Arrest Of Ships
Master of a well founded foreign going Merchant ship, safely alongside in a foreign port, may be surprised to be served a warrant of arrest of his ship in that port. To his knowledge his ship has not had any accident and there has been no incident or injury on board for local authorities to take such an action. To understand such matters he has to understand two very strong, basic and ancient principles of international maritime Law which are:-
Law of Sovereignty of Nations.
Law of Legal personality of a ship.Historically, arrest of a ship in a foreign country originates out of the fact that under the law of Sovereignty of Nations, every ship is under the law of the country where she is at any particular time and not under the law of her own country and flag.
The Principle of legal personality of a ship gives rise to maritime liens
Again, principle of legal personality of a ship gives rise to maritime liens. That means that if an essential service is rendered to a ship such as supply of provisions, carrying out essential repairs, supply of bunkers etc., it is the ship which is liable to meet those claims. NOT the owner. Also she may be liable for causing damage in a collision or there maybe an accident on board for which she is liable to a local citizen. In any case, owner may be far away in a different country and may not even be known. Even if he is known, claimant in one country cannot usually sue some one in a different country.
Till very recently these laws were usually applicable to THAT ship which caused some damage or to which a claim attached. Of late, principle of “Sister Ship” has been added. If a ship has caused damage or has been rendered a service, a “sister ship” which comes to the same jurisdiction can be called upon to discharge her liability except that such a ship has to be a REAL sister or must be under the same beneficial ownership.
Thus, Master of a ship on whom an order of arrest is made, may not even know what happened, how a sister ship was involved and what is it that she did or did not do, for which the arrest warrant is being issued on HIS ship! Of course owners usually discharge such liabilities. But if they don’t, she, or a sister ship or a ship under the same beneficial ownership can be made to discharge her debts and/or liabilities. Thus, if claims of national of a country have not been met, he can go to his local court and cause her arrest till such time his claims are satisfactorily discharged. This could only be done under the law of THAT country and under the same jurisdiction where both the claimant and the ship were. Till recently, a claimant could not take such action in one country when the ship was in a different jurisdiction. But now some countries allow it.
Even though laws pertaining to arrest of ships arise out of the above basic principles which are relatively uniform and universal, laws applicable to cause of such arrests are different in different countries. For example supplier of bunker fuel has no right to cause arrest of a ship in UK jurisdiction but has that right under American jurisdiction. There are many other differences in laws of different countries of the world. In common law, a lien is right of a creditor to retain properties of his debtor until the debt is paid. A maritime lien is a privileged claim on a ship as maritime property, for services rendered, or injuries caused by her. It may be against the ship, the cargo, freight or even proceeds of her sale. Ship is treated as wrongdoer, not the owner. Maritime lien attaches to the ship like a leach, from when the cause of action arises and is not extinguished even if the ship is sold. But it is extinguished if the ship sinks or is destroyed. It includes
Wages of the ship’s master and crew
- Salvage operations
- General average claims
- Preferred ship mortgages
- Claims under maritime contracts for repairs,supplies, towage, “necessaries”
Claims for maritime torts including personal injury and death.
- Collision claims
- Claims for the damage or loss of cargo.
- Pollution claims have been added to this list of late.
But this list is not exhaustive and is not the same under maritime laws of differing jurisdictions.Action in rem is action against the maritime property such as ship, cargo or freight, but not against the owner. An action in rem is easier and convenient to institute. If enough security for compensation is not provided. A court may even sell the ship to satisfy the claim. There is no right to arrest foreign naval ships. But ships owned by foreign governments do not enjoy the same immunity if commercially used. Also once a government uses a ship for trade they cannot plead ownership of government as defense.
A lien is discharged or eliminated by paying the claims, waiver, foreclosure, and court sale or destruction of the ship. Also lien holder can give up his right of maritime lien by clearly expressed or implied intention. Laches is a form of estoppel for delay. If a person fails to arrest the ship within a reasonable time, it may result in cancellation of the original claim.
The time of delay will be determined on a case to case basis under local law. An execution sale in rem, removes attachment of the lien. New shipowner gets a clear title. Destruction of the ship results in extinction of lien. But in a partial destruction lien will be attached to remaining part of the ship.
Jurisdiction of Admiralty Courts originated in the UK in Saxon times. High Court of Admiralty was an instrument of Lord High Admiral to hear disputes and offences pertaining to sea and ships. Judge in this court was a deputy to Lord High Admiral. Under Admiralty Courts act, 1840, this jurisdiction was confined to cognizance of mortgage of ships, questions of legal title, division of proceeds of sale on suits of possession, claims in the nature of salvage services, provision of necessaries to a ship as well as claims for towage. ACA of 1861 stipulated for claim for damage done by ships.
The British Supreme Court Act of 1981 now named the Senior Courts Act 1981, applies against a ship through legal process and gives right to part of the property in the res. The ship has to pay for the wrong done even by forced sale subject to priorities. Buyer of ship in a court sale, gets clean title. Maritime lien holders rank prior to other c l a i m a n t s . The act also applies to any claim for
loss or damage to goods carried in a ship, claims for GA, Salvage and Towage, plus any claim for essential service rendered to a ship. Claims for wages of master officers and Crew have top priority.
An action in rem is easier and convenient to institute.
India followed English Law under British rule and only high courts of Madras, Bombay and Calcutta exercised admiralty jurisdiction under the 1861 English Admiralty Act and the 1890-Colonial Courts of Admiralty (India) Act. This situation remained even after Indian Independence. Landmark Judgment of Supreme Court of India in “M.V. Elizabeth” in 1993 set things right and brought our law at par with international conventions. Today all our high courts have admiralty jurisdiction.
Conventions relating to this are the International Convention Relating to Arrest of Seagoing Ships or International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision, both signed at Brussels on May 10 1952. India did not ratify these conventions. The 1999 Arrest convention came into force from September 14 2011 after ten states have acceded to it. India participated in this convention but has not yet ratified it.
-Capt. A.K. Bansal