The plaintiffs claimed that their cargoes vanished on the Run Fu 3, which was allegedly a sister ship of the first defendant vessel, when it capsized or sank off the coast of the Indian Ocean on 11 June 2025. The vessel's name was changed from the Run Fu 1 to the Mila, also known as the Ila. The plaintiffs sought damages for the values of their cargoes which they claim had perished as a direct result of this incident.

The plaintiffs sought security of USD 2.9 million. The first defendant argued that the Court did not have jurisdiction to hear and grant the notice of motion for security because the first defendant vessel had been arrested more than once, which was not permitted by s 8(1)(2) of the Admiralty Act 1987 (PNG) (the Act: cp art 3.3 of the Arrest Convention 1952).

Held: The preliminary issue is decided in favour of the first defendant vessel.

It should be noted that the Act came into force, not in 1987 when it received the Speaker's certification on 9 March 1987, but belatedly on 17 March 2016, when it was published in the National Gazette.

The first defendant's argument is misconceived. The first defendant vessel has never been arrested in this jurisdiction. A warrant for its arrest was issued by this Court on 19 November 2025.

Recent evidence confirms that this vessel was arrested on 19 March 2026 in Colombo, Sri Lanka, pursuant to a warrant of arrest that was issued by the High Court of Sri Lanka. That proceeding was commenced by the plaintiffs outside of this jurisdiction, which is outside of the application of our laws, including ss 8(1) and (2) of the Act.

The Court reminds itself of the application of the common law in this jurisdiction, ie, common law and equity that exist immediately before independence on 16 September 1975, as adopted under Sch 2.2 of the Constitution of Papua New Guinea; see also Ship 'Federal Huron' v Ok Tedi Mining Ltd [1986] PNGLR 5.

Security in an action in rem may be sought against the thing or the property which the Court must have control or jurisdiction over: Harmer v Bell (The Bold Buccleugh [1850] EngR 162, (1851-52) 13 ER 884; The Dictator [1892] UKLawRpPro 41, [1892] P 304.

An action in rem is a proceeding against a ship, property or a thing; it is not an action against a legal person. Without the arrest of the res, there is or cannot be an effective action in rem.

Where a vessel has not been seized and is not in the jurisdiction of a Court, the Court cannot be said to have control or jurisdiction over it, thus the complaint or the action against the vessel cannot survive or proceed further. Here, the vessel is beyond the control and jurisdiction of this Court; this Court cannot make any order over a thing that is not within its jurisdiction or control.

This may not affect the action in personam that is, or may be, pending against the second and third defendants. However, an action in personam does not exert the same requirements upon the Court to order security like an action in rem.