For more than 150
years, the test for wrongful arrest of a vessel has been that of ‘malice’ and
‘gross negligence’ on the part of the arresting party, as first described in The Evangelismos (1858) 12 Moo PC 352.
While this test remains unchallenged in England and Wales, other common law
jurisdictions including, but not limited to, Australia, South Africa, and
Singapore have questioned its validity. More recently, the so-called Evangelismos test came under scrutiny in
the judgment of the Singapore High Court in Hansa
Safety Services GmbH v The Owner of the Vessel, the “King Darwin” (The King
Darwin)  SGHC.
On 13 November 2018, the
claimant, Hansa Safety Services GmbH, brought an action in rem for services rendered to the vessel, the King Darwin. The
total sum of the claim was 5,864.00 euros. On the same day, Hansa Safety
Services GmbH arrested the King Darwin pursuant to a warrant of arrest. On 19
November 2018, the owners of the King Darwin provided security and the vessel
On 21 January 2019, the
Insolvency Administrator of the owners of the King Darwin, Hendrik Gittermann,
was granted leave to intervene in the action. In his summons, Hendrik
Gittermann sought to set aside the warrant of arrest and obtain damages for
wrongful arrest of the vessel from Hansa Safety Services GmbH.
On 21 March 2019, Hansa
Safety Services GmbH served a Notice of Discontinuance which it had filed on 7
February 2019, fourteen days after service of the defence to it. The purpose of
the Notice of Discontinuance was to rescind the action as a whole including the
counterclaim for damages for wrongful arrest of the vessel from Hansa Safety
On 22 March 2019, Hendrik
Gittermann applied to strike out the Notice of Discontinuance on the ground
that it is necessary to prevent injustice or an abuse of process of the Court.
The Senior Assistant Registrar granted the application. Hansa Safety Services
Vincent Hoong JC dismissed
the appeal and upheld the order to strike out the Notice of Discontinuance. According
to Vincent Hoong JC, this was an appropriate case for the Court to exercise its
inherent powers to strike out a Notice of Discontinuance to prevent injustice
to Hendrik Gittermann. The time and effort that Hendrik Gittermann would expend
in recommencing a claim for the wrongful arrest of the King Darwin from Hansa
Safety Services GmbH, taken in conjunction with the uncertainty of the test to
be applied when bringing a claim for damages for wrongful arrest outside of in rem proceedings, were sufficient to
set aside the Notice of Discontinuance.
argued that, by discontinuing the action, Hansa Safety Services GmbH would
deprive him of his right to pursue a claim for wrongful arrest, which must be
pursued in the context of an in rem
action by the arresting party. Vincent Hoong JC rejected this argument. Hendrik
Gittermann could bring a claim for damages for wrongful arrest independently of
any in rem action by the arresting
party. Vincent Hoong JC, reviewing the judgments in The Wallet D Wallet  P 202, Best Soar Ltd v Praxis Energy Agents Pte Ltd  3 SLR 423 and Congentra AG v Sixtenn Thirteen Marine Sa
(The Nicholas M)  1 All ER 479 (Comm), explained that such claim could
be brought under the tort of wrongful arrest, which has long been recognised by
the English Courts.
Furthermore, Hendrik Gittermann argued that, were he to pursue a claim for wrongful arrest independently of any in rem action by the arresting party, the test to be applied is unclear. Vincent Hoong JC recognised that the Court of Appeal’s observations in The Kiku Pacific  2 SLR (R) 91 and The Vasiliy Golovin  4 SLR (R) 994 have raised arguments that the applicable test for pursuing a claim for wrongful arrest when an in rem action is discontinued and an independent action is brought should be that of ‘without reasonable or probable cause’, rather than ‘malice’, as suggested in The Evangelismos (1858) 12 Moo PC 352. Nevertheless, Vincent Hoong JC took the view that these observations were not enough to lay down a less stringent test and ‘malice’ would almost certainly be the relevant threshold.