Superior Court Rules

ORDER 64

ADMIRALTY

1. In these Rules, the expression ‘admiralty action’ means any proceeding for the determination of any of the following claims or questions:

(a) a claim or question in respect of which the High Court of Admiralty in Ireland formerly had jurisdiction;

(b) a claim for the sale of a ship or any share therein;

(c) a claim to prohibit any dealing with a ship or any share therein;

(d) a claim in respect of a mortgage of, or charge on, a ship or any share therein;

(e) a claim arising out of bottomry;

(f) a claim for the forfeiture of any ship or her tackle, apparel or furniture, or the restoration thereof after seizure, or for costs or damages in respect of the seizure or detention thereof;

(g) a claim in the nature, or arising out, of pilotage;

(h) a claim arising out of a general average act.

(i) A claim arising out of Article 1(1) of the First Schedule to the Jurisdiction of Courts (Maritime Conventions) Act, 1989;

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(j) A claim arising out of Article 1(1) of the Second Schedule to the Jurisdiction of Courts (Maritime Conventions) Act, 1989.

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2. An originating summons in an admiralty action shall be in one of the Forms Nos 1, 2 and 3 in Appendix J; and the other forms in that Appendix shall, when applicable, be used in admiralty proceedings.

3. Procedure by special summons may be adopted in the following classes of claims:

(a) a claim by a mortgagee of a ship or any share therein for the sale thereof or otherwise to enforce his security, or by a mortgagor for redemption thereof;

(b) a claim for the sale of a ship or any share therein in pursuance of the Mercantile Marine Act, 1955, section 47.

4. Procedure by special summons may be adopted by consent of all parties in any admiralty proceedings not coming within any of the classes in rule 3.

5. Proceedings in admiralty shall be heard by such Judge (in this order referred to as ‘the Judge’) as the President of the High Court may from to time assign to hear the same.

6. (1) In admiralty actions in rem, other than a claim arising under Order 64, rule 1(i) or (j), a warrant for the arrest of property which shall be in the Form No 8 in Appendix J may be issued by the Master at the instance either of the plaintiff or of the defendant at any time after the summons is issued, but subject to the provisions of rule 7 no warrant of arrest shall be issued until an affidavit by the party or his agent has been filed and the following provisions complied with:

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(a) the affidavit shall state the name and description of the party at whose instance the warrant is to be issued the nature of the claim or counterclaim, the name and nature of the property to be arrested, and that the claim or counterclaim has not been satisfied;

(b) in an action of wages or possession the affidavit shall state the national character of the vessel proceeded against, and, if against a foreign vessel, that notice of the commencement of the action has been given to the Consul or other representative of the State to which the vessel belongs, if there be one resident in Dublin, and a copy of the notice shall be annexed to the affidavit;

(c) in an action of bottomry the bottomry bond and, if in a foreign language also a notarial translation thereof shall be produced for the inspection and perusal of the Master, and a copy of the bond, or of the translation thereof, certified to be correct, shall be annexed to the affidavit;

(d) in an action of distribution of salvage, the affidavit shall state the amount of salvage money awarded or agreed to be accepted and the name, address and description of the person holding the same;

(e) the lodging of an undertaking in writing by the solicitor who applies for the issue of the warrant to pay the fees and expenses of the officer executing the warrant.

(2) In Admiralty Actions arising under Order 64, rule 1(i) or (j) a warrant for the arrest of the ship which shall be in the Form No 8 in Appendix J, may be issued by the Judge at the instance of any party at any time after the summons in such action is issued but subject to the provisions of rule 7 no warrant of arrest shall be issued until an affidavit by the party or his agent has been filed and where applicable the following provisions complied with—

(a) The affidavit shall state the name and description of the party at whose instance the warrant is to be issued, his habitual place of residence or place of incorporation (if appropriate) or principal place of business, the nature of the claim or counterclaim, the name and flag of the ship to be arrested and whether it is the flag of a Contracting State, and that the claim or counterclaim has not been satisfied.

(b) In an action for damage caused by any ship either in collision or otherwise, the affidavit shall state the particulars required by Order 64, rule 36(1) or such number of them as shall be then within the knowledge of the party seeking the issue of the warrant.

(c) In an action for salvage the affidavit shall state when, where and what acts of salvage are alleged to have been performed and who the alleged salvors are and in an action of distribution of salvage the affidavit shall state the amount of salvage money awarded or agreed to be accepted and the name, address and description of the person holding the same.

(d) In an action arising out of an agreement relating to the use or hire of any ship whether by charter party or otherwise the affidavit shall state how the agreement is alleged to have been breached or not complied with and if the agreement is in writing the affidavit shall exhibit a copy of the same.

(e) In an action arising out of an agreement relating to the carriage of goods in any ship whether by charter party or otherwise the affidavit shall state the substance of the agreement, the goods to which it relates, and if the agreement is in writing shall exhibit a copy thereof.

(f) In an action arising out of loss of or damage to goods including baggage carried in any ship the affidavit shall state the nature of the goods and their value and the extent of damage, if any, caused to the goods and how it is alleged that the loss or damage was sustained.

(g) In an action for general average the affidavit shall state how the same has arisen and how it is calculated.

(h) In an action for bottomry the bottomry bond shall be produced for the inspection and perusal of the Judge and a copy of the bond certified to be correct shall be annexed to the affidavit.

(i) In an action for towage the affidavit shall state how the claim has arisen.

(j) In an action for pilotage the affidavit shall state how the same has arisen.

(k) In an action for goods or materials wherever supplied to a ship for her operation or maintenance the affidavit shall state the goods or materials supplied and the date, place and purpose of supply of same.

(l) In an action for construction, repair or equipment of any ship or dock charges and dues the affidavit shall state the date, place and cost of such construction, repair or equipment or shall specify the nature of the charges and dues.

(m) In an action for wages of masters, officers or crew, the affidavit shall state the national character of the vessel proceeded against and how the claim has arisen.

(n) In an action for masters’ disbursements including disbursements made by shippers, charterers or agents on behalf of a ship or her owner the affidavit shall identify when, where and to whom such disbursements were made and for what reason.

(o) In an action relating to a dispute as to the title to or ownership of any ship the affidavit shall state fully the circumstances which have given rise to such dispute.

(p) In an action arising out of any dispute between co-owners of any ship as to the ownership, possession, employment or earnings of that ship the affidavit shall state fully the circumstances which have given rise to such dispute.

(q) In an action on a mortgage or the hypothecation of any ship the affidavit shall exhibit a true copy of the said mortgage or hypothecation.

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(3) If any of the documents, agreements or bonds referred to in the preceding rule are in a foreign language, a notarial translation thereof shall be produced for the inspection and perusal of the Judge and the translation thereof certified to be correct shall be annexed to the affidavit.

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7. The Judge may in any case allow the warrant referred to in rule 6(1) or rule 6(2) to issue although the affidavit therein mentioned may not contain all the required particulars and the Judge may require of the plaintiff or of his solicitor such undertaking as to damages (if any) as may seem appropriate.

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8. In admiralty actions in rem no service of the summons or warrant shall be required where the solicitor of the defendant agrees to accept service and undertakes in writing to enter an appearance and to put in bail or to pay money into court in lieu of bail.

9. In admiralty actions in rem the warrant of arrest shall be served by the Admiralty Marshal or his substitutes, and the warrant shall, after service thereof, be filed in the Central Office.

10. In admiralty actions in rem service of a summons or warrant against ship, freight or cargo on board is to be effected by nailing or affixing the original summons or warrant for a short time on the main mast or on the single mast of the vessel or other conspicuous part thereof, and, on taking off the summons or warrant, leaving a true copy thereof nailed or affixed in its place.

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11. If the cargo has been landed or transhipped, service of the summons or warrant to arrest the cargo and freight shall be affected by placing the summons or warrant for a short time on the cargo, and on taking off the summons or warrant, by leaving a true copy thereof upon it.

12. If the cargo be in the custody of a person who will not permit access to it, service of the summons or warrant may be made upon such person.

13. In an admiralty action in rem, a solicitor not entering an appearance or putting in bail or paying money into the court in lieu of bail in pursuance of his written undertaking so to do, shall be liable to an attachment.

14. In an admiralty action in rem any person not named in the summons may intervene and appear on filing an affidavit showing that he is interested in the res under arrest or in the fund in court.

15. In admiralty actions in rem where the parties have agreed to the sufficiency of the bail or other security, bail may be taken in the Central Office or before a Commissioner appointed to take bail in Admiralty.

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16. A bail bond shall not unless by consent be filed until after the expiration of 24 hours from the time when a notice containing the names and addresses of the proposed sureties and of the commissioner (if any) before whom the bail was taken shall have been served upon the adverse party or his solicitor and a copy of the notice verified by affidavit shall be filed with the bail bond.

17. An objection to the sufficiency of bail or other security being furnished or a surety shall be made by serving a notice of the objection on the adverse party or his solicitor and lodging a copy thereof in the Central Office, and shall be decided by the Judge on a motion on notice by the party tendering the bail.

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18. Property arrested in admiralty proceedings by warrant issued under rule 6(1) shall only be released under the authority of an Order of the Master and a ship arrested in admiralty proceedings by warrant issued under rule 6(2) shall only be released under the authority of an Order of the Judge and subject to such conditions as he may impose.

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19. A party at whose instance property has been arrested may before an appearance has been entered obtain an order for the release thereof by filing a notice that he withdraws the warrant.

20. A party may obtain an order for the release of any property by paying into court the sum in respect of which the action has been commenced and a sum for costs to be fixed by the Master.

21. Cargo arrested for freight only may be released by filing an affidavit as to the value of the freight, and by paying the amount of the freight and a sum for costs to be fixed by the Master into court or by satisfying the Judge that the amount of the freight has already been paid.

22. In an action of salvage the value of the property under arrest shall be agreed on, or an affidavit of value filed before the property is released, unless the Judge shall otherwise order.

23. A party desiring to prevent the release of any property under arrest shall file in the Central Office a notice in the Form No 14 in Appendix J and thereupon a caveat against the release of the property shall be entered in the book to be kept in the Central Office called the ‘Caveat Release Book.’

24. A solicitor who shall have filed a bail bond in the sum in respect of which the action has been commenced and a sum for costs to be fixed by the Master, or paid such sums into court, and, if the act ion be one of salvage, shall have also filed an affidavit as to the value of the property arrested, shall be entitled to a release for the same, unless there be a caveat against the release thereof outstanding in the ‘Caveat Release Book.’

25. The release when obtained shall be left with a notice in the proper office by the solicitor taking out the same, who shall also at the same time pay all costs, charges, and expenses attending the care and custody of the property whilst under arrest, and the property shall thereupon be released.

26. A party delaying the release of any property by the entry of a caveat shall be liable to be condemned in costs and damages unless he shall show to the satisfaction of the Judge good and sufficient reason for having so done.

27. A party desiring to prevent the arrest of any property may cause a caveat against the issue of a warrant for the arrest thereof to be entered in the Central Office.

28. For the purpose of rule 27 the party shall cause to be filed in the Central Office a notice signed by himself or his solicitor undertaking to enter an appearance in any action that may be commenced against the said property and to give bail in such action in a sum not exceeding an amount to be stated in the notice, or pay such sum into court. Such notice shall contain an address for service of the party or the registered place of business of the solicitor filing the same. A caveat against the issue of a warrant for the arrest of the property shall thereupon be entered in a book to be kept in the Central Office called the ‘Caveat Warrant Book.’

29. A party commencing an action against any property in respect of which a caveat has been entered in the ‘Caveat Warrant Book’ shall forthwith serve a copy of the summons upon the party on whose behalf the caveat has been entered or upon his solicitor.

30. Within 12 days from the service of the summons or copy thereof, the party on whose behalf the caveat has been entered shall, if the sum in respect of which the action is commenced together with the sum for costs hereinafter mentioned does not exceed the amount for which he has undertaken, give bail in such sum and a sum for costs to be fixed by the Master, or pay the same into court, and in default thereof the plaintiff may proceed with the action by default.

31. If when the action comes before the Judge he is satisfied that the claim is well founded, he may pronounce for the amount which appears to him to be due, and the payment thereof may be enforced by attachment against the party on whose behalf the caveat has been entered and by the arrest of the property if it then be or thereafter come within the jurisdiction of the court.

32. Nothing in this Order shall prevent a party from taking out a warrant for the arrest of any property notwithstanding the entry of a caveat in the ‘Caveat Warrant Book,’ but such party shall be liable to have the warrant discharged and to be condemned in costs and damages unless he shall show to the satisfaction of the Judge good and sufficient reason for having so done.

33. No commissioner shall take bail on behalf of any person for whom he or any person in partnership with him is acting as solicitor or agent.

34. In admiralty actions in rem, in case the defendant does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service the action may proceed as if such defendant had appeared.

35. In admiralty actions in rem upon default of appearance, if when the action comes before him, the Judge is satisfied that the plaintiff’s claim is well founded, he may pronounce for the claim with or without reference to a Judge or the Master, and may at the same time order the property to be appraised and sold with or without previous notice, and the proceeds paid into court, or may make such order as he shall think just.

36. (1) In actions for damage by collision (including any action for collision based upon Part II of the Jurisdiction of Courts (Maritime Conventions) Act, 1989) between vessels, unless the Judge shall otherwise order, the plaintiff shall, within seven days after the commencement of the action, and the defendant shall within seven days after appearance, and before any pleading is delivered, file with the proper officer of the Central Office a document to be called a preliminary act, which shall be sealed up and shall not be opened until ordered by the Judge, and which shall contain a statement of the following particulars:

(a) the names of the vessels which came into collision and the names of their masters;

(b) the time of the collision;

(c) the place of the collision;

(d) the direction and force of the wind;

(e) the state of the weather;

(f) the state and force of the tide;

(g) the course and speed of the vessel when the other was first seen;

(h) the lights, if any, carried by her;

(i) the distance and bearing of the other vessel when first seen;

(k) the lights, if any, of the other vessel which were first seen;

(l) whether any lights of the other vessel, other than those first seen, came into view before the collision;

(m) what measures were taken, and when, to avoid the collision;

(n) the parts of each vessel which first came into contact;

(o) the sound signals (if any) which were given and when given;

(p) the sound signals (if any) which were heard from the other vessel, and when heard.

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(2) The Judge may order the preliminary act to be opened and the evidence to be taken thereon without its first being necessary to deliver any pleadings; but in such case, if either party intends to rely on the defence of compulsory pilotage, he may do so, and shall give notice thereof in writing to the other party, within two days from the opening of the preliminary act.

37. At any stage in an admiralty action after appearance by the defendant, either party may apply to the Judge by motion grounded on affidavit for an order that the action shall proceed on any question or issue settled before the Judge and with or without pleading or further pleading.

38. When the Judge shall allow the application under rule 37, he shall at the same time order the delivery of such particulars and give such directions and make such further or other orders as he may think fit.

39. When particulars shall have been ordered as mentioned in rule 38, no matter of law or fact not disclosed by the particulars delivered shall be relied on by way of claim or defence without leave of the Judge.

40. Where the defendant in an original action of damage by collision counterclaims for damage sustained by him in respect of the same collision, if in the original action the ship of the defendant has been arrested or security given by him to answer judgment and in the counterclaim the ship of the plaintiff in the original action cannot be arrested and security has not been given to answer judgment therein the Judge may suspend the proceedings in the original action until security has been given to answer judgment in the counterclaim.

41. Money paid into court in an admiralty action shall not be paid out of court except in pursuance of an order of the Judge.

42. A party desiring to prevent the payment of money out of court in an admiralty action shall file a notice in duplicate in the Form No 16 in Appendix J and thereupon a caveat shall be entered in a book to be kept in the Central Office to be called the ‘Caveat Payment Book,’ and the duplicate shall be transmitted to the Accountant for noting.

43. The Judge may appoint assessors in any admiralty action either at the instance of any party or in case he shall deem it requisite for the due administration of justice.

44. Each assessor shall be paid such sum as may be fixed by the Judge for each day on which he shall attend, and the fees of each assessor shall be paid by the party for whom or in whose favour judgment shall be given, and shall be costs in the cause; but when damages are divided such fees shall be paid by the parties equally.

45. In an admiralty action the Judge or the Master may in such way as the Judge may think fit, obtain the assistance of accountants, merchants, engineers, actuaries, and other scientific persons, the better to enable any matter at once to be determined, and may act on the certificate of such persons.

46. (1) This rule shall apply to a reference by the Judge to the Master, whether the reference be to the Master alone or to the Master assisted by one or more merchants or other persons.

(2) Within 12 days from the day when the order for the reference is made, the claimant shall file the claim and affidavits and deliver copies thereof to the adverse party or his solicitor, who within 12 days from the day when the claim and affidavits are filed shall file his counter-affidavits (if any) and give notice of his having done so, with copies thereof, to the claimant or his solicitor.

(3) From the service of notice of filing of the counter-affidavits and delivering copies thereof, whichever shall last occur, six days only shall be allowed for filing and delivering copies of any further affidavits by either party save by order of the Master. Notice of the filing of any such further affidavit must be given by the party filing the same to the adverse party or his solicitor.

(4) Within three days from the expiration of the time allowed for filing the last affidavit, the claimant shall file in the Central Office a notice praying to have the reference placed in the list for hearing, and if he shall not do so, the adverse party may apply to the Judge to have the claim dismissed with costs.

(5) Witnesses may be produced before the Master for examination, and the evidence shall be taken down at the time by the Master, or on the application of either party, by a shorthand writer.

(6) Counsel may attend the hearing of any reference, but the expenses attending the employment of counsel shall not be allowed on taxation unless the Master shall be of opinion that the attendance of counsel was necessary.

(7) The Master may certify whether any, and what part, of the costs of the reference should be allowed, and to whom.

(8) The arrangement and regulation of the course of proceeding under each reference shall be wholly subject to the control and direction of the Master.

(9) The result of the inquiry before the Master shall be stated in a certificate signed by him, and such certificate when settled shall be engrossed, and when signed shall be filed, and thereupon such certificate shall stand confirmed unless within four days after the filing thereof a notice of motion be served to set aside or vary the same.

(10) Every such notice of motion shall specify the grounds on which it is intended to apply to set aside or vary such certificate.

(11) Where a certificate of the Master shall stand confirmed under sub-rule (9), or shall on such motion as therein mentioned be confirmed, final judgment may forthwith be entered accordingly.

47. The provisions of rule 46 shall also apply mutatis mutandis in cases where a reference is made to a Judge, and in such cases the rule shall be construed as if ‘Judge’ were substituted therein for ‘Master’.

48. In an admiralty action all or any part of the evidence may if so ordered be given by affidavit. Such affidavits shall not be printed without special order of the Judge.

49. Every commission for the appraisement or sale of property in admiralty proceedings shall, unless the Judge shall otherwise direct, be executed by the Admiralty Marshal or his substitutes; and a party or his solicitor taking out such a commission shall file an undertaking to pay the fees and expenses of the Marshal, if demanded.

50. The Admiralty Marshal shall forthwith pay into court the gross proceeds of sale of any property which shall have been sold by him and shall at the conclusion of the sale bring into the Central Office the account of sale with vouchers in support thereof for taxation by the Master.

51. Any person interested in the proceeds of sale may be heard before the Master on the taxation of the Admiralty Marshal’s account of expenses, and an objection to the taxation shall be heard in the same manner as an objection to the taxation of a solicitor’s bill of costs.

52. In admiralty proceedings any agreement in writing between the parties signed by the parties or their solicitors may, if the Master thinks it reasonable and such as the Judge would under the circumstances allow, be filed and shall thereupon become an order of court.

53. The Judge shall have power at any stage of an admiralty action to direct an early trial, and for such purpose the Judge shall have power to dispense with or abridge the time or times appointed by these Rules for the delivery of pleadings, or for doing any act upon such terms (if any) as the nature of the case requires.

54. The delays required by this Order with respect to the taking of bail in admiralty may be dispensed with by consent in writing of the parties or their solicitors.

55. In admiralty proceedings a caveat, whether against the issue of a warrant, the release of property, or the payment of money out of court, shall not remain in force for more than six months from the date thereof.

56. In an admiralty action every instrument under the seal of the High Court shall be issued on a notice filed by the parties applying for the same and shall bear the date of issue.

57. Every such instrument shall be served within 12 months after the date of issue; otherwise the service thereof shall not be valid.

58. No such instrument except a warrant shall be served on a Sunday, Good Friday, or Christmas Day.

59. Every warrant or other instrument required to be executed or served by the Admiralty Marshal shall be left by the solicitor taking out the same in the Central Office with a notice in the Form No 7 or the Form No 21 in Appendix J, Part II (whichever shall be appropriate).

60. The service of any instrument by the Admiralty Marshal shall be verified by his certificate. Otherwise, the service of any instrument shall be verified by an affidavit.

61. The powers, authorities, duties and functions formerly exercised and performed by the Admiralty Marshal shall be exercised and performed by such officer of the High Court serving in the Central Office (to be described as ‘the Admiralty Marshal’) as the officer having the management of that office shall from time to time direct, and the expression ‘Admiralty Marshal’ shall be construed accordingly.

62. (1) An application for the detention or arrest of a ship pursuant to the Ship owners Negligence (Remedies) Act, 1905, or the Merchant Shipping (Stevedores and Trimmers) Act, 1911, may be made ex parte but notice of the application shall be given, by post, telegram or otherwise, to the agent of the ship within the jurisdiction or to the solicitor for the owners or master of the ship (if such agent or solicitor be known to the applicant). Provided that the court to whom the application is made may dispense with such notice where owing to urgency or otherwise it is not practicable to give it.

(2) The court may before making such an order as aforesaid require the applicant to give an undertaking or security to abide by any order which may thereafter be made for the payment of damages sustained by the owners of, or other person interested in, the ship by reason of its detention or arrest.

(3) The amount of the security to be given in pursuance of any order for the detention or arrest of a ship shall be specified in the order, but may be varied at any time by subsequent order.

(4) The court may at any time, on good cause shown, rescind any order for detention or arrest, or order the release of the ship.

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