The plaintiff was the widow of the master of the Artisan. She claimed damages under Lord Campbell's Act (UK) in respect of the death of her husband through a collision on 20 February 1917 between the Artisan and the defendants' Espanoleto.

The Espanoleto for the first time came within the jurisdiction on 24 October 1918. On 25 October 1918, the owners of the Artisan arrested the Espanoleto and issued a writ against the defendants. On 20 November 1918, in that action, an undertaking to appear was given and consent made to the vessel's release.

On 3 December 1918, instructions to the solicitors for the present plaintiff in her action were given. It is said that there is a letter written a week or two earlier instructing them that there would be a claim, but an affidavit shows that the solicitors received the instructions on 3 December to present the claim, and they then requested that the name and address of the plaintiff should be cabled to them to enable them to issue the writ. That information was obtained on 13 December 1918. But in the meantime, on 11 December 1918, the Espanoleto left the jurisdiction.

The plaintiff issued her writ in rem on 13 December 1918. It was not served as the Espanoleto had left the jurisdiction. No warrant of arrest was applied for. The writ was not renewed within twelve months in accordance with O 8 r 1. No application for renewal was made until 19 March 1920, when the Espanoleto entered the jurisdiction. Renewal of the writ was applied for and obtained, and the warrant of arrest granted on that day. On the following day conditional appearance was entered, and an undertaking to put in bail given.

The defendants moved to set aside the writ, the renewal of the writ, the warrant of arrest, and to discharge the undertaking to put in bail. The defendants raised the following grounds: (a) a writ in rem cannot be issued unless at the time of issue the res is within the jurisdiction; (b) s 8 of the Maritime Conventions Act (the MCA), under which actions are not maintainable unless brought within two years, contemplates that proceedings should be commenced by arrest; and (c) if the writ was good the plaintiff was not entitled to a renewal of it, as by that time two years had elapsed from the date of the cause of action, and under MCA s 8 the claim was statute barred.

Held: Motion dismissed.

The Court rejected the defendants' first ground. Although a writ in rem cannot be served until the res comes within the jurisdiction, there is no reason why the writ cannot be issued beforehand.

The defendants also argued that MCA s 8 does not, in respect of loss of life claims, repeal the one year's limitation prescribed by Lord Campbell's Act. The court rejected this argument: The Caliph [1912] P 213.

The Court also rejected the defendants' contention that MCA s 8 contemplates that proceedings should be commenced not by issuing a writ but by arrest. Section 8 of the MCA relates to proceedings in personam as well as to proceedings in rem. It is an English statute. Under English law, proceedings are commenced by writ: O 1 r 1 and O 2 r 1 of the Rules of the Supreme Court.

The real issue was whether the plaintiff was entitled to a renewal of the writ, the twelve months having expired. The original writ was issued within two years, but it was not renewed within the proper time. The court has power to extend the time and to give leave to renew: see eg Doyle v Kaufman (1877) 3 QBD 7 (Doyle); Smallpage v Tonge (1886) 17 QBD 644 (CA) (Smallpage); Hewett v Barr [1891] 1 QB 98 (CA) (Hewett). Whether leave should be granted after the time has expired must depend, like every other question of granting an extension of time, upon the circumstances of the particular case. In general, leave will not be granted if, but for the enlargement of time, the plaintiff's claim would be barred by a statute of limitations: Doyle; Smallpage 648; Hewett. Generally, the court must not by renewal deprive a defendant of an existing right to the benefit of a statute of limitations. But s 8 of the MCA is a limitation section of a very peculiar kind, for it contains a proviso unknown to any other statute of limitations; in one event - namely, if there has not been any reasonable opportunity of arresting the defendant vessel within the period - it directs the extension of the limited period of two years, and further gives the Court power to extend it on any other sufficient grounds.

Thus, when an application to extend the time for the renewal of a writ in an action which comes within s 8 is made, the matter is not to be disposed of merely by saying that the two years have elapsed and the claim is statute-barred and no renewal can be granted. The application to renew must be considered on its merits, and the Court must inquire whether the circumstances are such that the Court would give leave to issue a writ, notwithstanding that the time had expired.

The question is whether, in these circumstances, first, the case comes within the obligatory part of the proviso, and, secondly, if it does not, should the Court's discretion be exercised in favour of the plaintiff? It is unclear whether the case falls within the obligatory part of the proviso, because it is unclear whether the plaintiff had a reasonable opportunity to arrest the ship. In any case, if the plaintiff had applied for leave to issue a writ in March 1920, the Court would have granted it. Therefore, the plaintiff's writ should be renewed. The Court granted an extension of time.