The "Arktis Fighter"

"Ex parte applications ought to be made only in cases where the rules so provide or on exceptional basis. In this case, I see no reason why notice of the application was not served on the defendants." — Per Choo Han Teck JC, Para 1

Case Information

• Citation: [2001] SGHC 124 (Para 1)
• Court: High Court (Para 1)
• Decision Date: 04 June 2001 (Para 1)
• Coram: Choo Han Teck JC (Para 1)
• Case Number: Adm in Rem 600223/2001, SIC 601190/2001 (Para 1)
• Area of Law: Admiralty and Shipping – Admiralty jurisdiction and arrest – Arrest of vessel – Whether ex parte application for inspection of vessel and discovery appropriate – Release of vessel in exchange for security – Amount of security payable – Form of security (Para 1)
• Counsel for the Plaintiffs: Belinda Ang SC and Chan Leng Sun (Ang & Partners) (Para 1)
• Counsel for the Defendants: Navinder Singh (Joseph Tan Jude Benny Anne Choo) (Para 1)
• Judgment Length: Not stated in the extraction (Para 1)

Summary

The dispute arose in admiralty from a claim concerning damage to steel plate cargo on board the Arktis Fighter, which the plaintiffs said they had an interest in and which had been arrested in rem. The plaintiffs obtained ex parte orders on 25 May 2001 permitting inspection of the vessel and access to documents, but the defendants challenged those orders and sought release of the vessel on the basis that the security demanded was excessive and that the ex parte procedure was inappropriate. (Para 1)

The court accepted that the orders fell within the relevant procedural rules, but held that there was no good reason why notice had not been served on the defendants. The judge emphasised that ex parte applications should be exceptional, and that the presence of the defendants’ counsel would assist the court in reaching a balanced view on inspection and preservation issues. (Para 1)

On security, the court accepted the plaintiffs’ replacement-cost figure of US$3.8 million as part of the reasonably best arguable case, but rejected the additional US$6.5 million claimed as liquidated damages because the likelihood of that liability was not adequately presented. The vessel was therefore ordered to be released upon security of US$3.8 million plus interest over three years at 8% and costs of S$350,000, with a temporary Skuld undertaking allowed only on condition that it be replaced by a local banker’s guarantee within a month. (Para 1)

Why Did the Court Say the Ex Parte Inspection Orders Should Not Have Been Made Without Notice?

The first issue was procedural: whether the plaintiffs were entitled to obtain, without notice, orders allowing inspection of the vessel and access to documents. The court accepted that the orders were within the scope of the procedural rules invoked, namely O 70 r 28 and O 29 r 2, but the judge was clear that the mere existence of power did not justify proceeding ex parte as a matter of course. The central concern was fairness and the ordinary expectation that the opposing party should be heard unless there is a genuine reason to proceed without notice. (Para 1)

"The orders of 25 May 2001 were, in my view, within the purview of these rules. However, it seems wrong to me that the application was made on an ex parte basis." — Per Choo Han Teck JC, Para 1

The judge explained that the defendants’ presence would assist the court in forming a balanced view, especially where the application concerned inspection of a vessel and preservation of documents. He noted that even where the applicant seeks to prevent the destruction or concealment of evidence, the ordinary course is still to give notice unless the rules expressly permit otherwise or exceptional circumstances exist. The court therefore treated the ex parte route as an exception, not the norm. (Para 1)

"It seems to me, therefore, that in either case, the presence of the defendant`s counsel will assist the court in forming a balanced view." — Per Choo Han Teck JC, Para 1

The judge reinforced that conclusion by referring to the general principle that ex parte applications should be confined to cases where the rules provide for them or where exceptional circumstances justify them. He found no such justification on the facts before him. The practical consequence was not to nullify the substantive purpose of inspection or preservation, but to insist that the defendants should have been given notice before the orders were sought. (Para 1)

"Ex parte applications ought to be made only in cases where the rules so provide or on exceptional basis." — Per Choo Han Teck JC, Para 1

How Did the Court Treat the Plaintiffs’ Reliance on O 70 r 28 and O 29 r 2?

The plaintiffs’ counsel submitted that the orders were properly made under O 70 r 28 and O 29 r 2, which were described in the extraction as the rules governing inspection of vessel and detention or preservation of property respectively. The court did not reject that submission outright. Instead, it accepted that the orders were “within the purview” of those rules, meaning that the subject matter of the application was one that those provisions could accommodate. (Para 1)

That acceptance, however, did not answer the separate question of procedure. The judge drew a distinction between jurisdiction to make the orders and the manner in which the application should have been brought. In his view, the existence of a procedural basis for inspection or preservation did not displace the ordinary expectation of notice. The court therefore treated the plaintiffs’ reliance on the rules as sufficient to show that the relief sought was of a recognised kind, but not sufficient to justify the ex parte process adopted. (Para 1)

"Mr Chan, counsel for the plaintiffs, submitted that the orders were properly made under O 70 r 28 and O 29 r 2 (inspection of vessel and detention or preservation of property respectively)." — Per Choo Han Teck JC, Para 1

The judge’s approach is important because it separates power from propriety. A court may have power to grant inspection or preservation orders, but still insist that the application be served unless there is a compelling reason not to do so. That distinction underpinned the court’s decision to vary the orders and to make clear that ex parte relief is not the default route in admiralty evidence-preservation applications. (Para 1)

What Were the Facts About the Arktis Fighter, the Cargo, and the Arrest?

The factual matrix was straightforward but commercially significant. The plaintiffs claimed to be persons with an interest in steel plate cargo on board the Arktis Fighter, and they sued the vessel owners for damage to about 1,100 metric tonnes of steel plates with nickel content. The vessel was arrested on 23 May 2001, and two days later the plaintiffs obtained orders allowing inspection of the vessel and access to documents with liberty to make copies. (Para 1)

"The plaintiffs are claiming to be persons who have an interest in some steel plate cargo on board the Arktis Fighter. They sued the defendant owners of the vessel for damage to the cargo consisting of about 1,100mts of steel plates (with nickel content)." — Per Choo Han Teck JC, Para 1

The defendants then applied to set aside or vary the 25 May 2001 orders and also sought release of the vessel. The dispute therefore moved from the underlying cargo damage claim to the immediate procedural and security consequences of the arrest. The court had to decide not only whether the inspection and preservation orders should stand, but also what security would justify release of the vessel. (Para 1)

"The vessel was arrested by the plaintiffs on 23 May 2001 and on 25 May 2001 the plaintiffs obtained orders from the High Court enabling them to inspect the vessel and gain access to various documents with liberty to make copies of them." — Per Choo Han Teck JC, Para 1

The extraction also records that the documents specified in the orders were handed up to the plaintiffs but later released to the defendants’ solicitors on an undertaking not to dispose of them. That detail mattered because it showed that the inspection objective had already been substantially achieved, while the preservation concern remained live. The court therefore addressed the document issue by varying the orders to require preservation pending discovery rather than by undoing the inspection already carried out. (Para 1)

"The documents specified in the orders of court of 25 May 2001 were handed up to the plaintiffs but have since been released to the defendants` solicitors on their undertaking not to dispose of them." — Per Choo Han Teck JC, Para 1

Why Did the Court Reduce the Security to US$3.8 Million and Reject the Additional US$6.5 Million?

The security question was the substantive heart of the application. The defendants argued that the vessel should be released because the plaintiffs had no basis for claiming security as high as US$10.3 million. The plaintiffs’ evidence, through Mr Geeson, was that the potential damage included US$3.8 million as the total replacement costs of the steel plate cargo and US$6.5 million as liquidated damages to third-party contractors. The court accepted the first figure but not the second. (Para 1)

"Mr Geeson had stated in his affidavit that the potential damage to the plaintiffs include the sum of US$3.8m being the total replacement costs of the steel plate cargo and US$6.5m as liquidated damages to the plaintiffs` third party contractors." — Per Choo Han Teck JC, Para 1

The judge said he was satisfied with Mr Geeson’s account of the replacement costs and found that security of up to US$3.8 million would not be unreasonable. That was the amount the court treated as supported by the evidence and within the plaintiffs’ reasonably best arguable case. The court then turned to the additional liquidated damages claim and declined to include it in the security figure because the full circumstances of the likelihood of the plaintiffs having to pay that sum were not adequately presented. (Para 1)

"I am satisfied with Mr Geeson`s account of the replacement costs of the steel plates in this case and therefore, find that a security of up to US$3.8m for it would not be unreasonable." — Per Choo Han Teck JC, Para 1

"I do not think that the security should include the liquidated damages of US$6.5m because, in my view, the full circumstances of the likelihood of the plaintiffs having to pay that sum is not adequately presented." — Per Choo Han Teck JC, Para 1

The court’s reasoning shows a disciplined approach to arrest security. It was not enough for the plaintiffs to assert a larger commercial exposure; they had to show enough about the likelihood and basis of that exposure to justify including it in the security demanded from the defendants. The judge therefore limited the security to the amount that was properly supported on the materials before him, rather than allowing the arrest to leverage an unproven higher figure. (Para 1)

How Did the Court Apply the “Reasonably Best Arguable Case” Principle to Admiralty Security?

The court expressly relied on established admiralty authority on security, citing The Moschanthy and The Polo II. The extraction records the judge’s statement that the legal principles had been “amply stated” in those cases, and that the controlling principle was that a plaintiff is entitled only to such security as would cover his reasonably best arguable case. This was the doctrinal basis for trimming the security to the amount supported by the evidence. (Para 1)

"The legal principles have been amply stated by Brandon J in The Moschanthy [1971] 1 Lloyd`s Rep 37 and in The Polo II [1977] 2 Lloyd`s Rep 115 where Brandon J stated his views as follows:" — Per Choo Han Teck JC, Para 1

"the control should be exercised on the principle that a plaintiff was only entitled to demand such an amount as security as would cover his reasonably best arguable case" — Per Choo Han Teck JC, Para 1

That principle was then applied concretely to the evidence. The court accepted the replacement-cost component because it was supported by Mr Geeson’s affidavit and was, on the judge’s assessment, not unreasonable. But the liquidated damages component was excluded because the evidential foundation for the likelihood of that liability was insufficiently developed. The result was a security figure that reflected the court’s assessment of the claim’s arguable core, not its most ambitious commercial projection. (Para 1)

The judgment also indicates that the court was attentive to proportionality in the arrest context. Security should protect the plaintiff’s legitimate claim, but it should not become an instrument of pressure beyond what the evidence can justify. By anchoring the amount to the reasonably best arguable case, the court preserved the balance between the plaintiff’s right to security and the defendant’s right not to be held to an inflated figure. (Para 1)

Why Did the Court Accept the Skuld Undertaking Only Temporarily?

The defendants proposed to provide security by way of a letter of indemnity from Skuld, their Protection and Indemnity Club. The plaintiffs resisted that proposal, arguing that Skuld was not financially stable. The court did not reject the undertaking outright, but it did not accept it as a permanent substitute for more conventional security either. Instead, the judge allowed it in the short term and required a local banker’s guarantee to be substituted within a month. (Para 1)

"Mr Chan submitted that the provision of security by way of a letter of indemnity from Skuld (the Protection and Indemnity Club of the defendants) is unacceptable because Skuld is not financially stable." — Per Choo Han Teck JC, Para 1

The judge referred to an English case, The Rio Assu (No 2), where Clarke J had to deal with a similar point. The extraction indicates that the issue there concerned whether a club undertaking could, as a matter of construction and commercial purpose, extend to successors. In this case, the judge did not need to resolve a broad doctrinal question about club undertakings in the abstract; he simply assessed the evidence before him and concluded that the Skuld undertaking was sufficient only for the short term. (Para 1)

"In the English case of The Rio Assu (No 2) [1999] 1 Lloyd`s Rep 115, Clarke J had to contend with a similar point." — Per Choo Han Teck JC, Para 1

The practical order was therefore calibrated. The court accepted the undertaking in the form of the draft presented, but only on condition that the defendants substitute a local banker’s guarantee within a month. That solution balanced the immediate need to release the vessel against the court’s concern that the security should be dependable and locally enforceable. (Para 1)

"However, on the evidence before me, I think that the Skuld undertaking should be sufficient in the short term; and I therefore order that the security be furnished by way of the letter of undertaking from Skuld, in the form of the draft presented before me, on the condition that the defendants substitute a local banker`s guarantee for it within a month." — Per Choo Han Teck JC, Para 1

What Did the Court Decide About Preservation of Documents Pending Discovery?

The document issue was not treated as a separate, free-standing discovery dispute so much as a consequence of the earlier ex parte orders. The extraction records that the documents specified in the 25 May 2001 orders had already been handed up to the plaintiffs, but were then released to the defendants’ solicitors on an undertaking not to dispose of them. The court responded by varying the orders so that the defendants’ solicitors were directed to preserve the documents pending discovery. (Para 1)

"I varied the orders of court of 25 May to the extent that the defendants` solicitors were directed to preserve the documents in their possession pending discovery." — Per Choo Han Teck JC, Para 1

This was a measured solution. The court did not undo the fact that inspection had occurred, but it did ensure that the documents remained available for the discovery process. The preservation order reflected the court’s concern that evidence should not be lost, while also respecting the procedural criticism that the original application should not have been made ex parte without notice. (Para 1)

In effect, the court preserved the evidential status quo while correcting the procedural irregularity. That approach is consistent with the judge’s broader reasoning: the court was willing to protect the integrity of the litigation process, but not at the cost of dispensing with notice where no exceptional reason had been shown. (Para 1)

How Did the Court Deal with Costs and Interest in the Security Order?

The security order was not limited to the principal amount of US$3.8 million. The court also ordered interest over three years at 8% and costs at S$350,000. The extraction indicates that the judge took into account the unchallenged statement that foreign experts would be required to testify at trial, which justified making provision for costs. (Para 1)

"I therefore ordered the release of the vessel on the provision of security in the sum of US$3.8m plus interest over three years at 8% and costs at S$350,000." — Per Choo Han Teck JC, Para 1

"In regard to costs, I had taken into account the unchallenged statement by Mr Chan that foreign experts will be required to testify at trial. Provision ought accordingly to be made for that." — Per Choo Han Teck JC, Para 1

This aspect of the order shows that the court did not treat costs as an afterthought. Instead, it recognised that the litigation would likely involve expert evidence from abroad, and that such costs should be reflected in the security required for release. The inclusion of interest over three years likewise indicates that the court was attempting to set a realistic security figure that would cover the likely duration and financial consequences of the claim. (Para 1)

Accordingly, the final security package was not merely a principal sum. It was a composite order designed to secure the claim, the likely interest burden, and the anticipated trial costs, while still excluding the unsupported liquidated damages component. (Para 1)

Which Earlier Admiralty Cases Did the Court Refer To, and For What Propositions?

The judgment referred to several English admiralty authorities to support its reasoning on notice, inspection, and security. The Mare del Nord was cited as a comparison on ex parte inspection or preservation, but the judge noted that in that case the defendants had in fact been given notice of the intended application and the affidavits were served on them. That made it less helpful to the plaintiffs as a justification for proceeding without notice here. (Para 1)

"I am mindful that a similar application in The Mare del Nord [1990] 1 Lloyd`s Rep 40 was made ex parte; but in that case the facts show that the defendants were given notice of the intended application and the affidavits were served on them." — Per Choo Han Teck JC, Para 1

The Cienvik was cited for Clarke J’s observation that it is difficult to envisage circumstances in which such an order would be appropriate otherwise than on reasonable notice. The extraction also records the broader proposition that an ex parte injunction may be the proper course only to restrain harmful acts pending a noticed application. This supported the Singapore court’s insistence that notice should ordinarily be given. (Para 1)

"It is difficult to envisage circumstances in which it would be appropriate for such an order to be made otherwise than on reasonable notice." — Per Choo Han Teck JC, Para 1

The Moschanthy and The Polo II were cited for the security principle in in rem proceedings, namely that security should cover the plaintiff’s reasonably best arguable case and should not be exercised oppressively. The Rio Assu (No 2) was mentioned in relation to the P&I Club undertaking issue. Taken together, these authorities supplied the doctrinal framework for the court’s procedural and security rulings. (Para 1)

Why Does This Case Matter for Admiralty Arrest Practice?

This case matters because it draws a clear line between the existence of procedural power and the proper use of that power. Even where the rules permit inspection or preservation orders, the court signalled that ex parte applications should be exceptional and that notice should ordinarily be given. For practitioners, that means an arrest does not automatically justify unilateral access to the vessel or documents without first alerting the other side. (Para 1)

It also matters because it illustrates how Singapore courts approach security in admiralty arrest proceedings. The court did not simply accept the largest figure asserted by the plaintiffs. Instead, it tested the evidence against the reasonably best arguable case standard and excluded a substantial liquidated damages component that was not adequately supported. That is a practical reminder that arrest security must be evidence-based and proportionate. (Para 1)

Finally, the case is useful on the form of security. The court was willing to accept a P&I Club undertaking temporarily, but only with a requirement that a local banker’s guarantee be substituted within a month. That reflects a pragmatic but cautious approach to foreign club security, especially where the opposing party questions the club’s financial stability. (Para 1)

"Security should be sufficient to cover the amount of the claim plus interest and costs on the basis of the plaintiffs` best arguable case, but should not normally exceed the value of the vessel arrested." — Per Choo Han Teck JC, Para 1

Cases Referred To

Legislation Referenced

• O 70 r 28 — inspection of vessel (Para 1)
• O 29 r 2 — detention or preservation of property (Para 1)

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN

This article analyses [2001] SGHC 124 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.