On 10 March 1995, the pursuers, Interatlantic (Namibia) (Pty) Ltd, arrested the vessel Afala for agency services and incurred disbursements as agents for the defenders, Okeanski Ribolov Ltd, on their instructions in respect of two vessels owned by the defenders. Jurisdiction was established by virtue of an arrestment executed against the defenders' vessel Aktinia.

A motion had been enrolled by third parties, Bourgwells Ltd of London, who claimed to be the owners of the Afala, for the recall of the arrestment of the Afala on the following grounds. First, the vessel was not competently arrested because the defenders were no longer the owners of the vessel at the date of arrestment; second, the arrestment was incompetent and inept in terms of s 47(1) of the Administration of Justice Act 1956 (UK) (the Act) (based on art 3 of the Arrest Convention 1952):

no warrant issued … for the arrest of property on the dependency of an action … shall have effect as authority for the detention of a ship … in the case of a warrant to arrest on the dependence of an action unless either (a) the ship is the ship with which the action is concerned, or (b) all the shares in the ship are owned by the defender against whom that conclusion is directed.

Third, the prior arrestment afforded ample security for the debt alleged to be due by the defenders to the pursuers.

Held: The arrestment of the Afala was recalled.

The third argument of the third parties was rejected for two reasons. First, the documents regarding the valuation of the Aktinia did not appear to be from a professional valuer and did not substantiate the submission. Second, the submission was not one which it lay in the mouth of the third parties to advance. It was only of relevance if at the time of the arrest the vessel remained in the ownership of the defenders and did so now.

The third parties' first argument was also rejected on the basis that there was no sufficient material before the Court from which it could be positively asserted that on 10 March 1995 ownership of the vessel had already passed to the third parties. However, the documentation demonstrated that the third parties had title and interest to contend that the arrestment of the vessel was inept.

Dealing with the third parties' second argument, the Court applied The Banco (CMI2156), where it was held that the Arrest Convention 1952 makes it clear that only one ship of the same owner may be arrested. The Act was passed to enable the United Kingdom to ratify and comply with the international obligations accepted by States that became parties to the Convention. The purpose of restricting the right to arrest to one ship has been carried into effect and was properly to be deduced from the reference in s 47(1) of the Act to 'a ship', which ship might either be that described in para (a), the offending ship, or that described in para (b), a ship wholly owned by the defenders. Accordingly, the arrestment was inept since a ship which was wholly owned by the defenders, the Aktinia, had already been arrested on the dependence in the present action and that ship remained subject to that arrestment on 10 March 1995.

The pursuer submitted that the Act had not removed the common law right, which had existed prior to the passing of the Act to arrest more than one ship on dependence of an in personam action, such as here. It was held that any arrestment on the dependence of an action which falls within the definition of a maritime claim in Pt 1 of the Act or is a claim to which s 47(2) of the Act (based on art 1.1 of the Arrest Convention 1952) applies, is restricted to one ship owned by the defendant. The effect of s 47(1) of the Act is not to supersede the common law rights of a pursuer in relation to arrestment on the dependence of actions for such claims, but merely to modify them after the commencement of the Act.