold in execution.

(2) Where at the time when the judgment or order is obtained the owners of the property are known, then—

(a)except as provided in sub-paragraph (b), an application under paragraph (1) may be made ex parte but the court may, before making an order, direct that notice be given to the owners;

(b)if the property is a British-owned ship, the judgment creditor shall file a certified copy of the ship's register and, if the name of any person not before the court appears on the register as having an interest in the ship, he shall be given notice of any application under paragraph (1).

(3) Where at the time when the judgment or order is obtained the owners of the property are unknown, then—

(a)if the owners are subsequently ascertained and the judgment creditor files a list of their names and addresses accompanied, if the property is a British-owned ship, by a certified copy of the ship's register, an application may be made under paragraph (1) on notice to every owner and, in the case of a British-owned ship, to every person appearing in the ship's register as having an interest in the ship;

(b)if the owners cannot be ascertained, the court may, on an affidavit showing grounds, allow an application under paragraph (1) to be made on notice given by advertisement or otherwise to all the owners of, and all persons having an interest in, the property to which an application relates.

(4) Any notice required to be given to a person by or under paragraph (2) or (3)(a) shall be served on him in the manner prescribed by these rules for service of a default summons.

(5) Where an order is made under paragraph (1)(b), the proper officer shall, on a request in that behalf being filed by the judgment creditor, issue a warrant of execution.

(6) Where an order is made under paragraph (1) in an action in rem against a ship, any party who has obtained judgment against the ship or proceeds of sale may apply to the judge to determine the order of priority of the claims against the proceeds of sale.

(7) Subject to paragraph (8), the proceeds of sale shall not be paid out of court except in pursuance of an order of the judge.

(8) Where the order of priority of claims against the proceeds has been determined and the parties are agreed as to the persons to whom the proceeds shall be paid and the amount to be paid to each, the registrar may make an order for payment out in accordance with the agreement.

Appraisement

14.  Where a ship is ordered to be sold or is seized under a warrant of execution, the registrar shall, before selling it, cause the property to be valued by an appraiser and the property shall not be sold for less than the appraised value except by leave of the court.

Completion of sale

15.—(1) On the completion of the sale of any property in an action in rem, the registrar shall—

(a)deliver up the property to the purchaser and, if required to do so, execute a bill of sale to him at his expense;

(b)file an account of the sale and the fees thereon, together with the certificate of appraisement signed by the appraiser.

(2) Any person interested in the proceeds of sale may inspect the account filed under paragraph (1)(b) and, if dissatisfied with any item in the account, may apply to the judge for a review of the account and thereupon Order 38, rule 24, shall apply with the necessary modifications as if the account had been taxed by the registrar.

Costs of order for sale

16.  In an action in rem the costs incurred by the plaintiff in obtaining an order for the sale of property and in the execution of the order shall be allowed and recoverable against the property.

Transfer of proceedings for sale to High Court

17.—(1) Where, pursuant to section 145 of the Act, the owner of property liable to be sold in Admiralty proceedings desires that the sale should be conducted in the High Court instead of in the county court, he may, on giving security in the sum of £100, apply to the judge ex parte in writing for an order for the transfer of the proceedings for sale to the High Court.

(2) Where an order under paragraph (1) relates to a ship which is in the custody of the court, the ship shall be retained by the registrar until the Admiralty marshal takes possession of it by order of the High Court.

Retention of money where more than one action

18.  Where more actions than one have been commenced against any property and the property has been sold, the proceeds of sale shall, unless the judge otherwise orders, be retained in court to abide the decision of the court in each action.

Reference to registrar

19.—(1) Where the defendant to a claim or counterclaim in an Admiralty action admits liability before the trial, the parties may agree that the amount to be recovered shall be assessed by the registrar with or without assessors.

(2) On the hearing by the judge of an Admiralty action the judge may, instead of giving judgment for a particular amount, give judgment settling the rights of the parties and order a reference to the registrar, with or without assessors, as to the amount to be recovered.

(3) Where the parties are agreed as mentioned in paragraph (1) or an order has been made under paragraph (2), the registrar shall proceed as if the assessment of the amount to be recovered were a question referred to him for inquiry and report, and Order 19, rule 9, shall apply with the modification that, unless any party, within 7 days after service on him of notice of the filing of the report, gives notice of an application to vary the report and of the grounds of the application, the report shall become binding on all the parties and judgment shall be entered accordingly.

(4) Nothing in this rule shall apply to a claim in the nature of salvage or prejudice the power of the registrar to hear and determine an action or matter under Order 21, rule 5.