THE M/V MELISSA K V THE M/T TOMSK

[2015] EWHC 3445 (Admlty), Queen's Bench Division, Admiralty Court, Mr Justice Males, 27 November 2015

Admiralty - Collision - Jurisdiction - Claim form issued but not served within time - Whether court could validly exercise jurisdiction over defendant without valid service of claim form - Settlement offer accepted after expiry of time bar - Merchant Shipping Act 1995, section 190 - Civil Procedure Rules, Parts 36 and 61

On 28 April 2012 the claimants' vessel, then called Melissa K and registered in Panama and the defendants' vessel, then called Tomsk and registered in Liberia, collided in fog in the entrance to the port of Tuapse in the Black Sea as Tomsk was entering the port and Melissa K was departing. Both vessels were damaged, Melissa K more so. The P&I insurers of both vessels provided letters of undertaking (LOUs) in respect of the damage to the other vessel, in consideration of the other party's refraining from arrest. The LOU provided by Tomsk's P&I Club promised intermittent sums towards repairs and final settlement upon judgment by the English court. Melissa K's P&I insurer's LOU responded to final arbitration award or judgment by the English court. According to English law, proceedings should be brought by 28 April 2014 and the claimant would have another 12 months to serve proceedings in rem. Two consecutive six-month extensions to the two-year time bar were agreed along with a Collision Jurisdiction Agreement (ASG2). The second agreement also set a time limit for the service of the claim form by the same date, 28 April 2015. The significance of that deadline was not apparent to Melissa K's P&I insurers and solicitors, who issued but did not serve in rem proceedings on 28 April 2015 when agreement on liability failed to be reached, largely because of uncertainty as to the size of the loss of use component of Tomsk's claim. In May 2015 Melissa K accepted the offer of 50/50 liability made in March 2015 with quantum to be referred to the Admiralty Registrar. Tomsk appointed solicitors and accepted service without prejudice to its position that time had expired. It declined to consider issues of quantum.