Lloyd's Maritime and Commercial Law Quarterly
THE MEANING OF “CONTROL” FOR THE PURPOSE OF THE STATUTORY ACTION IN REM
Tom Ashley*
This article examines the meaning of the word “control” for the purpose of the mode of exercise of Admiralty jurisdiction. Only four reported cases have dealt with this matter. One view is that “control” really means “a legal right of control”. The alternative view is that control is a question of fact. The former approach is no doubt favoured by shipowners and was recently endorsed by courts in Singapore and Hong Kong, while the latter is kinder to aspiring in rem claimants and has the support of judicial authority from antipodean courts. This paper argues that, as a matter of construction, the latter view is correct—control should always be a question of fact. Although this interpretation raises certain practical and taxonomic concerns, none of these concerns provides a compelling reason to retreat from this view.
Two recent decisions—The Catur Samudra
1 in Singapore and The Decurion
2 in Hong Kong—turned on the meaning of the word “control” for the purpose of the mode of exercise of Admiralty jurisdiction. At the heart of the cases is the question whether determination of “control” is a strictly factual inquiry, or whether it engages legal concepts. Both courts came down unequivocally in favour of the view that “control” must exist as a legal right, as opposed to a factual state of affairs. Unfortunately, neither court gave compelling reasons for its decision—the best that the five judges involved could do was to invoke the twin talismans of “uncertainty” and unwillingness to “lift the corporate veil”, terms which certainly strike fear into the hearts of properly indoctrinated lawyers everywhere, but which are often, as here, uttered somewhat too lightly. In short, both cases exhibit an undercurrent of judicial desire to limit the availability of the statutory action in rem. But why?
* University of Auckland. This paper was written as part of the requirements of the LLB(Hons) degree at the University of Auckland and was supervised by Associate Professor Paul Myburgh, whose guidance the author gratefully acknowledges. The author also wishes to thank the anonymous referee for his/her comprehensive commentary on the first submitted version of this paper, and Finn Lowery for his helpful comments on an earlier draft. The usual disclaimer applies in respect of any errors or omissions.
1. The Catur Samudra [2010] SGHC 18; [2010] 1 Lloyd’s Law Rep 305 (Sing HC) (hereafter cited as “The Catur Samudra”).
2. Chimbusco Pan Nation Petro-Chemical Co Ltd v The Owners and/or Demise Charterers of the Ship or Vessel Decurion [2013] HKCA 180; [2013] 2 Lloyd’s Rep 407 (HK CA) (hereafter cited as “The Decurion (CA)”); affg [2012] HKCFI 630; [2012] 2 Lloyd’s Rep 309 (HK CFI) (hereafter cited as “The Decurion (CFI)”).
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