Centel Shipping Co Ltd (the plaintiff) was the assignee of wages due to the master and crew members of the King Coal. The plaintiff arrested the King Coal and sought to claim the right to wages under s 12A(2)(n) of the High Court Ordinance, which encompasses 'any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages)'.

The defendant owners applied to strike out the writ in rem and set aside the warrant of arrest. They argued that the plaintiff, as the assignee of the wages, did not come within the meaning of s 12A(2)(n). This subsection clearly provided that it would only include a claim made 'by a master or member of the crew'. Alternatively, the defendants sought to set aside the warrant of arrest. They argued that there was material non-disclosure in the plaintiff's ex parte application for the writ of arrest.

The plaintiff, relying on Lord Diplock's observation in The Eschersheim [1976] 1 WLR 430, 436C, submitted that s 12A(2)(n) should be construed consistently with art 1 of the Arrest Convention 1952. The plaintiff argued that a 'claimant' who claimed the 'wages of Masters, Officers, or crew' (art 1.1.m) referred to 'a person who alleges that a maritime claim exists in his favour' (art 1.4). The intention of the Arrest Convention 1952 was therefore to focus on the nature of the claim, rather than the identity of the person who could bring a claim. This interpretation would not limit a claim in relation to 'wages of Masters, Officers or crew' to be brought only by masters or crew members.

The plaintiff also submitted that a statutory right of action in rem is assignable at law and so can include assignees. Alternatively, the plaintiff proposed to amend the writ in rem to add the master and crew members as plaintiffs to comply with the requirements under s 12A(2)(n).

Held: Application granted. The judge struck out the writ in rem, set aside the warrant of arrest and refused leave to amend the writ in rem because the plaintiff's claim as an assignee did not come within the admiralty jurisdiction of the court. The judge would also have set aside the warrant of arrest on the basis of non-disclosure.

The wording in s 12A(2)(n) could not be construed to mean a claim brought by anyone. The wording 'by a master or member of the crew' in s 12A(2)(n) differed from that in the Arrest Convention 1952 and so was not, in Lord Diplock's words, 'reasonably capable of bearing that meaning'. There might or might not be good reason for this, but it was not for the court to speculate. Additionally, even if a statutory right of action in rem were assignable as a matter of law, it would not affect the construction of s 12A(2)(n), which was drafted in clear words.

On the application to amend the writ in rem, it would be unfair to the defendants to allow the application. This would enable the plaintiff to apply for a warrant of arrest without proper jurisdiction for the purposes of securing an arrest, and then to 'complete' the finding of jurisdiction after the arrest by amending the writ in rem. Moreover, there was no valid existing claim for wages because the master and crew members had already been paid and had assigned the debt to the plaintiff.

Finally, the plaintiff did not disclose facts that were relevant to the judge’s exercise of discretion as to whether to grant the writ of arrest. There was thus material non-disclosure in the ex parte application for the warrant of arrest.