Dorie Steamship Co (the petitioners) owned the SS Dorie, which on 17 January 1918 collided with the Kamenetz Podolsk near Gibraltar and sustained damage. Despite diligent inquiry, the petitioners were unable to ascertain who the owners of the Kamenetz Podolsk were; but they stated that the Kamenetz Podolsk was now in the Gareloch, Scotland, and was thus within the jurisdiction of the Court. The petitioners have not raised an action within two years of the date of the collision, but they desired to arrest the Kamenetz Podolsk in order to enforce their maritime lien against the vessel. The petitioners were confronted by two-year time bar under s 8 of the Maritime Conventions Act 1911 (UK) (MCA), which provides:

No action shall be maintainable to enforce any claim or lien against a vessel or her owners in respect of any damage or loss to another vessel, her cargo, or freight, or any property on board her or damages for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel, whether such vessel be wholly or partly in fault, or in respect of any salvage services, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused or the salvage services were rendered and an action shall not be maintainable under this Act to enforce any contribution in respect of an over-paid proportion of any damages for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment: provided that any Court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend any such period, to such extent and on such conditions as it thinks fit, and shall if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the Court, or within the territorial waters of the country to which the plaintiff's ship belongs, or in which the plaintiff resides or has his principal place of business, extend any such period to an extent sufficient to give such reasonable opportunity.

The petitioners petitioned the Court ex parte 'to extend the period within which the petitioners may raise and maintain an action against the Kamenetz Podolsk'. They claimed that they had no reasonable opportunity to arrest the Kamenetz Podolsk.

Held: Petition refused.

The petition is premature and unnecessary. Section 8 of the MCA provides not that no action shall be raised after the expiry of two years, but that no action shall be maintainable after that time has elapsed. The word 'maintainable' postulates the existence of an action which may, however, in its course be arrested and fail: The PLM 8 [1920] P 236, 241.

There is nothing in the MCA to prevent the petitioners from raising their action, and no need, therefore, to invoke the authority of the Court to enable this to be done. Moreover, there is an obvious convenience in applying the MCA not on an ex parte application when, as here, the available information is exiguous, but when both parties are present and the Court is fully seized of the facts. The petitioners feared that, if they omitted to apply for leave now, it might be successfully maintained against them at a subsequent stage that they ought to have sooner invoked the sanction of the Court, and that the mistake, if mistake it was, might prove to be irremediable. But this apprehension is unfounded: The PLM 8.

Again, there is an obvious inconvenience in asking the Court in limine to exercise the jurisdiction conferred by the MCA, seeing that, at a subsequent date, the Court might be invited to review its own order. The mere fact that the Court has not yet formulated rules under MCA s 8 does not preclude it from exercising its jurisdiction under MCA s 8: The HMS Archer [1919] P 1.

Lord Hunter added that is not possible for a court exercising jurisdiction under the proviso of MCA s 8 to extend time on an ex parte application. Furthermore, the discretion to extend time is properly exercised by a first instance Court and not this Court, which is a Court of appeal.

Lord Anderson stated that the petitioner's application was not only premature but also incompetent. Section 8 of the MCA imposes a two-year time bar upon actions of this nature. But the proviso provides for the extension of that period in certain circumstances. The proviso consists of two branches, the first permissive - the word 'may' being used; and the second imperative - the word 'shall' being employed. The first part of the proviso seems to be applicable primarily at all events to actions in personam, where it is not proposed to use any diligence against the offending vessel; and the discretion of the judge there is entirely permissive. But in the second part of the proviso the judge must give an extension, if it is proposed to take proceedings in rem and to arrest the ship, and the judge is satisfied that the pursuer had no opportunity within the two years of arresting the offending vessel.

The phrase 'no action shall be maintainable' under MCA s 8 implies that, before the question of extending time can arise for consideration and determination, there must be an action in existence. The action which MCA s 8 seems to contemplate is the main action, not any preliminary proceeding, but the action which has for its purpose the obtaining of damages against the offending vessel or its owners. Here, there is currently no action of that sort in existence. The necessary first step under MCA s 8 is to present a petition to the Lord Ordinary on the Bills for warrant to arrest the ship, who may grant that warrant with or without conditions. The petitioners should bring their action for damages straight away as in The PLM 8; this ex parte request of along the lines of The HMS Archer is bad procedure.

Subsequently, in the Bill Chamber, the petitioners were granted warrant to arrest the ship.