By Anika Mardiah Chowdhury
Maritime disputes are usually dealt under the maritime or admiralty laws and each legitimate states have its own laws including multilateral treaties for example the United Nations Convention on the Law of the Sea (UNCLOS) was adopted by 167 countries and the European Union the discussions are settled at the ITLOS court in Hamburg. At present in Bangladesh the laws relating to admiralty and maritime are dealt under Section 3 of the Admiralty Court Act 2000. The cases relating to admiralty deal by the High Court Division of the Supreme Court of Bangladesh through its original jurisdiction over all admiralty and maritime matters as held in the case of Kings Shipping Trading Co vs Messrs LS Line 38 DLR 30.
This article will deal with or give an insight regarding ship arrest, its reasons, consequences, and other discussions relating to this.
Ship arrest is a civil admiralty procedure whereby a ship is arrested or detained by any concerned government authority if any infringement of law is found or till the claims that connect with the ship are met. Arrest is done by imposing a Warrant of Arrest and the ground for imposing such warrant is either damage to any cargo, collusion or towage or loss of life, property, personal injury, violation of customs or norms, regulations or others as found in the case of Captain Md Mobarak Hossain vs MT Dolores and others, 47 DLR 80. Some other reasons to arrest a ship can be for maritime lien as well as maritime claim, in an action in rem or personam, can be arrest for security, can be attached even after loss of navigability also in execution of decree passed by the High Court Division of the Supreme Court of Bangladesh or a judgment passed by a foreign Court against the Owner of the ship.
In addition, under the Bangladesh Merchant Shipping Ordinance (MSO) 1983 the Principal Officer, Mercantile Marine Department can detain an unseaworthy ship. Under the following Ordinance the High Court Division can detain a foreign ship if it damages any part to Government of Bangladesh or any Bangladeshi citizen or Bangladeshi company. As per the Regulations for Working of Chittagong Port (Cargo and Container) 2001 the Chittagong Port Authority can detain a vessel until security has been given for damage caused and the Cost involved in removing the blockade of navigational channel or until the total amount is paid.
Procedure for Arrest a ship, Under the Admiralty Court Act of 2000 and the Admiralty Rules of 1912, the High Court Division of the Supreme Court of Bangladesh will provide a warrant for arrest of ship at the request of the complainant or the defendant at any of the point of suit, but no warrant of arrest shall be issued before the party, or his lawyer has filed an affidavit as per Rule-4 in a suit in rem. It is to be mentioned that the affidavit must provide the identity and description of the person for which the warrant is being given, then must provide the claim or counterclaim and the name and nature of the property to be detained and the fact that the claim or counterclaim has not been fulfilled. In a suit for salvage delivery, the affidavit must state the sum of salvage money which decided to be accepted or awarded along with the name, address, and explanation of the person who holds it.
The complaint procedure starts with filing a suit before the court and paying the court fees. The applicant along with plaint must submit others relevant documents to the section office of the Court and the arrest application must be filed in the Court. The court will hear the matter then and if any prima facie case was established in favor of the claim, then the Court will admit the suit. In case of application for arrest if the court satisfied about the merit of the application, the court may pass an order of arrest of the ship for security of the claim amount.
The following documents are required to submit at the time of filling the suit and application for arrest are as follows-
- The Power of Attorney executed by the client (must be notarized and attested by the Bangladesh High Commission in the plaintiff’s country).
- A suit may be filed using a scanned copy of the Power of Attorney as long as the original is filed after being authenticated by the Ministry of Foreign Affairs and stamp duty is fully paid.
- Then all documents as necessary to support the claim.
- Any correspondence documents between the parties that can support the claim or arguments.
It is to be mentioned that the original documents above are required to be filed at the time of trial. Ship arrest for a maritime lien, in this case ship can be arrested though owner has changed, and the claim survives. In opposite in the case of a maritime claim, unlike a maritime lien the ship cannot be arrested if before the filing of the suit the ownership of the ship has changed.
Foreign Ship Arrest, if the ship is within the jurisdiction of Bangladesh a ship can be arrested irrespective of her flag and it gives rise to an action in rem.
Appeal, in case of making an appeal for ship arrest, the claimant or plaintiff must file a lawsuit with court fee Tk. 1,00,000.00. A court fee of Tk. 100.00 is expected to be charged in a wage action. The plaintiff must along with plaint submit supporting papers and the claim for the ship’s arrest is to be filed in the Court. After the case has entered the case list then the court, if found urgent, will file a supplementary cause list, and hold a hearing on the same day. If any prima facie case is found in favor of the claimant, the court will proceed with a summons. Then an appeal for detention is heard and if the court is prima facie satisfied with the merits of the application, a warrant for the ship’s arrest shall be issued as protection for the demanded number. If the accused has lodged a caveat, then an appeal for ship arrest will be heard ex parte. The Admiralty Court may also seize any cargo on board or any property belonging to any faction.
It is noted that the warrant for arrest ship shall be vacate if the defendant files an application for alleging that the ship was wrongfully seized and the defendants then can file an application to decrease the amount of protection required, usually both parties’ application hearing will take two weeks.
Release of the ship from arrest, the defendant can release ship from arrest by issuing a bank guarantee as security and the entire amount including costs, interests must be covered by that bank guarantee. The other way to release the ship or release without security is to establish that the vessel has been wrongly arrested and the vessel has no liability to the plaintiff and in this case the court required three to four days to provide a decision.
Next if the defendants refuse to release the ship or failed to take any steps to release the ship then the plaintiff can file a petition for sale the ship. In this case the court sells the ship ship pendente lite at auction and keeps the proceeds with the Marshal, which will be paid to the plaintiff if the suit is decided in his favor. It is to be mentioned that where there is more than one plaintiff, and the amounts are insufficient to cover then the English Law of Priority will be applied.
In international Level, ship arrest procedures are subject to two conventions, firstly the 1952 Brussels Convention (The International Convention for the Unification of Certain Rules relating to the Arrest of Seagoing Ships) is in force which has been ratified and accessed by over ninety nations. The second convention concerned with arrest is the 1999 Geneva Arrest Convention (International Convention on the Arrest of Ships) which came into force on 14 September 2011. As to date neither of the convention has been sign or ratified by Bangladesh. Therefore, the situation requires enacting uniformity in the admiralty field.
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