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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.
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