The plaintiff, Betteto Frett, a real estate agent and businessman of Tortola in the Territory of the British Virgin Islands, claimed against 11 vessels for dockage, water, and electricity supplied to them during March 2006-September 2009. The plaintiff's claim arose out of the use by the 11 vessels of his marina facilities.

The defendants submitted that the plaintiff's claims were not capable of being brought under CPR 2000 as admiralty claims in rem. They argued that the claims could only come within paras (m) or (n) of this Rule. If they did so, the plaintiff could only make a claim in rem if his claim could fit it within Pt 70, which sets out the admiralty claims which may be made as claims in rem. The relevant part of r 70.2 reads as follows:

The following claims, questions and proceedings, namely - ...

(m) any claim in respect of goods or materials supplied to a ship for her operation or maintenance;

(n) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues; ...

are to be dealt with as Admiralty claims.

And r 70.3(3) reads:

In the case of any such claim as is mentioned in rule 70.2(c) to (g), (i) to (k), (m) to (p), (r) and (u), where -

(a) the claim arises in connection with a ship; and (b) the person who would be liable in a claim in personam was, when the cause of action arose, the owner or charterer, or in possession or in control, of the ship; a claim in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought against -

(i) that ship, if at the time when the claim is made the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or

(ii) any other ship of which, at the time when the claim is made, the relevant person is the beneficial owner as respects all the shares in it.

The defendants argued that, pursuant to r 70.3(3), the plaintiff could only make a claim in rem against the 11 vessels if, at the relevant time, the relevant person was either the beneficial owner or charterer of the vessels. There was no evidence that North South Yacht Vacations Ltd (North South), the yacht chartering company which had been the plaintiff’s tenant of the marina under a tenancy agreement, had owned or chartered the vessels, or had negotiated as owners of the vessels, and the claim must thus fail.

The plaintiff responded that the claim in rem arose under r 70.2(m) and (n). The vessels had been brought to the marina by their 'ostensible owner', Mr Rose. Mr Rose was a director of North South and the plaintiff had negotiated with him. The plaintiff could hardly be expected to examine the ownership papers of each vessel arriving at his marina to ensure that he was dealing with the legal owner. North South was clearly acting as an agent for the owners, and the acts of a duly authorised agent are the acts of the owner. The requirements of r 70.3 were satisfied.

Held: The plaintiff's claim is dismissed.

A claim for dockage, water, and electricity supplied to a boat founds an admiralty action intended to be covered by r 70.2(m) and (n). Such a claim is an admiralty claim in rem under the provisions of r 70.3(3) if the relevant person was the beneficial owner of the ship. For the purposes of r 70.3(3), the management of North South, who had brought the vessels in question to the plaintiff's marina, represented the owners as their agent for the purpose of satisfying the requirements of r 70.3(3). No other person stepped forward to allege that the management of North South had no authority to dock the vessels at the marina, or to contract for services and materials for the vessels.

The 11 vessels involved in this claim were brought to the marina and docked there under a tenancy agreement negotiated between the plaintiff and Mr Rose. The parties to the agreement are the plaintiff and North South. The agreement is in writing and is dated 31 March 2006. It provides for a year-to-year tenancy commencing on 1 May 2006. By this agreement, the plaintiff rented the marina to North South. The area rented included 19 docks and attached bulkheads and common area of the docks along with the building land to be used for office, maintenance, and other company facilities. The agreement also provides at cl 2.f that North South will pay the plaintiff for all charges for electricity, water, gas, telephone, and other services consumed or used at the premises. There is no provision in the agreement for any additional dockage fees to be paid by the vessels. The only provision for payment is the monthly rent to be paid by North South to the plaintiff and the share of utilities to be paid by North South.

On 7 April 2009 the plaintiff issued a claim based on the tenancy agreement against North South for arrears of rent and the cost of utilities, including electricity and water. He subsequently obtained a default judgment against North South. North South went into liquidation and the plaintiff has not been able to collect on his judgment. On 16 October 2009 the plaintiff issued these proceedings against the 11 boats that North South had docked at the marina. He did so in a series of 11 admiralty claims in rem. What he did was to claim from each of the 11 vessels a proportionate share of the amounts of rent and utilities that he had previously claimed had been owed to him by North South. The basis of his claims is a notional 'agreement' made with him by the officers of North South and intended to bind each vessel. However, he never had any conversation, far less any agreement, with any officer of North South or owner or owner's representative of any of the 11 vessels for each vessel to pay for dockage, electricity, or water. His only agreement was with North South, and it was in writing in the form of the tenancy agreement, and it obliged North South to make the payments.

While the agreement subsisted, only North South, not the plaintiff, could have charged any vessel for docking fees. While North South remained in occupation, only North South owed the plaintiff for electricity and water, not the boats. Even if the owners of the docked boats had negotiated to pay a proportionate part of the electricity and water, the payments would have had to have been made to North South, not to the plaintiff. North South, not the boats, was obliged under the tenancy agreement to pay for water and electricity. The plaintiff, as a real estate agent, should have known this.

The plaintiff's claim must flounder on the reef of lack of privity of contract between himself and the vessels or their owners. There is also the matter of his previously having obtained a judgment, unsatisfied though it is, against North South for all arrears of rent and charges for electricity and water. Any amounts previously owed to him for rent and utilities have merged into that judgment. He cannot now sue for what is in effect the same debt in a new and separate claim.