On 24 April 1969, the motor vessel Gravisia was damaged in a collision with the Preveze, which was being towed by the motor tug Jacob van Heemskerk. On 8 April 1971, the owner of the Gravisia, a French company, issued a writ in rem against the Preveze (first defendant) and the Jacob van Heemskerk (second defendant).

Prior to the issuance of the writ, counsel negotiated regarding security for the plaintiff’s claim. An undertaking was sent to the plaintiff’s solicitors. This provided that in consideration of the plaintiff refraining from arresting Preveze and/or the Jacob van Heemskerk and/or any other vessels in the same ownership, the signatories would pay their proportions as set out therein.

The plaintiff’s solicitors understood that the first and second defendants were represented by the same solicitors. On 3 August 1971, the plaintiff's solicitor discovered, for the first time, that the solicitors acting for the first defendant were not in a position to accept service on behalf of the second defendant.

On 6 April 1972, on an ex parte application supported by affidavits, the writ was renewed for 12 months. On 7 April 1972, without leave of the Court and before service of the writ, the plaintiff lodged an amended writ adding the names of nine other tugs belonging to the second defendant. On 2 May 1972, that writ was served on the second defendant’s tug Utrecht (one of the nine added tugs).

The affidavits stated that neither the Preveze nor the Jacob van Heemskerk had been within the jurisdiction of the Court or French territorial waters since the date of the issue of the writ. However, the Utrecht was within the jurisdiction on a considerable number of occasions between 8 April 1971 and 2 December 1971. The Preveze had been scrapped by 6 April 1972.

The second defendant asked the Court to disallow the amendment of the writ and/or set aside the order for the renewal of the writ and set aside service of the amended writ on the Utrecht.

The plaintiff argued that it had a right to the renewal of the writ under the second and mandatory limb of s 8 of the Maritime Conventions Act 1911 (UK) (the Act) (based on art 7 of the Collision Convention 1910), which was not affected by the sister-ship provisions in s 3(4) of the Administration of Justice Act 1956 (UK) (the 1956 Act).

Held: The amendments to the writ are struck out, and service on the Utrecht set aside, but the renewal of the unamended writ stands.

The plaintiff had no reasonable opportunity of serving the writ on the Jacob van Heemskerk during the currency of the writ and was thus entitled by the mandatory provisions of the second limb of the proviso to s 8 of the Act to a renewal of the writ.

Commonsense required that s 8 be applicable to proceedings under s 3(4) of the 1956 Act, since otherwise an action could be begun in rem against a sister ship without regard to the two-year limitation period or perhaps any other period. It cannot have been the intention of Parliament in 1956 when enlarging the circumstances in which an action in rem might be employed by making it available against a sister ship, to have rendered the limitation provisions of s 8 inapplicable to such enlargement. Despite the difficulties of language involved, s 8 was to be applied to proceedings against a sister ship.

Whether the Court would have allowed the writ to be amended by the addition of the Utrecht and the eight other sister ships would have depended upon whether the Court thought fit to do so under the wide discretion conferred on it by the first limb of the proviso of s 8.

In a renewal of writ case, the courts should ensure that it is only in really exceptional cases that the effective start of litigation should be yet further delayed; especially where the 12 months allowed for service extends beyond the end of limitation period: Heaven v Road & Rail Wagons Ltd [1965] 2 QB 355; Baker v Bowketts Cakes Ltd [1966] WLR 861.

If the plaintiff, very shortly after it knew for the first time that the first defendant’s solicitors were not in a position to accept service on behalf of the second defendant, had applied to the Court to issue a writ against the Utrecht, the Court would have exercised its discretion in the plaintiff's favour. The plaintiff’s solicitors had good reason for supposing that both defendants were represented by the same solicitors. As the plaintiff had adequate security, it was only concerned with the question of service, which had not seemed likely to present any difficulty. However, since the amendment was not made until 7 April 1972 (eight months from 3 August 1971) the Court would not have exercised its discretion and given leave to renew the writ.