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Lloyd's Maritime and Commercial Law Quarterly

THE MEANING OF “CONTROL” FOR THE PURPOSE OF THE STATUTORY ACTION IN REM

Tom Ashley*

This article examines the meaning of the word “control” for the purpose of the mode of exercise of Admiralty jurisdiction. Only four reported cases have dealt with this matter. One view is that “control” really means “a legal right of control”. The alternative view is that control is a question of fact. The former approach is no doubt favoured by shipowners and was recently endorsed by courts in Singapore and Hong Kong, while the latter is kinder to aspiring in rem claimants and has the support of judicial authority from antipodean courts. This paper argues that, as a matter of construction, the latter view is correct—control should always be a question of fact. Although this interpretation raises certain practical and taxonomic concerns, none of these concerns provides a compelling reason to retreat from this view.
Two recent decisions—The Catur Samudra 1 in Singapore and The Decurion 2 in Hong Kong—turned on the meaning of the word “control” for the purpose of the mode of exercise of Admiralty jurisdiction. At the heart of the cases is the question whether determination of “control” is a strictly factual inquiry, or whether it engages legal concepts. Both courts came down unequivocally in favour of the view that “control” must exist as a legal right, as opposed to a factual state of affairs. Unfortunately, neither court gave compelling reasons for its decision—the best that the five judges involved could do was to invoke the twin talismans of “uncertainty” and unwillingness to “lift the corporate veil”, terms which certainly strike fear into the hearts of properly indoctrinated lawyers everywhere, but which are often, as here, uttered somewhat too lightly. In short, both cases exhibit an undercurrent of judicial desire to limit the availability of the statutory action in rem. But why?

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