—Capt. Ashwani Jhingan
Ship arrest is a "civil law admiralty procedure" which is practically entered upon an activity or enterprise by imposing a ‘Warrant of Arrest’ on the ship. Under admiralty law, the court has the jurisdiction to prevent a ship legally from moving or trading or sailing out, till the resolution of the court action is pending. The ship is detained by "judicial process" in order to secure a maritime claim. The "arrest warrant" does not imply the seizure of a ship in execution or gratification of a judgment.
The procedure for the "arrest of the vessel" is cumbersome in India. However, if the procedure is followed correctly and properly, it may be reasonably fast enough to obtain an "arrest" in urgent situations. Perhaps, the "arresting party (Claimant)" wishing to "arrest a vessel" may like to keep a "check-list" handy to expedite the whole process.
Prima Facie Case
To enable a "Claimant" to approach the Admiralty Court for an "arrest" of the "Defendant" vessel in respect of a maritime claim, all one has to do is to file a "Substantive Suit" to the concerned Admiralty Court when the "Defendant" vessel is within the territorial waters of India. In a case involving the vessel M.V. Kapitan Kud, reported in AIR 1996 SC 516, the Supreme Court has inter-alia held that to enable a "Claimant" to seek and get a vessel arrested in respect of any maritime claim, all that he has to do is to make out a "prima facie" case, and the arrest of the vessel shall be granted. At the time of the application for "arrest", the "Court will not go into the evidence" in the matter and/or the probability of the Plaintiff succeeding in the Suit.
Admiralty Jurisdiction of the Court
India is not a signatory to either the Arrest Convention 1952 or the Arrest Convention 1999. However, the Supreme Court of India has held that India can arrest vessels as the principles set out in these conventions reflect the principles internationally and followed by maritime jurisdictions worldwide, provided that the principles are not in conflict with municipal Indian laws.
Subsequent to long-standing demand for the suitable legislation of the Indian maritime industry, The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, finally, got the Presidential assent in Aug. 2017, repealing the earlier archaic laws. A Bill in this regard was cleared by the Rajya Sabha on April 24, 2017. The Lok Sabha passed the Bill on March 10, 2017.
The new Admiralty Act 2017 extensively discusses the arrest of ships and other related matters.
"Claims" for which "arrest" is permissible
Of the "maritime claims" listed in the Arrest Conventions 1952 and 1999, claims relating to damage done by a ship, salvage, seamen’s’ and Master’s wages, Master’s disbursements and bottomry and respodentia constitute "maritime liens" and the vessel can be arrested for such a claim, even if there is a change in the ownership of the vessel. India also allows arrest of vessels for security, pending foreign arbitration and recognises the concept of sister-ship arrest, beneficial ownership/associated ship arrest.
Commencement of in rem proceedings
Ship arrest is a "procedure" to render justice in accordance with "substantive" law not only in cases of "collision and salvage" but also in cases of other "maritime claims" and "liens" arising by reason of breach of contract for the hire of vessels and carriage of goods or other maritime transactions, and for negligence occurring in connection with the carriage of goods, etc.
In order to apply for an arrest, the "Claimant (Plaintiff)" will have to file a "Substantive Suit" setting out the facts in detail, the nature of the dispute, the particulars of the claim, etc. The Suit will also contain all the supporting documents such as the original contract, type of vessel, correspondence exchanged between the parties, proof of vessel ownership, documents regarding payments, etc.
The "last part" of the "Suit" must contain the "prayer" of the Claimant seeking arrest of the vessel (defendant), the detention of the vessel, the sale of the vessel, the amount of compensation and a "decree" for the "claim amount/ security" in respect of "arbitration proceedings", and "interim orders" for urgent arrest will be made as the case may be.
An "Undertaking" to pay "compensation (damages)" in case of "wrongful arrest"
No "counter-security" is normally required to be provided. The "Undertaking" cannot be invoked merely because the Court eventually vacates the arrest or sets aside, but only if the Court eventually holds that the arrest was wrongful; for example, if obtained with malafide intentions or in bad faith or a case involving gross negligence, makes India a friendly arrest jurisdiction. The "Plaintiff’s (Claimant’s) solicitor" also undertakes a search with the "registry" to ascertain if any "caveat (caution)" against "arrest" of the vessel has been "registered" with the Registry.
If no caveat has been registered, the "application for arrest can be made ex-parte" upon producing a "Certificate from the Admiralty Registrar confirming that no caveat against arrest of the vessel has been registered".
Once the Court "orders" the arrest of the vessel and after the "judge has signed the order", the "Registry" of the Court will issue an "Arrest Warrant".
The "Warrant of Arrest" is required to be served by the "Sheriff through a nominated Court Bailiff". The "Sheriff" instructs the "Court Bailiff" to serve the "Warrant of Arrest", with a covering letter, upon the "vessel" which is required to be arrested. The same "warrant of arrest" also has to be served on the "Customs and the port" authorities, with a request that the port and Customs do not grant "outward clearance" to the vessel nor permit the vessel to sail.
The "Court Bailiff", after serving the "Warrant of Arrest" upon the "vessel" and the "Customs and the port authorities", will file an "affidavit" stating that he has carried out the service and has performed his duty.
Once the vessel has been served with the "Warrant of Arrest", the "vessel, through its owner, can either appear and settle the claim or contest the arrest".
If the owner wishes to contest the arrest, the owner can either furnish security for the claim on a without prejudice basis, so that the vessel can sail and then contest the arrest, or the owner can contest the arrest by keeping the vessel under arrest. Normally, the former is preferred as the vessel can sail and be employed for gain.
Source: Exim India