Atlantic Shipping ( London ) Ltd. v. Captain Forever ( The )
T-1165-95
Hargrave P.
12/6/95
9 pp.
Motion to set security following re-arrest of defendant vessel -- Plaintiff charterer of vessel claiming vessel wrongfully withdrawn by owners and initially seeking damages for bunkers provided -- Plaintiff subsequently arresting vessel following news vessel placed on sale and purchase market by brokers-Plaintiff amending statement of claim to include additional security for wrongful withdrawal of vessel -- Owners of vessel contending escrow agreement in principle providing for maximum security allowable in consideration of which plaintiff refraining from arresting vessel -- Pursuant to vessel arrest, plaintiff generally entitled to security in amount sufficient to cover reasonably arguable best case -- Issue plaintiff's right to seek additional security to reflect subsequently amended statement of claim and value of reasonably arguable best case -- In re The "Hero" (1865), 167 E.R. 436 line of cases holding, in absence of contractual bar to increased security or to re-arrest as part of agreement whereby vessel released, court may increase security and allow re-arrest before judgment, but not following judgment -- As defendant lawyer not following-up with promised security pursuant to escrow agreement in principle until after vessel arrested, plaintiff having at least reasonable case no longer bound to refrain from arresting vessel in return for unmaterialized promised security -- Furthermore, escrow agreement in principle not extending to wrongful withdrawal -- Plaintiff's arrest of vessel legitimate-Procedure followed by plaintiff in seeking additional security, i.e. amending statement of claim and asking Court to consider both claims without requiring plaintiff to file caveat against release of vessel, or forcing plaintiff to arrest vessel second time, constituting practical and proper approach -- In setting security during interlocutory proceeding, court ought not try case in order to determine value of plaintiff's reasonably arguable best case, unless special circumstances existing, such as claims involving major uncertainties, or demand for exorbitant security -- No special circumstances as plaintiff's request for security reflecting fairly firm damages figures -- In event security granted proves to be excessive, defendants having remedy for wrongful demand of excessive security (The Moschanthy, [1971] 1 Lloyd's Rep. 37 (Adm. Div.)) -- Security granted with respect to both claims for bunkers and wrongful withdrawal.