This was an appeal from the decision by S Mohan J in The 'Jeil Crystal' [2021] SGHC 292 (CMI1669).

The plaintiff, Banque Cantonale de Geneve, a Swiss bank which had provided trade financing to its customer in respect of a cargo shipped on the defendant's vessel, commenced an admiralty action and obtained a warrant of arrest against the Jeil Crystal, which was owned by the defendant, Jeil International Co Ltd. The plaintiff's claim was based on the fact that it was the lawful holder of the original bills of lading issued in respect of the cargo, and that the defendant had delivered the cargo without production of the original bills. However, at the time the action was commenced and the warrant of arrest obtained, the plaintiff no longer had possession of the original bills of lading. They had been sent by the plaintiff to its customer, and thereafter, switched by the defendant with a fresh set of bills of lading. This switch was allegedly effected without the plaintiff's knowledge or consent. The writ in rem was served, the vessel was arrested, and alternative security was furnished by the defendant to procure its release. Following the discovery of the true state of affairs, the plaintiff sought leave of the Court to amend its statement of claim. Instead of a claim for (mis)delivery of the cargo without production of the original bills of lading, the plaintiff put forward an amended claim for breach of contract and/or negligence, on the basis that the defendant had wrongfully switched the bills of lading without the plaintiff’s knowledge and consent, in consequence of which the plaintiff was removed as a party to the contract of carriage and its rights and interests in the cargo extinguished. The defendant cross-applied to set aside the writ and warrant of arrest and, in the alternative, to strike out the action. The defendant argued that the writ and warrant should be set aside because they were based on a non-existent cause of action. Even if the amended statement of claim could cure the defect in the writ, it could not cure the defect in the warrant of arrest.

The Judge held in favour of the plaintiff that the warrant of arrest could be upheld on the basis of the plaintiff's amended claim even though it was not originally pleaded by the plaintiff at the time of the application for the warrant of arrest. The defendant appealed.

Held: The appeal is upheld, the warrant of arrest is set aside, and the security is returned to the defendant.

The Judge's decision assumed that an amendment to the statement of claim would have a corresponding effect on both the in rem writ and the warrant of arrest. While the former is correct, the latter is not necessarily so. First, the warrant of arrest and the in rem writ are distinct. The in rem writ provides the foundation for the entire action while the warrant of arrest serves the limited purpose of obtaining pre-judgment security for the claim set out in the warrant of arrest. The applicable provisions in the Rules for writs and warrants of arrest are also different (O 6 and O 70 r 4 of the Rules). Thus, it did not follow simply because the writ was capable of being correspondingly amended, that the same conclusion must be drawn in respect of a warrant of arrest. Second, while there are express provisions in the Rules for the amendment of writs (O 20 rr 1 and 5 of the Rules), there is no equivalent for amendments of warrants of arrest. This shows that the drafters of the Rules did not contemplate warrants of arrests in admiralty proceedings as coming within the class of documents that were capable of amendment in the course of the proceedings.

Under O 70 r 4 of the Rules, an in rem plaintiff who seeks a warrant of arrest must: (a) file a warrant of arrest in Form 160 of Appendix A to the Rules; (b) procure a search in the record of caveats to ascertain whether there is a caveat against arrest in force with respect to the property to be arrested; and (c) file an affidavit containing the particulars required under O 70 rr 4(6) and (7) of the Rules, which include, among other things, the nature of the claim in respect of which the warrant is required and the nature of the property to be arrested. The applicant is also under a duty to make full and frank disclosure of material facts, just as in any other ex parte application (see The Vasiliy Golovnin [2008] 4 SLR(R) 994 [84]-[85]). This procedure is therefore essentially one in which the plaintiff seeks to persuade the Court that it is entitled to the in rem remedy of arrest. Where the plaintiff has satisfied the Court that it is indeed an appropriate case for the Court's powers of arrest to be exercised, a warrant of arrest would then be issued. The issuance of a warrant of arrest at the conclusion of that procedure represents a determination by the Court that the plaintiff is properly entitled to the relief sought. In these circumstances, there can be no doubt that a warrant of arrest is indeed an order of Court. An order of Court can only be amended pursuant to O 20 r 11 in limited circumstances, namely where: (a) there are clerical mistakes; or (b) there are errors arising from accidental slip or omission in the Court's judgment or order (see Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R) 907 [93]).

In issuing a warrant of arrest, the Court's manifest intention is to grant the plaintiff the arrest remedy for the purposes of the claim that has been verified in the supporting affidavit. This is because a warrant of arrest is issued by the court entirely on the basis of the claim as verified in the supporting affidavit filed by the in rem plaintiff in the arrest application. Where an amendment has been allowed to the statement of claim and the underlying in rem writ, that would constitute a change in the claim which the plaintiff is seeking to pursue in the in rem action. However, it goes without saying that any such amendment to the statement of claim and the in rem writ can have no effect whatsoever on the averments in the supporting affidavit. The Court's manifest intention, in issuing the warrant of arrest and allowing the plaintiff to arrest the vessel identified therein, remains premised on the original claim as verified in the supporting affidavit. Thus, notwithstanding an amendment to the statement of claim, in the absence of any clerical mistake or accidental error, there would be no basis to invoke O 20 r 11 of the Rules to amend the warrant of arrest.

For a warrant of arrest to stand, there must be some legal and/or factual basis to support the arrest of the vessel at the time of its issuance. The arrest procedure is intended to allow a plaintiff to obtain security for the claim that it seeks to pursue in the in rem action. Following an amendment to the statement of claim (and the consequential amendment to the in rem writ), the in rem plaintiff is effectively seeking to pursue a different claim in the in rem action, namely, the amended claim. Where the original claim on which the warrant of arrest is issued is abandoned altogether, there would no longer be any basis for the plaintiff to arrest the vessel to obtain security on the strength of the original claim. In such a situation, the Court must set aside the warrant of arrest and order the return of the security furnished (if any) or order the release of the vessel, as the case may be. This would be a matter of jurisdiction and not discretion.

The upshot of this decision is not that a plaintiff can never pursue an arrest of a vessel on the basis of an amended claim. In a situation where the amendment to the statement of claim is made before the issuance of a warrant of arrest, there would be no legal impediment in ensuring that the claim in the warrant of arrest reflects the amended claim. In a situation where the amendment is made after the issuance of a warrant of arrest and where the warrant of arrest has yet to be executed, it is open to the plaintiff to file fresh papers including a new affidavit verifying the amended claim together with an explanation on the circumstances which led to the amendment in order to obtain a fresh warrant of arrest. It is then for the Court hearing the fresh arrest application to determine whether a fresh warrant of arrest should be issued. Issues such as any intervening time bar and the nature of the amendment would be relevant. This case involves an amendment which completely substituted the original claim with an amended claim after the execution of the warrant of arrest. In such a situation, the warrant of arrest simply could not stand on the basis of the original claim and must therefore be set aside.