Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 122
P783/11	OPINION OF LORD EMSLIE in the Petition of FISH & FISH LIMITED Petitioners; for An order under section 27 of the Civil Jurisdiction and Judgments Act 1982 ­­­­­­­­­­­­­­­­­________________

Petitioners: Howie, Q.C.; Hawkes; Brodies, LLP

First Respondents: Martin, Q.C.; Walker; Balfour + Manson LLP

29 July 2011

Introduction

[1] In these Scottish proceedings the petitioners, a company based in Malta, seek warrant to arrest a ship on the dependence of an action which they have raised before the High Court of Justice in England. In the relevant Particulars of Claim they describe themselves as a company engaged in the aquaculture business and as authorised by the International Conference for the Conservation of Atlantic Tunas ("ICCAT") to operate a fish farm for bluefin tuna situated offshore at Malta. In that connection, they purchase live tuna from fishermen participating in the authorised bluefin tuna fishery in the Mediterranean Sea, and thereafter transport the fish to the fish farm in floating cages.

[2] The compearing respondents Sea Shepherd UK ("the first respondents") are a charitable company limited by guarantee, and have their principal office in London. They are the registered owners of the former fishery patrol vessel "Steve Irwin" currently lying in Lerwick Harbour. In the action now pending south of the border, the petitioners seek payment from the first respondents and two associated defendants of some €760,148, together with interest and legal costs, in respect of loss and damage arising from an incident in the Mediterranean Sea on 17 June 2010 in which the vessel "Steve Irwin" and her crew were directly involved.

[3] As described in accounts and other documents bearing to emanate from the first respondents, the second respondents (Sea Shepherd Conservation Society, based in the USA) are an international organisation for whose benefit the first respondents provide funding and support. The Chief Executive of the second respondents is one of the three directors and trustees of the first respondents. In particular, the first respondents claim to provide significant funds to assist in the second respondents' campaigns around the world, including "...wages for crew and funding repairs for our ships the 'Steve Irwin', the 'Bob Barker' and the 'Ady Gil' based in Australia/Antarctica and the 'Yoshka' based in Galapagos". For the year ended 30 June 2010, the primary objective of the first respondents is described by the trustees as "...the provision of funds to support the aims and objectives of our international organisation the Sea Shepherd Conservation Society", and in the same year expenditure on Boat maintenance, Crew fees and expenses and Wages and salaries totalling £57,975 may be compared with a principal outgoing of £151,647 on Grants and donations.

[4] On the strength of the same documentation the third respondent (Captain Paul Watson, the master of the "Steve Irwin") appears to be listed as another of the first respondents' directors and trustees. In an open newsletter "...from the bridge of the 'Steve Irwin' in Lerwick" (posted on the internet on or before 20 July 2011), the third respondent calls for public assistance "...to free our flagship vessel the 'Steve Irwin'". Using the first person plural throughout, the third respondent makes specific reference to participation in the incident on 17 June 2010 to which the petitioners' English proceedings relate, to the detention of the vessel in Lerwick on 15 July 2011, and to the financial and practical prejudice which "Sea Shepherd" might thereby be expected to sustain.

[5] A key "Sea Shepherd" campaign at present is to pursue and expose those responsible for illegal fishing practices by which the bluefin tuna is allegedly threatened with extinction worldwide. "Unregulated and unlicensed poachers" appear to be principal targets, and according to "Sea Shepherd News" posted by the third respondent on the internet from the Gulf of Sidra, off the Libyan coast, on 14 June 2010, "...our interest is capturing poachers". This newsletter predated the incident of which the petitioners complain by only three days.

[6] According to the Particulars of Claim filed by the petitioners in the English action, they were on 17 June 2010 engaged in transporting live bluefin tuna in cages from Libyan waters to Malta using the vessels "Cesare Rustico" and "Rosaria Tuna". The fish had been purchased by the petitioners and belonged to them. The incident which then occurred, and the basis of the petitioners' current claim, are thereafter set forth as follows:-

"6. At about 1300 that day, the 'Steve Irwin' arrived at the cages and the Master of the vessel sought information from the Claimant's vessels as to the fish. The Master of the 'Cesare Rustico' replied that the catch of 64 tonnes had all necessary legal documents.

7. At about 1500, a small craft was deployed by the 'Steve Irwin' and began circling the cages. Shortly afterwards the 'Steve Irwin' rammed one of the cages, endangering the lives of the Claimant's staff, who were on the cage. Those on board the 'Rosaria Tuna' attempted to defend the staff and the cage by turning the 'Steve Irwin' away. The crew of the 'Steve Irwin' responded by throwing liquid-filled glass bottles at the Claimant's diver and at crew members on board the 'Rosaria Tuna'. The diver was also shot at using a rubber bullet.

8. After this initial attack, divers from onboard the 'Steve Irwin' dived into the cage and tore open the netting, releasing the Claimant's fish into the sea. About 600 fish weighing about 33 tonnes were released.

9. The aforesaid attack on the vessels and cages belonging to the Claimant and the release of the Claimant's fish constituted a trespass to the Claimant's property and/or a conversion of the fish and was directed and/or authorised and/or carried out by the Defendants, their servants or agents.

10. By reason of the said trespasses and/or conversions, the Claimant has suffered loss and damage and incurred expense.

PARTICULARS OF LOSS AND DAMAGE

1	Cost of tuna: 33,000kg X €10	€330,000
2	Loss of profit (as set out in Schedule 1)	€358,248
3	Cost of destroyed cage & accessories	€ 45,000
4	Repairs & replacement of polyethylene cage	€ 15,000
5	Wasted hire for 'Cesare Rustico'	€ 11,900
	TOTAL	€760,148"

The present proceedings

[7] The petitioners now claim entitlement to arrest the vessel "Steve Irwin" in Scottish waters on the dependence of their English claim. Section 27 of the Civil Jurisdiction and Judgments Act 1982 provides inter alia as follows:

"Provisional and protective measures in Scotland in the absence of substantive proceedings

27(1) The Court of Session may, in any case to which this subsection applies -

(a) subject to subsection (2)(c), grant a warrant for the arrestment of any assets situated in Scotland:.....

(2) Subsection (1) applies to any case in which -

(a) proceedings have been commenced but not concluded....in England and Wales or Northern Ireland;

(b) the subject matter of the proceedings is within the scope of ....[Article 1 of Council Regulation (EC) No.44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters]; and

(c) in relation to [paragraph (a)]....of subsection (1), such a warrant could competently have been granted in equivalent proceedings before a Scottish court;

.....".

[8] At an ex parte hearing on 15 July 2011, Lord Mackay of Drumadoon granted warrant for arrestment in terms of the prayer of the petition, and on the same day the "Steve Irwin" was duly arrested by messengers-at-arms within Lerwick Harbour where she then lay. In considering, for the purposes of section 27(2)(c) of the 1982 Act, whether such a warrant should or should not be granted, his Lordship was mindful of the statutory restrictions applying to the arrestment of ships by virtue of section 47 of the Administration of Justice Act 1956 (as amended), and also of the restrictions governing interim diligence in general under inter alia sections 15A to 15K of the Debtors (Scotland) Act 1987 (again as amended). After hearing argument, however, he was satisfied that the petitioners' claim was of a nature and strength to overcome all such restrictions, and that it would in addition be reasonable to grant the order sought. On the other hand, since the hearing had taken place on an ex parte basis in terms of section 15E of the Act of 1987, he appointed a further hearing to take place under section 15K of that Act at which the respondents or any of them could, if so advised, seek to have the warrant and/or the consequent arrestment recalled or restricted.

[9] That further hearing has now taken place before me in the Vacation Court, with both the petitioners and the first respondents represented. There was no independent appearance for either the second or the third respondents. In seeking recall of the arrestment of the "Steve Irwin" and its underlying warrant, the first respondents contended (by reference to section 27(2)(c) of the 1982 Act) that in equivalent Scottish proceedings arrestment of the "Steve Irwin" could not competently have been sought or granted. In particular, the petitioners' English claim disclosed no proper basis for holding the first respondents, as mere owners of the vessel, liable in damages for the incident of 17 June 2010; in any event the claim did not fall within any of the categories listed in section 47(2) of the 1956 Act, thus rendering arrestment of the vessel incompetent; the petitioners had moreover failed to make out a prima facie case to justify interim diligence under section 15E or 15K of the 1987 Act; and esto the validity of the warrant and arrestment could not be impugned on technical grounds, it was in all the circumstances unreasonable for the order of 15 July to have been made or to remain in effect.

[10] In this connection it was common ground between the parties that, if the order of 15 July was to be affirmed, the petitioners' claim must survive scrutiny under both section 47 of the Act of 1956 and also section 15K of the Act of 1987. For their part, however, the petitioners maintained that their claim fell squarely within the scope of paragraph (a) and/or (f) of section 47(2) of the former statute; that it was properly laid against all of the respondents; and furthermore that the interim diligence which had been granted in their favour was fully compliant with all requirements of the statute of 1987.

[11] Section 47 of the Administration of Justice Act 1956 provides inter alia as follows:

"Arrest of ships on the dependence of an action

47(1) Subject to the provisions of this section..., no warrant issued after the commencement of this Part of this Act for the arrest of property on the dependence of an action...shall have effect as authority for the detention of a ship unless the conclusion in respect of which it is issued is appropriate for the enforcement of a claim to which this section applies, and, in the case of a warrant to arrest on the dependence of an action, unless -

(a) the ship is the ship with which the action is concerned, or

(b) all the shares in the ship are owned by the defender against whom that conclusion is directed.

(2) This section applies to any claim arising out of one or more of the following, that is to say -

(a) damage done or received by any ship;

....

(f) loss of, or damage to, goods carried in any ship;

...."

[12] So far as relevant for present purposes, section 15E of the 1987 Act provides:

"15E Grant of warrant without a hearing

(1) The court may, if satisfied as to the matters mentioned in subsection (2) below, make an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act.

(2) The matters referred to in subsection (1) above are -

(a) that the creditor has a prima facie case on the merits of the action;

(b) that there is a real and substantial risk that enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of -

(i) the debtor being insolvent or verging on insolvency; or

(ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets,

were warrant for diligence on the dependence not granted in advance of such a hearing; and

(c) that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so.

(3) The onus shall be on the creditor to satisfy the court that the order granting warrant should be made.

(4) Where the court makes an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act, the court shall -

(a) fix a date for a hearing under section 15K of this Act;.....

....".

Section 15K(9) repeats the stated requirements for a valid grant of interim diligence. Subsection (8) provides for the recall or restriction of any warrant or executed arrestment if the court is no longer satisfied that these requirements are met, and subsections (5), (6), (7), (11) and (12) further provide for recall or restriction (with or without conditions) where the court deems a warrant or executed arrestment to be invalid, incompetent, irregular or ineffective. In all cases, as under section 15E, the onus of justifying interim diligence rests on the creditor in terms of subsection (10).

[12] In the paragraphs which follow I propose, for convenience, to deal with each of the disputed issues in turn.

The proper defendants

[13] In support of his motion for recall of the arrestment and its underlying warrant, senior counsel for the first respondents founded strongly on the brevity, and in his submission the inadequacy, of the petitioners' Particulars of Claim. One aspect of the problem concerned the identity of the party or parties against whom a claim in respect of the incident of 17 June 2010 could properly be brought. The first respondents were indisputably the owners of the "Steve Irwin", but that would not of itself render them liable in damages for an incident with which they had no other connection. According to art.3 of the petition, the vessel was operated by the second respondents and the third respondent was her captain. Against that background, the assertion in art. 4 that the vessel was "owned and operated by the first respondents" could not be understood, and the confusion was compounded by the terms of para. 3 of the Particulars of Claim south of the border. Both the second and third respondents appeared to be based in the USA; the petitioners might have difficulty convening them as defendants in England; and the Particulars of Claim were silent as to how the first respondents should be held liable for their acts and omissions.

[14] It is fair to say, however, that this submission for the first respondents took no account of any of the materials referred to at paragraphs [3], [4] and [5] above. Founding strongly on these materials, as was said to be normal and legitimate in proceedings of this kind in the early stages of contested litigation, the petitioners' position was that the close inter-relationship of the various defendants, and more importantly the role of the first respondents and their vessels, including the "Steve Irwin", as active participants in "Sea Shepherd" activities, was so obvious as to afford a strong prima facie entitlement to proceed against all three defendants and the first respondents in particular. The "Steve Irwin", owned by the first respondents, was actively involved in the incident of 17 June 2010; her master was a director and trustee of the first respondents; the maintenance and crewing of the vessel were, on their own admission, funded by the first respondents; and in all the circumstances there was every reason for the petitioners' claim to be directed against the first respondents as joint and several participants in a serious legal wrong. For the purposes of section 15K of the 1987 Act, a prima facie claim denoted a "good arguable case" and it was well settled that that might co-exist with an apparently arguable defence: Barry D Trentham Limited v Lawfield Investmenst Limited 2002 SC 401; Gillespie v Toondale Limited 2005 CSIH 92; FG Hawkes (Western) Limited v Szipt Ltd 2007 CSOH 57 ; and MRK 1 Limited v Sakur & Others 2008 CSOH 176.

[15] In my judgment there is no substance in this aspect of the first respondents' challenge. On the information before the court, as summarised at paragraphs [3], [4], [5] and [6] above, there would seem to be little doubt as to the first respondents' substantial and active participation in the incident of 17 June 2010. However brief and, as yet, incomplete the Particulars of Claim may be, I consider that this court is also entitled to take account of counsel's submissions along with such documentary materials as are, without objection, deployed. On that basis all the indications are that the vessel was intimately engaged on the first respondents' business when the incident occurred, and that the third respondent was at the material time performing his normal and expected role as one of the first respondents' principals. With such considerations in mind, I do not see how the prima facie entitlement of the petitioners to direct their claim against inter alios the first respondents (which is all that the petitioners require under section 15K(8) and (9) of the 1987 Act) can sensibly be denied.

"Damage done by a ship"

[16] The next question is whether, at this early stage of proceedings, the petitioners have discharged the onus of bringing themselves within the proper scope of section 47(2)(a) of the 1956 Act. According to senior counsel for the first respondents, they had signally failed to do so. The Particulars of Claim contained no explicit averment to the effect that the ramming of one of the fish cages by the "Steve Irwin" had caused physical damage of any kind. As vouched by cases such as Crofter Hand Woven Harris Tweed Company Limited and others v Veitch & another 1942 SC (HL) 1 and Rothwell v Chemical & Insulating Co Limited and another 2008 1 AC 281, the occurrence of actual loss and damage was an essential element of any delictual claim. Here the only damage identifiably addressed had been caused by divers cutting the subsea nets and thus allowing tuna to escape, and under maritime law it was well settled that damage caused by the activities of third parties had to be sharply distinguished from "damage done by a ship". To satisfy section 47(2)(a) of the 1956 Act, the ship herself must be the "instrument of mischief" by which damage was "mediately or immediately" caused. These were the phrases used by Lord Halsbury LC in Currie v McKnight 1897 AC 97, at p.101, in denying a maritime lien for damages where individual members of a ship's crew had cut the mooring lines of another vessel at Port Askaig in order to get to sea.

[17] As Lord Watson explained in the same case, at pp.106-7,

"I think it is of the essence of the rule that the damage in respect of which a maritime lien is admitted must be either the direct result or the natural consequence of a wrongful act or manoeuvre of the ship to which it attaches. Such an act or manoeuvre is necessarily due to the want of skill or negligence of the persons by whom the vessel is navigated; but it is, in the language of maritime law, attributed to the ship because the ship in their negligent or unskilful hands is the instrument which causes the damage. In the present case, according to the findings of fact contained in the decree of the First Division, the injuries sustained by the Easdale were not owing to any movement of the Dunlossit; they were wholly occasioned by an act of the Dunlossit's crew, not done in the course of her navigation, but for the purpose of removing an obstacle which prevented her from starting on her voyage".

In more recent times, the same principle had been repeatedly affirmed, notably by Lord Diplock in The "Eschersheim" 1976 2 Lloyd's Rep.1, at p.8. Admittedly physical contact was not indispensable, economic losses might suffice, and indirect causation of harm might also be sufficient (Currie; The "Eschersheim"; Bennett Steamship Co Ltd v Hull Mutual Steamship Protecting Society Ltd 1913 3 KB 372; and the later case of The "Dagmara" and "Ama Antxine" 1988 1 Lloyd's Rep.431), but the key component of a valid claim must always be the instrumentality of a ship in bringing the relevant damage about.

[18] In response, senior counsel for the petitioners very fairly disclaimed any attempt to argue that the floating cage could qualify as a ship in order to satisfy the other limb of section 47(2)(a), namely "damage ....received by a ship". That said, however, the petitioners could properly claim to have suffered loss and damage "done by" the "Steve Irwin". For one thing, the vessel had deliberately rammed one of the floating cages, and having regard to the nature and size of the cage structure it was inconceivable that it could have escaped unharmed from that violent assault. One of the photographs comprised within production 6/3 showed one side of the cage grossly distorted as it was struck by the bows of the "Steve Irwin" moving ahead under power and at some speed. Another photograph showed the inter-connected triple-beam construction of the floating cage wall, with an upstanding circumferential rail, and once again it was inconceivable that such a structure would not have suffered the damage which those aboard the "Steve Irwin" (a 1000-ton vessel powered by main engines generating more than 4000 bhp) must be taken to have intended.

[19] The petitioners' position, as confirmed at the bar, was that the cage had indeed suffered damage from the ramming. Their stated particulars of loss and damage included "(2) Cost of destroyed cage and accessories" and separately "(3) Repairs and replacement of polyethylene cage", and in the circumstances there was no question of the only damage inflicted on 17 June 2010 having been the cutting of nets by divers. The first respondents' challenge therefore had to fail on the straightforward initial ground that the petitioners' claim included the cost of the physical damage which the "Steve Irwin"'s ramming manoeuvre had directly inflicted on the cage.

[20] Even if that were not so, the petitioners' secondary contention was that where a concerted attack was mounted on the high seas by a vessel including deployment of her equipment and crew, it would be unrealistic and inappropriate for the court to draw fine distinctions. Without the "mother ship" no attack would be possible, nor would the delivery of Zodiac, divers and others to help press the attack home. Here a photograph captured the parallel deployment of the "Steve Irwin" and what appeared to be a Zodiac full of men at the moment when the cage was rammed. According to paras 7 to 9 of the Particulars of Claim, it was this attack which the divers then pressed home, and on neither side of the present case had counsel been able to identify any authority which directly covered such a deliberate, multi-pronged attack spearheaded by a vessel under navigation on the high seas. As regards the maritime caselaw on which the first respondents sought to rely, this was either neutral or helpful to the petitioners. Lord Watson's speech in Currie, for example, had attached significance to the fact that the defenders' vessel "Dunlossit" was at the material time moored and immobile. The "Eschersheim" and The "Dagmara" and "Ama Antxine" illustrated how indirect and even non-physical damage might qualify as "damage done by a ship" under section 47(2)(a), and other cases such as Wells v Owners of Gas Float Whitton No.2 1897 AC 337 (esp. per Lord Watson at p.347) confirmed that the categories defining Admiralty jurisdiction, notably those now appearing in section 47(2) of the 1956 Act, should receive a liberal interpretation consistent with maritime practice and common sense.

[21] Having taken time to consider the parties' competing submissions, I am satisfied that there is real force in the petitioners' primary argument. On current information it seems clear that a substantial part of the loss and damage of which the petitioners complain was directly brought about by the ramming manoeuvre so graphically captured in one of the photographs within production 6/3. All the indications are that the "Steve Irwin" deliberately set out to damage or destroy the cage in that manner; the cage was struck and grossly distorted by the penetrative force of the vessel's bows moving ahead under power and at some speed; the construction of the cage (as photographed) tends to confirm susceptibility to damage if rammed by a sizeable ship; the petitioners assert that damage was indeed caused in this way; included within their claim are major elements of cage damage; and in all the circumstances I have no difficulty in upholding the petitioners' contention that this aspect of their claim falls squarely within the scope of section 47(2)(a) of the 1956 Act.

[22] That being so, it is not strictly necessary for me to reach a concluded view on the petitioners' secondary contention as to the cause of the remaining damage to cages and nets. Had I required to do so, however, I would have been inclined to hold that the petitioners should succeed on that aspect of the matter also. This was a wholly extraordinary event. It involved a deliberate physical attack on the high seas. A cage was rammed. Divers went down and nets were cut, allowing tuna to escape. A rubber bullet was fired and liquid-filled bottles thrown. From start to finish, the impression is one of concerted offensive action over a short timescale, and it is no doubt the case that without the "Steve Irwin" to bring Zodiac, divers and others to the locus (and remove them thereafter), and without the planning and directions of her master, the third respondent, the attack would not and could not have taken place. In such circumstances I would not have felt it appropriate, as the first respondents contended, to draw fine distinctions between the various levels and forms of contemporaneous participation. On the contrary, taking all relevant factors into account, it would in my view have been realistic to regard the vessel "Steve Irwin" as the instrumental cause of all of the petitioners' loss and damage.

[23] I do not believe that any of the authorities to which I was referred would have obliged me to reach any different conclusion here, and indeed the decided cases in this field would appear to reflect a practical, common sense approach to an issue of this kind. Applying relevant rules and principles, it seems to me that the consequences of a unitary destructive attack on the high seas, wholly promoted by a given vessel with the concerted deployment of her equipment and crew, should readily qualify as "damage done by a ship" for the purposes of section 47(2)(a) of the 1956 Act. If, for example, one ship were to act in concert with another in a given enterprise, there is no obvious reason why each should not be held liable for all resulting damage, however occurring. Along similar lines, in the context of an orchestrated attack such as that which occurred off the Libyan coast on 17 June 2010, it should not in my opinion matter precisely how the attacking vessel and her equipment and crew happen to be deployed.

"Loss or damage to goods carried in a ship"

[24] Briefly stated, the petitioners' position was that, by analogy with cases in which the term "cargo" had been liberally interpreted so as to include items under tow, the tuna and cages in the present case should qualify as "goods carried in a ship" within the meaning of section 47(2)(f) of the 1956 Act. In his speech in Wells, for example, at pp.344-5, Lord Herschell said:

"Some of the cases relied on related to the rescue of things which, having been in tow of vessels, had broken loose and were in peril. Where goods are being towed from place to place, although they are not, strictly speaking, cargo, they yet partake of its character and are closely analogous to it. They are being transported from place to place by a vessel. Their transport is a maritime adventure of precisely the same nature as the carriage of goods in the body of a ship. All the grounds of expediency in which the law of salvage is said to have had its origin would seem to apply to the one case as much as to the other. It may be, then, that in salvage law a broad and liberal construction should be extended to the word 'cargo', so as to embrace goods in course of being transported by a vessel though not inside it. I desire to reserve my opinion on the point, ....".

Consistent with this approach, the French version of the maritime classification in article 1 of the International Salvage Convention of 1952 (from which the list in section 47(2) of the 1956 Act appears to have been taken) read inter alia:

"(f) Pertes ou dommages aux marchandises et bagages transportées par un navire" (emphasis added).

This again suggested that goods need not be in or even on board a vessel in order to qualify.

[25] For their part, the first respondents presented a contrary argument, querying whether live tuna in the sea, or cages used for transportation, could properly be regarded as "goods". They also queried whether the phrase "carried in a ship" was apt to cover items under tow, and suggested (by reference to Lord Diplock's remarks in The "Eschersheim" at pp.8-9) that only the carrying vessel might be arrestable under section 47(2)(f).

[26] Again, it is not strictly necessary for me to reach a concluded view on this issue, but if I had had to do so I would have been inclined to hold that the tuna, and perhaps also (but less plausibly) the transportation cages themselves, should qualify as "goods carried in a ship" or "marchandises....transportées par un navire" for the purposes of section 47(2)(f). It is in my view hard to see why the objects of marine towage, attached to the towing vessel while under navigation, should attract any lesser protection than the same items if carried in the hold or on the deck of the vessel herself. This aspect of the petitioners' claim is, I acknowledge, open to greater doubt than the remainder, but for present purposes (noting that Lord Diplock's remarks in The "Eschersheim" bore to relate to actions in rem, and not to an action in personam such as has been raised here) I would have been inclined to hold that the threshold for qualification under section 47(2)(f) had also been met.

Need for interim diligence

[27] During the course of the hearing, it was somewhat tentatively argued on behalf of the first respondents that the qualifying requirement under section 15K(9)(b) of the 1987 Act was not satisfied in this case. What the petitioners had to show was a real and substantial risk that, without interim security, the enforcement of their claim would be defeated or prejudiced through lack of accessible funds. The claim might not succeed to the full amount of €760,148; the first respondents had other assets and funds beyond the vessel "Steve Irwin"; and in the year to June 2010 the company's donations income had exceeded £300,000.

[28] In my judgment, agreeing with the petitioners' response, the necessary degree of risk is amply demonstrated. The first respondents' balance sheet for the year to June 2010 brings out fund balances of only £78,663; donations income is notoriously uncertain, and for 2009 in the first respondents' case was only £71,696; and such income would become especially precarious if the company were known to have incurred a substantial liability to the petitioners. The value of the claim is substantial. The vessel "Steve Irwin" would appear to be one of the first respondents' major assets, with a value of up to £400,000. And if the claim were to succeed it seems clear that, without the present arrestment, the petitioners might very well be left with no means of satisfying a decree.

Reasonableness

[29] Senior counsel for the first respondents also sought to argue that the requirement of reasonableness under section 15K(9)(c) of the 1987 Act was not met. The first respondents were a charitable organisation with laudable objectives in the field of marine conservation. They attracted monetary support from many quarters, but their work could not be carried on without the continued availability of vessels such as the "Steve Irwin". By contrast, it was said, the petitioners' claim was precarious, and might not succeed, and the equities of the situation were heavily in the first respondents' favour.

[30] Once again, I am persuaded that the petitioners' response is to be preferred. The first respondents' status as a charitable organisation cannot in my view carry much weight when set against the sort of conduct of which the petitioners now complain. A deliberate and violent attack upon the high seas has caused the petitioners to sustain substantial commercial losses. Should the present claim be successful, its enforcement will almost inevitably depend upon the attachment of the "Steve Irwin" as a major source of funds, and in all the circumstances I am satisfied that the current arrestment and its underlying warrant are entirely reasonable security measures which should be left in place.

Decision

[31] For all of these reasons, I propose to refuse the first respondents' motion for recall of the arrestment and its underlying warrant. However, since the practical consequences of this decision may require further discussion, including the possibility of alternative security being offered, I shall cause this case to be put out By Order to enable parties to address me on the form and terms of an appropriate substantive interlocutor.