Ship arrest

Kazi Murad Hossain

Lecturer, Law Discipline,
Khulna University, Khulna.
 Ship arrest
• Ship arrest refers to the civil law procedure whereby a ship or similar marine
vessel may be arrested by judicial process and held under state authority in a
particular jurisdiction pending the determination of present or future claims
relating to the vessel.
• The ship is detained by judicial process for the purpose of securing a
maritime claim, or for unseaworthiness and certain other conditions.
 Cont…
• A ship may be "arrested" and detained in port by a court order in support of
a maritime lien claim by creditors against the vessel.

• The primary purpose of the process was to counteract the defendant’s

contumacious refusal to appear before the court and contest the suit brought
against him.
 The action in rem and action in personam
• The term action in rem originates in Roman law. Basically, action in rem is a
type of lawsuit brought against a piece of property itself instead of the
owner of a property.
• For instance, a party could bring an action in rem case against a ship or its cargo instead
of the owner of the vessel.
• An action in personam would be a case brought against the owner of the
property. Action in rem can be very effective when someone has a legitimate
claim against a piece of property.
 The grounds upon which a ship may be
arrested
• The arrest of ships is a legal mechanism that prohibits any one from moving the vessel in
order that it can serve as security for a claim. Arrest of ships is a pre-trial remedy unique to
maritime law and has become a vitally important remedy for the maritime claimant.
• The grounds upon which a ship may be arrested vary under the legal systems of different
countries. But common grounds which may permit arrest may include:
• damage to cargo carried by the ship
• damage caused by a collision with the ship
• to protect a mortgage or maritime lien over the ship
• unpaid pilotage or towage relating to the ship
 International Conventions
• A number of international conventions have been entered into in relation to
arrest of ships under maritime law. They include:
• International Convention on Arrest of Ships (1999)
• International Convention for the unification of certain rules relating to
Arrest of Sea-going Ships, 1952

• Bangladesh is not a signatory to any of these Conventions.

 Indian Decision
• However, the Supreme Court in the case of M.V. Elizabeth v. Harwan
Investment & Trading Pvt. Ltd. held that since India is a common law
country, the International Convention of the Arrest of Seagoing Ships,
Brussels, 10 May 1952 can be applied to India to enforce the claims of
maritime law against the foreign ships.
 Indian Decision
• Further, in the case of M.V. Sea Success, the Supreme Court of India laid
down that the principles of the 1999 Geneva Arrest Convention were
applicable for arresting a ship in India.
• Of all the claims listed in the Arrest Conventions 1952 and 1999, the
vessel can be arrested for claims relating to damage done by a ship, loss of
goods in transit, salvage, master’s wages, disbursements and bottomry
irrespective of any change in the ownership of the vessel.
 Procedure after arrest
• After the Arrest Warrant is served upon the vessel, the vessel is then
required to appear through its owner and settle the claim or challenge the
arrest.
• If the owner challenges the order of arrest, the owner has two options.
Either he can let his vessel sail by furnishing the security for the claim and
then contest the arrest, or he can challenge the arrest by keeping the vessel
under arrest.
 Cont…
• In the case of default of owner, the court can make an order for the sale of
the vessel and the sale proceeds can thereby be utilised to settle the claims of
the Plaintiff.
• In the case of any surplus, it must be paid back to the owner.
 Purpose of arrest
• Arrest of Ships: Impact of the Law on Maritime Claimants. By Stanley
Onyebuchi Okoli.
• Page 31-32
 Consequences of ship arrest
• Arrest of Ships: Impact of the Law on Maritime Claimants. By Stanley
Onyebuchi Okoli.
• Page 32-33
 Arresting a ship checklist
• Decide if it is to your advantage to arrest a ship instead of seeking to enforce
your rights under the complaints procedures of the MLC.
• If you decide to arrest a ship, instruct a lawyer.
• Determine whether you have a maritime claim for which a ship can be
arrested.
• Decide in which port you will have the ship arrested.
• Decide whether you will arrest the particular ship or a sister ship.
 Arresting a ship checklist
• Estimate the value of the ship to be arrested after a forced sale by the court.
• Determine the ranking of your maritime claim.
• Take into account your lawyer’s and the court’s fees, the costs of keeping the ship
under arrest, the possibility of an early forced sale of the ship, and the financial
security that may be required from you.
• Consider the risk of a claim for wrongful arrest.
• You may release the arrested ship upon sufficient bail or other security being
furnished.
 Important links
• https://www.marineinsight.com/maritime-law/ship-arrest-under-maritime-
law-reasons-procedure-and-precautions/
• https://seafarersrights.org/sri-resources/seafarers-rights-fact-files/arrest-of-
ships/
• https://tahmidurrahman.com/category/maritime-law/ship-arrest/
Any Question??

Thank You!