SINGAPORE Law and Practice Contributed by: Mathiew Christophe Rajoo, Probin Dass and Tan Hui Tsing, DennisMathiew
read together with Section 4 of the Insolven - cy, Restructuring and Dissolution (Prescribed Arrangements and Proceedings) Regulations 2020 carves out an exception to the commence - ment (but not the continuation) of admiralty pro - ceedings. This means that creditors will be able to file an in rem writ against a vessel, but will not be able to serve the writ or arrest the vessel. In The “Ocean Winner” [2021] 4 SLR 526, the Singapore High Court dealt with Section 64(8)(c) to (d) of the Insolvency, Restructuring and Disso - lution Act 2018, which prohibits the commence - ment of any proceedings against the company, or any execution, distress or other legal process - es against the property of the company during the automatic moratorium period, without the leave of court. In that case, the plaintiff did not obtain leave of court to file the writs against four vessels that belonged to a company under judicial manage - ment. The court found that the filing of the writs only created a statutory lien in favour of the plaintiff and merely created the security interest for the plaintiff; it did not yet invoke the admi - ralty jurisdiction. In that limited sense, the action did not substantively “commence” until service of the writs. Hence, the filing of the in rem writ crystallised the plaintiff’s security interest, which is differentiated from a typical civil action where the claimant’s right to bring their claim already exists. In this regard, the court observed that the moratorium in a scheme of arrangement was never intended by parliament to prevent a plain - tiff’s security interest from even being created, because the purpose of the scheme of arrange - ment was simply to give the company “breathing space”. The court also found that the filing of the writs was not “against the company” (pursuant to
Section 64(8)(c), IRDA) because it was an action against the res. The filing of the writs also did not constitute an “execution, distress or other legal process” under Section 64(8)(d) of the IRDA, because the filing of the in rem writ merely cre - ated the statutory lien (ie, the security interest in the ship) and did not involve an element of enforcement. 4.12 Damages in the Event of Wrongful Arrest of a Vessel The arresting party may be liable for damages when the arrest is a “wrongful arrest”. In such a case, the defendant would have to show that the plaintiff had carried out the arrest mala fide or with gross negligence so as to imply malice on the arresting party that results in losses to the defendant. If the defendant is successful in showing wrongful arrest, the warrant of arrest may be set aside and the security put up by the defendant (such as the LOU) shall be returned, and damages may be claimed against the arrest - ing party. 5. Passenger Claims 5.1 Laws and Conventions Applicable to the Resolution of Passenger Claims The LLMC 1976 as amended by the 1996 Pro - tocol governs “claims in respect of loss result - ing from delay in the carriage by sea of cargo, passengers or their luggage” (Article 1(b), LLMC 1976). Pursuant to Section 8 of the Maritime Conven - tions Act 1911, the time bar for claims against a vessel or the ship-owners for damage or loss – inter alia, for loss of life or personal injuries suf - fered by persons on board the vessel – would be two years from the date of loss or injury.
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