The Arrest Conventions

International Enforcement of Maritime Claims

Paul Myburgh, Paul Myburgh

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509928293
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho marítimo

The Arrest Conventions, signed in 1952 and 1999, play a fundamental role in the worldwide enforcement of maritime claims. Arrest of ships is one of the most distinctive features of international maritime law. It provides a powerful, efficient and effective means of enforcing maritime claims in rem, obtaining sufficient asset security and preserving property pending substantive proceedings. Ship arrest is, however, also a draconian power that cuts across property rights and can cause considerable commercial harm to shipowning interests. This book provides thematic and comparative analysis from leading international commentators on the most significant legal and policy issues, including practical problems arising from the Arrest Convention texts, as well as the direct implementation or indirect 'translation' of the Arrest Conventions into domestic legal systems. It critically analyses the political and historical development of the Conventions, explores the key concepts underpinning the Arrest Convention frameworks and considers the future of ship arrest.

1

Ship Arrest – Issues of Availability, Fairness and Proportionality

RHIDIAN THOMAS^*

I.Ship Arrest – An Introductory Overview

A.Introduction

Ship arrest is as familiar a phenomenon in maritime law and practice as any other that might be identified. It is one of the distinguishing hallmarks of the subject, as the judiciary is only too ready to declare.¹ Yet, like so many common and familiar topics, it can become surprisingly elusive and obscure when there is a pause to analyse the phenomenon closely. Exposed to the beam of the spotlight it may become distinctly hazy.

Ship arrest is consistently highlighted as a point of difference when compared to other forms of legal process and lauded as placing maritime claimants in litigation in a favourable position, enjoying privileges not available to other categories of claimant, relating primarily to questions of jurisdiction and pre-judgment security.² The gaze of those who adopt this viewpoint is invariably inclined to the peculiar hazards confronting maritime claimants, compelled to pursue claims in an international environment and often confronting shipowners and operators seeking to evade justice or ready accessibility of their persons or property by strategically taking advantage of the vast global oceanic and terrestrial stage on which they ply their trade. The availability of ship arrest, it is contended, enables them to counter these potential difficulties.³

There is, of course, some truth in this analysis, but it is also the case that in the contemporary world the potential difficulties confronting maritime claimants are substantially less than in bygone times and are not much different, if at all, from the difficulties confronting international litigants generally. The world has changed radically since the late eighteenth and nineteenth centuries when sea transport was the sole significant mode of international transport and the engine driving the growth in international trade, and when international communications were precarious and rudimentary. The multi-layered globalisation of modern trade, transport, communications and associated legal, insurance, finance and other services have rendered international litigation and jurisprudence commonplace, with the position and circumstances of the various categories of international claimants materially uniform. In the words of Lord Sumption, ‘[l]itigation between residents of different states is a routine incident of modern commercial life’.⁴ It is also the case that the position of international litigants generally is much more favourable than that of their predecessors. This is not to say that there are not particular problems associated with international litigation, particularly when compared with domestic litigation, but the problems are of a common nature and confront international claimants generally. Therefore, any special pleading on account of maritime litigants must be carefully considered and not accepted as a matter of course.

Ship arrest is a process confined to courts with jurisdiction over identified maritime claims. In the Common Law tradition it is associated with the Admiralty Court and its jurisdiction:⁵ in other legal traditions the position is less distinct and may be associated with any of the ordinary civil courts with jurisdiction over maritime claims. The governing law is that of the court which orders the arrest, the lex fori or lex fori arresti, and only a ship within the territorial jurisdiction of the arresting court may be arrested.⁶ An arrest may be made for many purposes but its most significant consequences relate to questions of jurisdiction and security for the underlying substantive claim.⁷ In contemporary practice ship arrest is viewed predominantly as a device for obtaining security for the claim. There is a common benefit in this because it also provides the means by which owners can avoid the commercial disruption caused by an arrest by providing substitute security.⁸ The reality is that, even when the power to arrest exists, rarely is it exercised because predominantly parties agree on the provision of substitute security.⁹

The arrest of a ship results in the detention of property owned or operated by a legal or natural person (predominantly the former), with the consequence that the owner or operator is denied the commercial use and benefit of the ship, at least temporarily. The process necessarily involves the risk of inflicting a detriment and the position is compounded by the fact that this occurs before the question of liability in relation to the underpinning substantive claim has been determined. In its nature, therefore, it is an exceptional process. It could readily be perceived as being in conflict with human rights, the basic notion of the right to peaceful enjoyment of property in a civilised liberal society, or, alternatively, as being a disproportionate process. But this is not to say that such a process may not in particular circumstances be justified and recognised as legally valid. There may be just cause, to be confined to situations when the process takes the support of public policy and is administered fairly with due and proper regard to the competing interests of the parties. This is an aspect of ship arrest which appears not to have caused significant disquiet and consequently it has received little attention in the research literature. It is, nonetheless, a theme that underpins this Chapter.¹⁰

The ship arrest process gives rise to many legal issues and uncertainties, many of which are discussed and analysed by other contributors to this book. The thesis I wish to pursue relates to questions of the availability of the arrest process, and associated issues of fairness and proportionality in the way the arrest process functions. I do not query the validity of the existence of a right to arrest ships – the process is too well established to entertain such a radical position – only the extent of its availability and the way the power is exercised. In developing this thesis I take into account the international Conventions relating to ship arrest and the English admiralty jurisdiction, as the United Kingdom provides an example of an arrest-friendly State. The procedure and practice relating to ship arrest may vary significantly between States and there is a broad and imprecise tendency to group some as ‘arrest-friendly’ States, as compared to other States that adopt a more restrictive approach.

B.The Evolution of International Jurisprudence

The law and practice of ship arrest in contemporary jurisprudence is a mix of national and international Convention law, the latter based primarily on the International Convention Relating to the Arrest of Sea-Going Ships 1952 (Arrest Convention 1952)¹¹ and to a lesser extent the International Convention on Arrest of Ships 1999 (Arrest Convention 1999).¹² The Arrest Convention 1952 has received broad support and has been a significant influence on the development of an international law of ship arrest.¹³ The object underlying the Arrest Convention 1999 was to develop the international law still further by clarifying the law and responding to identified omissions and limitations in the Arrest Convention 1952.¹⁴ It has been, however, much less successful than its predecessor and has received little international support.¹⁵

The law of ship arrest has a close relationship with the subject of maritime liens because the latter represents a distinct source of the power to arrest ships, with its own distinctive characteristics. The power to arrest follows the ship even into the hands of a bona fide purchaser without notice.¹⁶ The subject of maritime liens has also attracted a distinct cluster of unifying international Conventions which have only enjoyed minimal success.¹⁷ Both Arrest Conventions make it expressly clear that they do not create any maritime liens¹⁸ and the Arrest Convention 1999 also expressly recognises the power of arrest in association with claims in the nature of maritime liens.¹⁹

Both Arrest Conventions are restricted to the arrest of ships and constructed on a synthesis of two preceding legal traditions, the Common Law, with its specialist strand of admiralty law and procedure,²⁰ and the Civil Law.²¹

Under admiralty law ship arrest is an incident of the claim in rem served on the ship in respect of which the legal question or claim arose and which in turn invokes the jurisdiction in rem of the Admiralty Court.²² The arrest of the ship is thereafter achieved by the execution of a warrant of arrest against the ship.²³ Nonetheless, service of the claim form alone is sufficient to invoke the admiralty jurisdiction in rem.²⁴ Concurrently with the jurisdiction in rem the Admiralty Court also possesses a jurisdiction in personam.²⁵ When the latter is invoked the Admiralty Court conducts itself in the same way as litigation in other senior courts. When the in rem jurisdiction is invoked it conducts itself in an exceptional way, at least initially, which is not replicated in any other senior court. Its jurisdiction in rem is established by process against property, predominantly the ship.²⁶ Prior to the Arrest Convention 1952 the power to arrest a ship was restricted to a claim within the admiralty jurisdiction as it then existed²⁷ and to the ship in connection with which the claim arose.²⁸ This was the concept of admiralty jurisdiction inherited by other jurisdictions which were party to the English common law.²⁹

The pre-1952 position was very different in the development of the Civilian legal tradition where nothing comparable to the admiralty jurisdiction in rem e...