On 20th March 1984 the owners of the ship Daien Maru No. 18 issued a writ in rem in the High Court of Singapore against charterers of the ship claiming (inter alia) possession of the ship. On the same day the owners arrested the ship. On 26th March members of the crew filed a caveat against the release of the ship, and on 30th March issued a writ in rem against the charterers claiming wages, subsistence allowance and passage money home. The owners entered an unconditional appearance and on 25th May summary judgment was entered against them1.

On 29th May the owners, as plaintiffs in the suit against the charterers, filed a writ of release, but the caveators in that suit (including the members of the crew) refused to withdraw the caveats. On 15th June the owners were granted an order for release of the ship. On 25th June the crew members arrested the ship. In proceedings before Thean, J., the owners applied for discharge of the warrant.

The case turned entirely on the right of the crew members to arrest the ship after having obtained judgment on liability against the owners, and, in that context, whether the High Court of Singapore should follow Mocatta, J,’s decision in 1974 in The Alletta 2. Thean, J., held that in principle arrest should be available as a method of execution, and further that the authority on which Mocatta, J., had relied in The Alletta—The Point Breeze 3—was based on the inability to rearrest a ship released on bail.

Looking at principle, the learned judge saw the matter as a question of the effect of the merger of the cause of action in the judgment. He saw as “incontrovertible” the propositions that (i) an action in rem is an action against the res; (ii) if no appearance is entered by the defendant, recovery is limited to the res; and (iii) if appearance is entered the action continues in rem and in personam. “It must follow” said the learned judge “that the judgment can be enforced against the res by a remedy in rem—the procedure of arrest”. If that were not so, the judge continued, the judgment would not operate against the res and the only recourse against the res would be by way of execution of a judgment in personam. This, thought the judge, “extremely strange” and “untenable”.

It did not follow from the merger of cause of action and judgment that the right to security was lost4. Arrest, said Thean, J., is a matter of procedure with the object of security that the judgment be satisfied; and it would be “extremely odd that the right to security in a ship which arises from an action in rem against the ship and the arrest thereof which is a remedy to provide for such security should be lost or extinguished once final judgment is pronounccd …”. Further, if the right to arrest was lost by judgment, the crew members’ maritime lien would be extinguished or discharged “by such judgment in the same action instituted to enforce it”.