Virtual Ship Arrest

GLOBAL law firm, DLA, has launched a handy guide to ship arrest in forty different jurisdictions around the world. Available online at www.dla.com, the service profiles the ship arrest process in each country based on ten questions covering maritime liens, sistership arrest, documentation, security, etc.

The guide also provides a summary of Article 1 of the 1952 Arrest Convention. Below are some example profiles available on the site. Visit www.dla.com to find out more.

AUSTRALIA

1. Can a ship be arrested for claims other than those listed in the 1952 Convention? If so, under what circumstances?
Yes. For (a) Satisfaction or enforcement of a judgment in an admiralty proceeding in rem; (b) interest claim on other claims including mortgage, possession and ownership claims; (c) liability under s.7(i) and Part II or IV of the Protection at Sea (Civil Liability) Act; (d) liability for port, harbour, canal or similar dues or tolls in relation to the ship; (e) levies including those imposed by The Protection at Sea (Shipping Levy) Act; (f) insurance premium claims or mutual insurance calls in relation to a ship; (g) enforcement of an arbitral award which would otherwise be within the admiralty jurisdiction; (h) interest on other claims which would otherwise be within the admiralty jurisdiction.

2. Which maritime liens are recognised?
Salvage, damage done by a ship, wages of a master or crew and master's disbursements.

3. Arrest for security? Arrest for arbitration security?
No, but it is possible to arrest and then seek to stay the proceedings on the basis that the claim is to be determined by arbitration or a court in a foreign country.

4. Sister ship arrest?
Yes, but only if, at the time the proceedings are commenced, the person liable to the claim in personam is the owner of the sister ship to be arrested.

5. Counter-security?
No.

6. Documents Required?
A writ in rem, an application for an arrest warrant and an affidavit in support of the application and the arrest warrant itself. A power of attorney is not necessary.

7. Security Acceptable?
Cash paid into court, a bail bond or a P&I Club undertaking.

8. Costs?
Costs are taxed by the court if not agreed by the parties. The filing fee for a writ in rem in the Federal Court is Aus$1262 (about US$720)and in the Supreme Court of New South Wales it is Aus$2558 (US$1460). The arresting party must pay the Marshal the expenses of the ship whilst under arrest.

9. Applicable Conventions, if any?
Australia is not party to the 1952 Convention. The 1999 Convention is currently under review.

10. In what circumstances, if any, are damages awarded for unlawful arrest?
Where a party unreasonably and without good cause demands excessive security, obtains arrest or fails to consent to release from arrest.

ENGLAND AND WALES

1. Can a ship be arrested for claims other than those listed in the 1952 Convention? If so, under what circumstances?
Only in limited circumstances. Environmental damage is probably included in a claim for "damage done by a ship".

2. Which maritime liens are recognised?
Only in limited circumstances. Environmental damage is probably included in a claim for "damage done by a ship".

3. Arrest for security? Arrest for arbitration security?
Yes. Normally the action will be stayed and the security will be retained for the satisfaction of the foreign judgment or arbitration award.

4. Sister ship arrest?
In certain circumstances it is possible to arrest ships under the same beneficial ownership, but it is not possible to arrest a ship under the same "management". It may be possible, in unusual circumstances, to pierce the corporate veil.

5. Counter-security?
No, but on rare occasions there may be exceptions to this.

6. Documents Required?
A claim form in rem; an affidavit which establishes that a maritime claim exists, and also proves that the claim has not been paid and who the owners are; an arrest warrant; and an undertaking to the court for payment of the Admiralty Marshal's costs and expenses of arrest. No power of attorney is necessary.

7. Security Acceptable?
Bank guarantee, P&I Club letter, bail bond.

8. Costs?
Court costs of up to about £600 (about US$870), plus lawyers' costs charged on a normal hourly basis. The Admiralty Marshal's costs and expenses arising out of the arrest must also be paid by the arresting party. These can be substantial and cover his costs during the arrest (including crew's wages, stores, repatriation costs and expenses).

9. Applicable Conventions, if any?
The 1952 Convention is incorporated into the law of England and Wales with some modifications. It is likely that the 1999 Convention will also be incorporated. HM Government's consultation paper is currently awaited.

10. In what circumstances, if any, are damages awarded for unlawful arrest?.
In cases where bad faith can be proved.

HONG KONG

1. Can a ship be arrested for claims other than those listed in the 1952 Convention? If so, under what circumstances?
Yes. Claims for forfeiture or condemnation of a ship or goods which are being or have been carried, or have been attempted to be carried, in a ship, or for the restoration of a ship or any such goods after seizure, or for droits of the admiralty.

2. Which maritime liens are recognised?
Damage done by a ship; salvage; seamen's wages; bottomry and respondentia.

3. Arrest for security? Arrest for arbitration security?
Yes, provided that the claim falls within the admiralty jurisdiction and an action in rem can be invoked.

4. Sister ship arrest?
Sister ships yes. Ships under the same management or 'associated ships' - no.

5. Counter-security?
Not required.

6. Documents Required?
In rem writ of summons and forms for acknowledgement of service; supporting affidavit; warrant of arrest; praecipe for warrant of arrest; undertaking for bailiff's expenses. A power of attorney is not necessary.

7. Security Acceptable?
Bailbond, bank or insurance company guarantee, or a P&I Club letter of undertaking are usually accepted by agreement.

8. Costs?
Lawyers' costs are charged either on an hourly rate or lump sum basis and would normally be around HK$15,000 to HK$20,000 (about US$2000 to US$2500) in total. The arresting party undertakes to pay the costs and expenses of the vessel while the vessel is under arrest. This undertaking is then in effect taken over by the releasing party.

9. Applicable Conventions, if any?
Hong Kong is a party to the 1952 Convention but is unlikely to ratify the 1999 Convention.

10. In what circumstances, if any, are damages awarded for unlawful arrest?
In cases where gross negligence or bad faith can be proved.

THE NETHERLANDS

1. Can a ship be arrested for claims other than those listed in the 1952 Convention? If so, under what circumstances?
Yes. Dutch vessels may be arrested in the Netherlands for all claims by claimants domiciled there. Vessels which fly the flag of a non-contracting state may also be arrested for any claim.

2. Which maritime liens are recognised?
Maritime liens are not a familiar concept, but the order of priority rights is: costs of sale; costs of preservation after arrest; crew's wage claims; salvage and general average; mortgage; contract for commissioning the ship and collision and claims against a limitation fund; all other claims.

3. Arrest for security? Arrest for arbitration security?
Yes, but court proceedings must be initiated and arbitration proceedings commenced within the time period given by the court to maintain the arrest.

4. Sister ship arrest?
Sister ships under the same ownership (determined by whether all shares in the vessel are owned by the defendant) may be arrested. The question of who owns the shares in a corporate body that owns the vessel is not relevant in determining ownership.

5. Counter-security?
The court has the discretion to order counter security, taking into account the possible damages suffered by the defendant, but this happens only in exceptional cases.

6. Documents Required?
A written application containing details of the claim and name and location of the vessel. No power of attorney is required.

7. Security Acceptable?
Usually a bank guarantee or letter issued by a P&I Club or insurance company. The amount is normally 130 per cent of the claim.

8. Costs?
Court and bailiff fees are recoverable and would be between €800- €1480 (about US$730 - US$1360). Lawyers' fees are partially recoverable and would be around €3200 - €3650 (US$2900 - US$3500) in a straightforward case. Total costs would therefore be around €5000 (US$4600). There is no obligation on the claimant to pay the costs of the vessel whilst under arrest.

9. Applicable Conventions, if any?
The Netherlands is party to the 1952 Convention. It is not known whether it will be party to the 1999 Convention.

10. In what circumstances, if any, are damages awarded for unlawful arrest?
Where the arrest proves to be unlawful (e.g. if the principal action fails) the arresting party is liable for all damages reasonably linked with the arre