T-5340-80
Elesguro Inc. (Plaintiff)
v.
Ssangyong Shipping Company Limited (Defend-
ant)
Trial Division, Collier J.—Vancouver, November
12 and 17, 1980.
Maritime law — Applications ex parte for service ex juris
and for a Mareva injunction — Action involves foreign parties
which entered into and allegedly breached a charterparty
outside Canada — Asset sought to be made subject to injunc
tion had nothing to do with charterparty — Whether or not
service ex juris should be permitted — Federal Court Rule
307 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
22 ( 1 ),( 2 )(i).
The plaintiff applied ex parte for orders for service ex juris
on the defendant, and for a Mareva injunction restraining the
defendant from removing a ship from the jurisdiction. The
plaintiff alleges breach of a charterparty, which breach did not
occur in Canada. The parties are foreign corporations which do
not carry on business in Canada. The vessel which the plaintiff
seeks to make subject to the injunction had nothing to do with
the charterparty. The charterparty contained an arbitration
clause whereby disputes would be referred to three persons in
New York. The question is whether or not leave should be
granted for service ex juris.
Held, the motions are dismissed. On the face of the action
there is no connection with Canada. The Court has jurisdiction
to hear claims arising out of a breach of a charterparty. It does
not necessarily follow that because there is jurisdiction in
respect of a claim, there is jurisdiction in respect of the persons
who assert the claim, or against whom the claim might be
asserted. The Supreme Court of Canada has held that the
overriding consideration must be the existence of some other
forum more convenient and appropriate for the pursuit of the
action. Even assuming there is jurisdiction in the Federal Court
there are no compelling reasons favouring it over other forums.
Nor is the fact that the defendant has brought into this
jurisdiction a transient asset, a compelling or persuasive reason
to conclude forum conveniens in favour of Canada and to
permit service ex juris. The fact that there may be no geo
graphical connection in Canada with the cause of action is just
one of the matters to be considered. The arbitration clauses
could only be a matter to be considered and weighed in respect
of service ex juris, and not in respect of the merits of granting a
Mareva injunction. Contracts providing for arbitration in a
foreign jurisdiction should not automatically debar service ex
juris.
The "Siskina" [1978] 1 Lloyd's Rep. 1, referred to. Oy
Nokia Ab v. The "Martha Russ" [1973] F.C. 394,
affirmed by [1974] 1 F.C. 410, referred to. Santa Marina
Shipping Co. S.A. v. Lunham & Moore Ltd. [ 1979] 1 F.C.
24, distinguished. Antares Shipping Corp. v. The
"Capricorn" [1977] 2 S.C.R. 422, distinguished. Santa
Maria Shipowning and Trading Company S.A. v. Hawker
Industries Ltd. [1976] 2 F.C. 325, distinguished. United
Nations v. Atlantic Seaways Corp. [1978] 2 F.C. 510,
reversed by [1979] 2 F.C. 541, distinguished. Sea Blue
Shipping & Financing Co. S.A. v. Ssangyong Shipping
Corp. Ltd. T-3231-80, distinguished.
MOTION.
COUNSEL:
J. L. Jessiman and J. W. Perrett for plaintiff.
SOLICITORS:
Macrae, Montgomery & Cunningham, Van-
couver, for plaintiff.
The following are the reasons for judgment
rendered in English by
COLLIER J.: This action and another one
(Efwind Shipping Company S.A. v. Ssangyong
Shipping Company Limited) are almost identical.
The plaintiff, in each of the actions applied, ex
parte, by notices of motion on November 12, 1980,
for the following orders:
1. Leave, pursuant to rule 307, to serve the defendant in Seoul,
South Korea; in addition, substitutional service, pursuant to
rule 310, on a shipping agent in Vancouver and on an officer
aboard the vessel BOO YONG.
2. A Mareva injunction restraining the defendant from remov
ing the vessel BOO YONG from the jurisdiction.
I dismissed the motion in each action.
At the time, I gave some very short oral reasons.
I said I would file written reasons. These are the
reasons. They will apply, with minor changes as to
the facts, in the Efwind action.
In this action, the plaintiff alleges breach of a
charterparty to the defendant, made by the plain
tiff as the owner of a vessel, the M.V. Janice L.,
for a one trip voyage from a port in South Korea
to a point in Saudi Arabia.
I set out paragraph 5 of the statement of claim:
5. The Plaintiff has performed all of the terms and conditions
of the charter on its part to be performed, including delivery of
the vessel to the Defendant and the voyage contemplated, but
the Defendant has breached the charter by failing to pay
charter hire, insurance premiums and other sums due to the
Plaintiff in the amount of $592,444.07 (United States of
America currency).
In the Efwind action the charterparty was a
time charter in respect of the vessel Tassia owned
by the plaintiff. Paragraph 5 of the statement of
claim in the Efwind action is as follows:
5. The Plaintiff has performed all of the terms and conditions
of the charter on its part to be performed, including delivery of
the vessel to the Defendant and the voyage contemplated, but
the Defendant had breached the charter by failing to pay
charter hire, insurance premiums, cost of fuel and other sums
due to the Plaintiff in the amount of $1,076,332.83 (United
States of America currency).
The plaintiffs are foreign corporations. So is the
defendant. None of them carry on business in this
country. The charterparties were not entered into
in this country. The alleged breach of the charter-
parties occurred elsewhere than in this country.
The defendant is the owner of the vessel Boo
Yong. She has nothing to do with the charterpar-
ties. She happened to come in to Vancouver to
load a cargo of grain or grain products. These
actions were then begun.
The real purpose of the motions is to obtain a
Mareva injunction, restraining the defendant from
removing the temporary asset, the Boo Yong, from
this jurisdiction.
Rule 307 provides for service of proceedings in
personam out of Canada. The Court has a discre
tion whether or not to authorize such service. That
discretion must be exercised judicially.
In the circumstances of this case, I declined to
make an order for service ex juris.
As I earlier pointed out, on the face of these
actions there is absolutely no connection or nexus
with this country. I refer to the opening words of
Lord Diplock in The `Siskina"'.
1 [1978] 1 Lloyd's Rep. 1 at 3.
... the dispute between the appellants ("the shipowners") and
the respondents ("the cargo-owners"), which the latter want to
litigate in this action brought in the High Court in England,
has no connection with this country.
Mr. Jessiman, for the two plaintiffs, relied on a
number of cases in support of his contention that
there was jurisdiction for the Federal Court to
entertain these actions. He further contended that
these were, in the circumstances, proper cases to
authorize service ex juris.
There is no doubt in my mind that this Court
has jurisdiction to hear claims arising out of a
breach of charterparty. It does not necessarily
follow, that because there is jurisdiction in respect
of a claim, there is jurisdiction in respect of the
persons who assert the claim, or against whom the
claim might be asserted. 2 Claims in respect of
charterparties have long been part of admiralty
jurisdiction, or navigation and shipping, in Canada
and in England. Paragraph 22(2)(i) of the Federal
Court Act 3 specifically assigns concurrent original
jurisdiction to the Trial Division:
22. (1) The Trial Division has concurrent original jurisdic
tion as well between subject and subject as otherwise, in all
cases in which a claim for relief is made or a remedy is sought
under or by virtue of Canadian maritime law or any other law
of Canada relating to any matter coming within the class of
subject of navigation and shipping, except to the extent that
jurisdiction has been otherwise specially assigned.
(2) Without limiting the generality of subsection (1), it is
hereby declared for greater certainty that the Trial Division has
jurisdiction with respect to any claim or question arising out of
one or more of the following:
(i) any claim arising out of any agreement relating to the
carriage of goods in or on a ship or to the use or hire of a ship
whether by charter party or otherwise;
Dubé J. affirmed the jurisdiction of this Court,
2 1 repeat, here, my views expressed in Oy Nokia Ab v. The
"Martha Russ" [1973] F.C. 394, affirmed by the Federal
Court of Appeal [l974] 1 F.C. 410, although the higher Court
did not, necessarily nor expressly, endorse my views.
3 R.S.C. 1970 (2nd Supp.), c. 10.
in respect of charterparties, in Santa Marina
Shipping Co. S.A. v. Lunham & Moore Ltd. 4 That
case, however, was not concerned with service ex
juris. The defendant was a Canadian corporation
with an office in Montreal, carrying on business as
a ship operator and charterer. There was obviously
no question as to jurisdiction in personam over the
defendant. The argument was as to whether there
was jurisdiction in the Court to entertain a claim
based on an English charterparty. The Court
upheld that jurisdiction.
Mr. Jessiman, for the plaintiffs in these cases,
relied on Antares Shipping Corporation v. The
"Capricorn" 5 . There, the plaintiff, a foreign corpo
ration, alleged it was the owner of the Capricorn.
It asserted it purchased the vessel from its former
owner, another Liberian corporation (Delmar);
that the latter had purported to repudiate the
agreement and purported to sell the Capricorn to
still another Liberian corporation (Portland).
The plaintiff brought an action in rem against
the vessel. Combined with it, was a claim in perso-
nam against Delmar and Portland.
The Capricorn came into Quebec. She was
arrested. Portland posted security to obtain its
release. The Trial Division of this Court declined
to make an order permitting service ex juris on the
two Liberian defendants, saying:
As it appears that the subject matter of this action does not
have any relation or connection with Canada the Plaintiff's
application to serve 'ex juris' is dismissed with costs.
The Court of Appeal affirmed the Trial decision.
The Supreme Court of Canada reversed the
lower Courts. Ritchie J., speaking for himself and
three others, held there was jurisdiction in the
Federal Court in respect of the particular claim.
He pointed out that the vessel had been arrested in
Canadian jurisdiction; Portland had participated
in the litigation by posting a bond and making
several applications to the Court. He held that
° [1979] 1 F.C. 24.
5 [1977] 2 S.C.R. 422.
while Portland's initial appearance had been under
protest as to jurisdiction, the giving of the bond
was a step in the cause and therefore a waiver of
the protest. As to the other defendant, Delmar, the
original owner of the vessel, it was said its sole
asset was the ship; the only fund available to
respond to judgment was now the bond in the
Court.
In all those circumstances, the majority held the
question, to which the Trial Judge ought to have
directed his mind, was whether there was any
other forum more convenient than the Federal
Court.
Ritchie J. said at page 445:
While these judgments are declaratory of the opinion held by
the Federal Court at both levels, they give no indication of the
reasons which enabled the judges to conclude that a cause of
action claiming possession of a ship which had been arrested in
Canada and for which a bond had been posted at the instance
of one of the parties defendant, had no relation or connection
with Canada, or at least not one justifying the issuance of an
order for service of the Declaration on the defendant Compa
nies outside of Canada.
I have, however, had the advantage of reading the views
expressed by the Chief Justice of this Court who has given full
reasons for reaching the same conclusion as the judges of the
Federal Court and in so doing has analyzed the record con
tained in the case on appeal and indicated the authorities upon
which he relies in disposing of this important case.
The reasons for judgment of Chief Justice Laskin relieve me
of the necessity of considering in any detail the questions raised
as to the jurisdiction of the Federal Court because I agree with
him when he says:
The only question to be determined is whether, jurisdiction in
rem being established and claims for relief inpersonam'being
properly joined, the foreign defendants may be subject to
service ex juris.
and again at pages 447-448:
In determining whether or not the Federal Court was justi
fied in refusing to exercise its discretion in the present case,
consideration must be given to the application of the doctrine of
forum conveniens, and although the Federal Court does not
appear to have given any consideration to this phase of the
matter, it appears to me, as it apparently does to Laskin C.J.,
that this is the most important question to be determined on
this appeal. The factors affecting the application of this doc
trine have been differently described in various cases, to some
of which reference will hereafter be made, and they include the
balance of convenience to all the parties concerned, including
the plaintiff, the undesirability of trespassing on the jurisdiction
of a foreign state, the impropriety and inconvenience of trying a
case in one country when the cause of action arose in another
where the laws are different, and the cost of assembling foreign
witnesses.
In my view the overriding consideration which must guide
the Court in exercising its discretion by refusing to grant such
an application as this must, however, be the existence of some
other forum more convenient and appropriate for the pursuit of
the action and for securing the ends of justice. Each such case
must of necessity turn upon its own particular facts....
The majority went on to consider the particular
facts. They found the Federal Court was, in the
circumstances, a more convenient forum than any
other.
There was a strong dissent by Laskin C.J.
The Antares 6 case is, in my view, distinguish
able on its facts. There was obvious jurisdiction, in
rem, when the Capricorn came into the jurisdic
tion and was arrested. There are not, in these two
cases before me, other acts and incidents (such as
in Antares) leaning to the taking of forum jurisdic
tion over the foreign defendant. Even assuming
there is jurisdiction in this forum (the Federal
Court) there are no compelling reasons favouring
this forum over other forums which may well have
jurisdiction. Nor, to my mind, is the fact that the
defendant has brought into this jurisdiction a tran
sient asset (the Boo Yong), a compelling or persua
sive reason to conclude forum conveniens in favour
of Canada, and to permit service ex juris.
Counsel for the plaintiff referred to two more
cases: Santa Maria Shipowning and Trading
Company S.A. v. Hawker Industries Limited' and
United Nations v. Atlantic Seaways Corporation'.
6 In 1973 a motion was made to strike out the statement of
claim on the ground the Trial Division had no jurisdiction. That
motion was dismissed: [1973] F.C. 955. That decision was
reversed by the Federal Court of Appeal: [1978] 2 F.C. 834.
The judgment of the Trial Division was restored by the
Supreme Court of Canada: [ 1980] 1 S.C.R. 553.
[1976] 2 F.C. 325. (F.C.A.)
8 [1978] 2 F.C. 510 (T.D.); reversed [1979] 2 F.C. 541.
(F.C.A.)
The Santa Maria case dealt with the question
whether the Federal Court had jurisdiction in
respect of a contract for ship repairs made outside
Canada, with breach of that contract having, as
well, occurred outside the jurisdiction. The Court
of Appeal held that the jurisdiction of the Federal
Court was not confined to matters arising within
Canada. At pages 334-335, this was said:
What the appellant contends, however (and the only conten
tion really relied on by the appellant during argument in this
Court), is that it is clear from the statement of claim that the
whole of the contractual cause of action so pleaded is geograph
ically situated outside Canada and is, therefore, not within the
jurisdiction of a Canadian court and, in particular, is not within
the jurisdiction of the Trial Division. Such argument, as I
understood it, was based on an implied limitation on the subject
matter jurisdiction of a court to subject matter arising within
the geographical limits within which the Court can exercise
jurisdiction.
Counsel for none of the parties was able to refer us to any
authority that tended one way or another on the question
whether there is such an implied limitation. Authorities con
cerning service ex juris and the recognition of foreign judg
ments would not, as it seems to me, be of much help on the
question although it is worthy of note that this Court in the
Martha Russ case ([1974] 1 F.C. 410) made it clear that it was
not deciding that appeal on a question of "jurisdiction" to
authorize service ex juris and that the decision of the Supreme
Court of Canada in Antares Shipping Corporation v. The Ship
"Capricorn" of January 30 last provided for service ex juris in
a case in which the cause of action would not seem to be situate
in Canada any more than, on the view taken by the appellant,
the cause of action in question here is situate in Canada. (The
question of the Court's "jurisdiction" in the latter case would,
as I understand it, still seem to be open for consideration.)
In the absence of any knowledge of authority directly related
to the question, I am not persuaded that admiralty subject
matter jurisdiction is subject to implied geographical limita
tions. In an admiralty cause (and, as far as I am aware, in any
other cause in any court), in the absence of express limitation,
there is no basis for implying geographical limitations on the
Court's jurisdiction other than the necessity of serving the
defendant within the Court's geographical jurisdiction unless
leave under appropriate authority is obtained to serve ex juris.
Those observations do not, in my view, materially
assist me on the question here, as to whether I
should exercise my discretion for or against service
ex juris. The fact that there may be no geograph
ical connection in Canada with the cause of action
is just one of many matters to be considered. The
lack of connection will not automatically debar
service ex juris.
In the United Nations case (an action in perso-
nam), none of the parties was Canadian, or had
any residence or business operations in Canada.
The claim was for damages for breach of a con
tract of carriage. The contract was to carry wheat
from a port in the U.S.A. to a port in Yemen. On
unloading, a part of the wheat shipment was
alleged to have been unfit. The only connection
with Canada seems to have come from the bill of
lading. It provided, in perhaps conflicting terms,
that:
2. Governing law and Jurisdiction. The contract evidenced by
this bill of lading shall be governed by Canadian law and
disputes determined in Canada by the Federal Court of Canada
to the exclusion of the jurisdiction of any other Courts.
The defendants brought a motion, pursuant to
Rule 474, for dismissal, on the ground that there
was no jurisdiction in the Federal Court. The Trial
Judge acceded to the motion. He concluded the
claim was made and governed by U.S. law, not
under any "Canadian maritime law or other law of
Canada".
The Federal Court of Appeal reversed the Trial
Judge. Le Dain J., at pages 545-546, stated the
issues as follows:
As I understand the reasons for judgment and the arguments
that were put to us, the issues on the appeal are essentially two:
(1) Does the jurisdiction in personam of the Federal Court in
respect of a cargo claim extend to a cause of action arising
outside Canada? and (2) Assuming that it does, is the claim in
the present case, in view of the provisions of clauses I and 2 of
the bill of lading, a claim that is made under or by virtue of
Canadian maritime law or other law of Canada on the subject
of navigation and shipping within the meaning of section 22(1)
of the Federal Court Act? Alternatively to their submissions on
these two issues, the appellants contend that the question of
jurisdiction should not be determined at this stage of the
proceedings because there is an insufficient basis of fact in the
material before the Court. The merits of this contention can
only be appreciated, of course, after a consideration of what the
issues necessarily imply and the extent to which they may turn
on matters of fact that are not before the Court.
The Court went on to answer issues (1) and (2) in
the affirmative. In respect of the first issue, Le
Dain J., at page 552 said:
For these reasons I am of the opinion that the jurisdiction of
the Court ratione materiae in an action in personam in respect
of a claim for damage to cargo extends to a cause of action
arising outside Canada. Whether the Court should assume
jurisdiction in a case that requires leave for service ex juris is,
of course, another question. It is a matter of discretion to be
exercised with regard to the doctrine of forum conveniens:
Antares Shipping Corporation v. The "Capricorn" [1977] 2
S.C.R. 422. In the present case the Trial Division gave leave for
service out of the jurisdiction and it is not that exercise of
discretion, as such, that is attacked by the respondents' applica
tion. The challenge is to the jurisdiction ratione materiae of the
Court. 9
As to the second issue, this was said (page 556):
In any event, I am of the opinion that the answer to the
question whether the claim is one made under Canadian mari
time law cannot depend on the extent to which foreign law will
apply. In my view, once it is determined that a particular claim
is one which falls within one of the categories of jurisdiction
specified in section 22(2) of the Federal Court Act the claim
must be deemed to be one recognized by Canadian maritime
law and one to which that law applies, in so far as the
requirement in the Quebec North Shore Paper and McNamara
Construction cases is concerned. There is no other workable
approach to the admiralty jurisdiction of the Court. To make
jurisdiction depend upon the law that will govern by operation
of the conflict of laws would create completely unpredictable
and hazardous jurisdictional dichotomies.
The United Nations case deals, as does the
Santa Maria case, with jurisdiction over certain
types of claims, not with whether jurisdiction over
certain persons should be claimed by authorizing
service ex juris.
I turn to one final case: Sea Blue Shipping &
Financing Co. S.A. v. Ssangyong Shipping Corp.
Ltd. 10 The facts in that case are, for practical
purposes, identical to those now before me. By
coincidence, the asset sought to be frozen by the
plaintiff was the same Boo Yong. I made an ex
parte order, authorizing service ex juris. I granted
a Mareva injunction for 9 days. In the interim, the
parties reached a compromise. They requested a
9 I was the judge who, on an ex parte application, gave leave
to serve ex juris in the United Nations case. The motion was
heard without, pursuant to Rule 324, personal appearance of
counsel. The affidavit material exhibited the bill of lading,
which set out the "jurisdiction" clause. While I cannot now
recall the matter, I suspect that clause influenced me in permit
ting service ex juris.
10 T-3231-80 (unreported, July 17, 1980).
consent order lifting the injunction. Without hear
ing counsel, I made the latter order. But I made
these comments (pages 2 - 3):
The defendant's vessel, the Boo Yong, happened to come in
to Vancouver. This action was begun. The application for a
Mareva injunction, as related above, was made.
At the hearing I somewhat reluctantly granted the injunc
tion. I raised with counsel for the plaintiff the question whether
there was any jurisdiction in this Court to entertain the action
brought by the plaintiff. After hearing counsel on that point, I
somewhat dubiously made the order sought, but limited the
injunction to 9 days.
On July 3, the defendant brought on a motion to set aside the
injunction. The defendant sought, as well to set aside an order
for service ex juris which I had made at the same time as I
granted the Mareva injunction.
Argument on the latter motion was deferred while the parties
tried to work out some settlement. Ultimately that was done.
Hence the request now for the consent order lifting the
injunction.
In the material filed on behalf of the defendant it was
asserted that the charterparty in respect of the Georgios con
tained an arbitration clause referring any disputes to arbitra
tion at London.
If I had known that fact on the ex parte application, I would
not have granted the Mareva injunction. I have earlier pointed
out that, on the face of the action, there was absolutely no
connection with this country. I refer to the opening words of
Lord Diplock in The "Siskina" [1978] 1 Lloyd's Rep. 1 at
page 3:
... the dispute between the appellants ("the shipowners")
and the respondents ("the cargo-owners"), which the latter
want to litigate in this action brought in the High Court in
England, has no connection with this country.
In Siskina the House of Lords went on to set aside the
Mareva injunction. The grounds were that the English courts
had no jurisdiction over the subject-matter of the action, or
over the parties, in respect of which an ex parte interlocutory
injunction had been obtained.
It seems to me now, in retrospect, that is the situation in this
case. But, as requested, the consent order will go.
In the two cases now before me, there were, in
the charterparties, standard so-called "arbitration"
or "jurisdiction" clauses. The Elesguro clause
reads:
17. That should any dispute arise between Owners and the
Charterers, the matter in dispute shall be referred to three
persons at New York, one to be appointed by each of the
parties hereto, and the third by the two so chosen; their decision .
or that of any two of them, shall be final, and for the purpose of
enforcing any award, this agreement may be made a rule of the
Court. The arbitrators shall be shipping men.
The Efwind clause is identical, except that any
dispute is referred to three persons at London,
rather than New York.
In the Sea Blue case I heard no submissions as
to the effect, if any, a similar arbitration clause
should have in respect of granting service ex juris
or a Mareva injunction. Because of those earlier
comments of mine, Mr. Jessiman advanced, on
these motions, a careful and reasoned submission
as to the weight to be given to the arbitration
clauses. He submitted, in respect of those clauses:
(a) There were not, on the facts of these two
actions, any arbitrable disputes.
(b) The matter of security for a claim (such as
Mareva injunction procedure) was different and
severable from the matters envisaged by the
arbitration procedure.
(c) The matter of security (again, such as by
way of Mareva procedure) was not within the
province of the arbitration clause or of the arbi
trators; only a court has the necessary
jurisdiction.
If these submissions, and the authorities cited in
support, had been made to me in the Sea Blue
case, I doubt I would have made the comments I
did, or have put them the way I did. It seems to me
now, in retrospect, the arbitration clauses could
only be a matter to be considered and weighed in
respect of service ex juris, not in respect of the
merits of granting a Mareva injunction. Contracts
providing for arbitration in a foreign jurisdiction
should not automatically debar service ex juris. In
any event, I did, in the present actions, consider
Mr. Jessiman's submissions in reaching my deci
sion as to whether or not I should grant service ex
juris.
In case my orders in these two suits should go to
appeal, I feel I should express my views as to the
merits or otherwise of the request for a Mareva
injunction on the facts here. The Mareva injunc-
tion is a new concept in English law. It was born in
1975. At common law, a plaintiff could not nor
mally, before judgment, restrain a resident defend
ant from removing, in order to frustrate satisfac
tion of any ultimate judgment against him, assets
from the jurisdiction. The Mareva injunction con
cept recognized that premise, but established the
principle that an English Court may, in proper
circumstances, on an ex parte application and in
advance of judgment, restrain a non-resident
defendant from removing assets from the
jurisdiction. "
The guidelines, in respect of Mareva injunc
tions, were set out by Lord Denning M.R. in the
Third Chandris case (cited earlier) as follows [at
page 189]:
(i) The plaintiff should make full and frank disclosure of all
matters in his knowledge which are material for the Judge to
know, see The Assios, [ 1979] 1 Lloyd's Rep. p. 331.
(ii) The plaintiff should give particulars of his claim against
the defendant, stating the ground of his claim and the amount
thereof, and fairly stating the points made against it by the
defendant.
(iii) The plaintiff should give some grounds for believing that
the defendants have assets here. I think that this requirement
was put too high in the unreported case of MBPXL Corpora
tion v. Intercontinental Banking Corporation, Aug. 28, 1975.
In most cases the plaintiff will not know the extent of the
assets. He will only have indications of them. The existence of a
bank account in England is enough, whether it is in overdraft or
not.
" The following is a list, not necessarily complete, of English
cases dealing with the Mareva procedure:
Nippon Yusen Kaisha v. Karageorgis [1975] 2 Lloyd's Rep.
137 (C.A.). Mareva Compania Naviera S.A. v. International
Bulkcarriers S.A. [1975] 2 Lloyd's Rep. 509 (C.A.). Rasu
Maritima S.A. v. Pertamina [1977] 2 Lloyd's Rep. 397
(C.A.) (injunction refused). The "Siskina" [1978] 1 Lloyd's
Rep. 1 (H.L.) (injunction refused—lack of jurisdiction over
subject matter of action). The "Cretan Harmony" [1978] 1
Lloyd's Rep. 425 (C.A.) (injunction set aside). Third Chan-
dris Shipping Corp. v. Unimarine S.A. (The "Genie") [ 1979]
2 Lloyd's Rep. 184 (C.A.). The "Assios" [ 1979] 1 Lloyd's
Rep. 331 (C.A.) (injunction discharged—leave to appeal to
C.A. refused). Montecchi v. Shimco (U.K.) Ltd. [1979] 1
W.L.R. 1180 (C.A.) (injunction not granted). The
"Agrabele" [1979] 2 Lloyd's Rep. 117 (injunction not grant
ed against a resident defendant). Chartered Bank v. Dak-
louche [1980] 1 W.L.R. 107 (C.A.) (injunction granted
against a technically resident defendant). The "Angel Bell"
[1980] 1 Lloyd's Rep. 632 (Q.B.).
(iv) The plaintiff should give some grounds for believing that
there is a risk of the assets being removed before the judgment
or award is satisfied. The mere fact that the defendant is
abroad is not by itself sufficient ....
(v) The plaintiffs must, of course, give an undertaking in
damages—in case they fail in their claim or the injunction
turns out to be unjustified. In a suitable case this should be
supported by a bond or security: and the injunction only
granted on it being given, or undertaken to be given.
I would add that the material in support should
show a good cause of action against the defendant,
and one falling within the jurisdiction of this
Court.
On the material before me (and bearing in mind
the motions here are ex parte) I would have, if I
had felt these to be proper cases for service ex
juris, adopted the English guidelines and issued
Mareva injunctions.
As earlier stated, the two motions are, in the
result, dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.