Effectiveness of Arrest Procedures in the UK - Essay Example

? The arrest of vessels has long proven to be a controversial exercise in the law of England and Wales Effectiveness of arrest procedures in the UK and the possibilities for future reforms Leena [Pick the date] Acknowledgements Table of Contents Acknowledgement 1. Introduction a. Synopsis b. Aims and objectives c. Scope of work 2. Literature review a. Arrest of vessels b. Laws in UK, Canada and US c. Procedures d. Conflicts 3. Approach and Methods a. Case studies 4. Analysis and reflective learning (Observe, plan, act, evaluate, reflect) 5. Conclusion 6. Reflective review 7. Bibliography 1. Introduction a) Synopsis Pre-judgement security of claims and post-judgement execution of a suit are of importance in maritime law of any country. In both cases, it is the maritime creditor who is at the receiving end with concerns about the fulfilment of the credit extended to the debtor, as normally, most ships are credited and it is the concern of the creditor to realize the debt amount from the debtor. The concerns of the creditor become manifold when the debtor and the property under debt from the creditor are under litigation in the purview of the concerned admiralty law of the state. This calls for a study of the relevant processes and procedures involving the application of the international maritime laws to identify and evaluate the available methods and impact of the laws on the interests of the creditor and also the other related stakeholders of the ship1. Admiralty law derived from English law and the international maritime law have relevant sections that state the process and procedures for the arrest of vessels, the ship owner and the ship which will be studied and which will be useful to understand the process of arrests, the ways in which the pre-judgement is carried to ensure that post-judgment is enabled after the suit is accepted and the litigations of the ship owners, creditors, sister ships, and also the issue of payment to the plaintiff and any other claimant of the property of the ship owner is carried with this knowledge. The Arrest Convention of 19522 and the ratified Arrest Convention of 19993,4,5,6 along with the Supreme Court Act 1981, at sect. 20(2)7 and sect. 218(1) will be studied to understand the probable scope and litigations arising out of the arrest of vessels as per the Admiralty law while considering its jurisdiction. This knowledge is used to suggest useful recommendations that can be practically implemented within the ambit of the English jurisdiction. The following sections discuss the aims and objectives of the paper, followed by a literature review of the laws of Admiralty, International Maritime Law, and the procedures for arrest, conflicts arising out of the etc. The research is commissioned by The British Shipowners' Federation and the report is targeted at outlining the effectiveness of arrest procedures in the UK and the possibilities for future reforms within the scope of international maritime law. b) Aims and objectives Aims- The aims of the research are to prepare a report for the British Shipowners’ Federation by: Exploring the literature available Admiralty Law and International Maritime Law based on English Law to develop critical competence of the information available and to reflect upon it Identify and evaluate the procedures for arrest of vessels in the British Admiralty Law and any conflicts with maritime laws of other countries Provide evidence for action research and need for critical reflection to recommend improvements to the Admiralty Law Objectives- To explore the different laws existing in relation to the arrest of vessels in the UK To identify any deviations in the British Admiralty Law from those of other countries that distinguishes between the procedures for vessel arrest To understand how the deviations in the laws concerning arrest of vessel impact the creditor or the ship owner To reflect upon the impact of the applicability of laws of the different countries on vessel arrest To plan and design a reflective learning report to improve creditor’s position in the relation to the applicability of the laws for vessel arrest. c) Scope of work This action research report is based on the qualitative study of the various laws related to arrest of vessel in the UK and is useful to identify any deviations that may exist in the implementation of these laws to arrest a vessel when a claim in rem is released by the Admiralty Marshall in the Admiralty court in UK. Relevant and recent cases of vessel arrest will be studied and the findings will be reflected upon to make further recommendations for improvements in the stated laws for vessel arrest in the UK. Case studies, journal articles, and official websites will be used as reference sources to review and reflect on the findings. Further, the report will be written in the first person as several cases of vessel arrest and the conflicts arising in the international jurisdiction are evaluated. Reflection of the review and findings will be used to understand the effectiveness of the arrest procedures and to identify the possible reforms that can be recommended. 2. Literature review a) Arrest of vessels Why arrest? The arrest of vessels is often considered as a way of claiming for debts against a vessel in which case the creditor of a ship or related content thereof initiates a court proceeding to restrict or seize the vessel in a bid to reclaim the debt9,10. The vessel becomes a security for claiming of the debts to the creditor and even if it is not worth the total debt amount, or if it is worth a part of the debt and the creditor moves the court for a judgement by filling a form for claims, then the vessel shall be seized and remains under the control of the court11. The solicitor representing the claimant or creditor usually lists certain particulars like nature of the claim, the nature of issue, property to be arrested with details like ownership and flag state, and the amount of security being sought against the claim, among other things12. The vessel in question is the vessel to be arrested or is arrested (in res) which is prohibited from moving or trading so long as the resolution to the court action (in rem) is not found, and remains under the control of the court until the claim and the subsequent judgment of the court are not reached satisfactorily13. It is seen that the arrest of a vessel is a serious impediment to the trading of the ship and that claimants often use this to cause severe disruption to the vessel and its owner who has accumulated the debts to the creditor. Should the claim be found to be on false evidence, then the court also has the right to direct the claimant to compensate for the wrongful arrest14. Caution against arrest, release of vessel- The purchaser of the vessel or the ship owner too has a right to seek caution against the vessel arrest by entering a caution into the Admiralty Marshall’s register undertaking to file acknowledgement of service provided for the claim and also provide security against the claim with total cost and interest15. However, the court may reserve the right to still keep the vessel in its control even after the purchaser providing the undertaking. Should there be other claimants like the mortgaging banks, etc. for the vessel, these third party claimants too can exercise their right to arrest the vessel by entering a caution against the vessel, which will be valid for a period of 12 months16,17. In both cases where the claimant for vessel arrest and the cautioner against the release of the vessel are found to have claimed the arrest of the vessel without a valid reason thereby giving a loss to the owner in terms of the delay to trade with the vessel, the court has the right to order the claimants of the arrest to pay to the ship owner for damages for the same18. Maritime lending- The US and China are the two dominant lenders of vessels in the world and these two countries are found to have the maximum litigations for vessel arrest. The commercial lending in the maritime industry forces the two countries to frequently enforce vessel arrests to claim unpaid debts by what is normally called ‘jursidiction shopping’ to their advantage to claim the money lent to buy the ship and the vessel itself. Maritime claims in the US are more or less dictated by the laws of Admiralty court in the country which is nevertheless based on English Admiralty Law. However, it is a different case with China as the country developed its maritime laws in recent times and which are more in line with the best practices in the maritime industry based on international maritime laws and has standardized arrest laws which are also unified with the domestic laws19. The English Admiralty Law is the basis for many arrest laws in Europe and is also the basis for US and the Canadian Admiralty Laws. However, differences arise due to the nationality of the ship owner and the flag state which demands that the jurisdiction of the port state where the vessel is arrested be applied, which may be in conflict with the jurisdiction applicable to the defendant based on his nationality or the vessel’s flag state. This requires that the laws relevant to vessel arrest be studied in detail to understand how these might be applicable in UK and also the port state where the vessel may be arrested against a claim for arrest. International Maritime Law, English Admiralty Law, Admiralty Law, The Supreme Court Acts in terms of the Arrest Conventions, etc. need to be studied to understand the conflicts or claims that can arise out of maritime liens in the UK20. b) Laws in UK, Canada and US Roman law provided action in rem (to proceed) against another’s property and res to secure the claim, which form the basis of today’s Admiralty laws. Admiralty laws, common laws and civil laws are slightly different but have been used to define common maritime laws for shipping and particularly for arrests of vessels. The 1952 Arrest Convention also called International Convention Relating to the Arrest of Sea-Going Ships (Brussels 1952), was produced to harmonize the arrest of vessels and to reduce arrest claims in general. Countries having their own arrest laws initiated the 1999 Arrest Convention (International convention on the arrest of ships (Geneva 1999)) in a bid to safeguard their respective interests21. Over 90 countries are party to International Maritime Law that relies on international conventions like 1999 Ship Arrest Convention of Geneva composed by International Maritime Organization (IMO) and the United Nations Conference on Trade & Development (UNCTAD). UK is also party to the Arrest Convention (1999) but the Admiralty Law that is specific to the UK and which is separate from the common and civil laws of the country takes precedence over Arrest Convention and the Arrest convention is not always practiced in letter. Admiralty law is practiced in UK by a separate court called the Admiralty Court and the jurisdiction on the maritime cases is placed as per article 20(1) of the Supreme Courts Act of 1981 (SCA 1981). In cases where there is a need for interim measures where both the Arrest Convention and the English Admiralty Law are in conflict of resolution, the general rules of Civil Procedure Rules part 61 will be thrust in cases of vessel arrest and other litigations22. Article 1 of the Arrest convention contains the list of maritime claims and is seemingly a closed list. Article 2 contains powers of arrest and jurisdiction, article 3 contains questions that are directed against the defendants other than the owner while questioning the validity and legality of claims of vessel’s and sister ship’s arrest. Article 4 deals with the regulations for vessel release, article 5 deals with the re-arrest while article 7 deals with the jurisdictions in maritime claims. Article 8 of the 1999 Arrest Convention deals regulations related to private ships with a state flag and article 9 checks the creation of maritime liens based on the convention while the last articles of the convention deal with the ratifications, accession, reservations and denunciations of the articles in the convention23. The English Admiralty Law is effective in the UK and is enforced within the ambit of the country’s Supreme Courts Act of 1981 and is different from the common law of the country, practiced separately as Admiralty Law by the Admiralty Court of the High Court. Article 8(1) of the Arrest Convention allows the State Party of the Convention to exercise its jurisdiction on the claim and arrest in spite of the vessel flying a different flag. It reads: “This Convention shall apply to any ship within the jurisdiction of any State Party, whether or not that ship is flying the flag of a State Party”24. The English Admiralty Law recognizes maritime liens that are actionable in rem and consequently falls under the jurisdiction of the common law of England, which defines the Admiralty Law as constituting of maritime liens arising out of damages caused by the vessel, salvage claims, Seamen’s and Master’s claims for wages and Master’s disbursement while seemingly allowing for action in rem. However, common law does not recognize action in rem in contrast to the English Law that allows for vessel arrests only in action in rem25. As the common law of many countries and particularly the Commonwealth countries like Canada are based on the English Admiralty Law, the common law in these countries recognizes arrests in action in rem. This is seen to be in conflict with the common law being practiced in UK as it does not recognize action in rem. This also makes it important for the Admiralty Law treats maritime claims in the UK as a ‘closed list’26. Further, in the US, maritime laws are governed by the best practices of English Admiralty Law and the common law with section 251(1)(g) of 1999 Arrest Convention, section 19 of AJA and sections 7 and 8 of Federal High Act that confer the Federal High Court the exclusive jurisdiction in admiralty cases27. c) Procedures Procedure means “modes of proceeding to enforce a legal right as per laws that define such rights, the judicial process for enforcing the rights and duties recognized by the law to justly administer redress”28. Procedures for regulating the action in rem and subsequent enforcement of jurisdiction and final judgement fall under order 75 of the Supreme Court Acts 1981. The action begins with the Admiralty and the Commercial Registry in London or any of the District Registries in the UK issuing a writ in rem and is valid for 12 months. This writ is obtained from the High Court of London and is supported by the claimant’s ‘affidavit to lead warrant’ and can be enforced only when the vessel or other res falls within the state jurisdiction. However, when the writ is issued with the acknowledgement of the defendant or the ship owner, action in personam is also enforced with the arrest being prevented through a bail bond from the protection and indemnity (PI) club of the owner29. Admiralty action in rem and action in personam are defined as: “all actions that are aimed at the person requiring him to do or not to do or take or not to take action or course of conduct are actions in personam, while all such actions that affect the subject matter in which the claimant is enabled to arrest the ship or other property and to have it detained until his claim has been adjudicated upon or until security by bail has been given for the amount of the claim, are actions in rem”30. While Admiralty action in rem which falls in the jurisdiction of Admiralty Court does not require security for damages in claim by the plaintiff, the common or Civil Law that is found to invoke action in personam can use the procedure (Mareva injunction) for obtaining security for claims and requires the plaintiff to be liable for damages caused by injunctions. This is to protect the interests of the defendants or ship owners who are sometimes at the receiving end and is forced to suffer a loss due to his inability to prove malice or crassa negligentia against the claimant31. This leads to the need to understand the scope of the various jurisdictions and the applicable laws under the specific situations. d) Conflicts Maritime claims that are invoked under the different laws have since been found to have inherent conflicts notwithstanding the complex nature of the claims and litigations themselves. The 1999 Arrest Convention that is adopted by many countries is an attempt to harmonize the procedures for the arrest of vessels and the jurisdiction that is enforced for the safety and security of the defendants as well as the claimants. While maritime claims themselves are aimed as a security measure by the claimants, the procedure for claims exhibits scope for conflict with the different countries exercising slightly different jurisdiction to derive benefits for the port state using a combination of various laws related to Admiralty, common law and civil laws of that particular state. This has often resulted in wrongful arrests of ships with no lawful respite to the defendant or ship owner to show evidence of malice or crassa negligentia against the claimant or claim to prove his innocence. Certain factors or judiciary requirements are lacking in the jurisdictions that give scope for conflicts in maritime claims as it can be seen that there is no need for the plaintiff to establish link the jurisdiction to the claim nor is there is any need for the plaintiff or claimant and the defendant to fall within the jurisdiction of the court claiming the arrest. Also, there is no requirement for the claimant to give any advance notice of the intention to arrest. The plaintiff also is not required to establish the strength of the case to issue a writ. Further, the palintiff’s right to seek arrest of the defendant’s vessel does not depend on the character of the defendant, there is no requirement for limiting the size of the claim and usually there also no liability on part of the plaintiff to cross-undertake for damages although there are features to this effect in mareva injunction when compared to Admiralty32. 3. Approach and Methods Relational approach to research methodology aims at enabling information literacy through exploration of qualitative variations of one’s experiences or by understanding of the important phenomenon. As part of this approach, individuals are made to understand the world differently through critical thinking and reflection of the experiences and learning through conceptualisation. Relational approach is an alternative model to the commonly used behavioural and constructivist approaches where a strong attention is put on desirable user’s behaviour and outcomes in terms of skills more than in terms of process or the emphasis on the role of interpretation33. Case studies of cases of wrongful claims are identified and studied to understand the effectiveness of vessel arrest procedures in the UK to further identify and recommend possible reforms for the future. a. Case studies As discussed in the previous section, potential conflicts may not be ruled out in maritime claims where the ship owner is aware that the least that can be done is to prove innocence by establishing malice or crassa negligentia on part of the clamant in a wrongful arrest. But it does not remain the least action or effort but many a times defendants or ship owners have suffered loss due to overzealous claims by plaintiffs who take advantage of the conflicting laws in the states that implement various laws relating to maritime laws. The case of The Varna [1993] 2 Lloyd's Rep 253 is a case of conflicting law that does not require the plaintiff to prove the strength of the case prior to issuing a writ. In this case, the decision of the Court of appeal revealed that the plaintiff could issue a warrant of arrest by filing an affidavit and demonstrate that the claim falls under the jurisdiction of the relevant state as per Admiralty law34. In the case of Evangelismos, the defendant’s vessel was supposed to have collided with the plaintiff’s vessel and was arrested. But after the trial, it was held that Evangelismos was not the same vessel that collided with the plaintiff’s vessel and the owner of Evangelismos had claimed damages for wrongful arrest. However, Dr.Lushington dismissed Evangelismos’s owner’s claims for damages based on the fact that the plaintiff had no mal-intentions in claiming arrest of Evangelismos and that it was a case of misfired identification of the ship with the case of arrest still considered valid against which ever ship collided with the plaintiff’s ship. In the case of The Volant (1864), it was ruled out that the ship owner would be paid damages for wrongful arrest of ship by the plaintiff as the owner could not prove gross negligence on part of the plaintiff by way of his claim for arrest35. Other cases of conflicts of various types are: Bond Brewing Holdings Ltd v National Australia Bank Ltd [1991] 1 VLR 580 @ 599, The Orion (1852), Smith v Day (1882) 21 CH D 421, The Lisboa [1980] 2 Lloyd's Rep 546, The Volant (1864) Br. & L 321, The D H Peri Lush 543, Marazura v Oceanus [1977] 1 Lloyd's Rep 283, The George Gordon (1884) 9 PD 46, The Irish Fir (1943) 76 LI L Rep 51, The Walter D Wallett [1893] P 202, The Strathnaver [1875] 1 App Cas 58, The Cathcart (1867) LR 1 Ad and E 333, The Cheshire Witch (1864) Br & L 362, The Victor (1860) Lush 72, The Glasgow, The Nautilus, The Evangelismos, Lister v Stubbs, Hoffman-La Roche v Trade Sec [1975] AC 295 @ p360 , The Vasso [1984] 1 Lloyd's Rep 235, The Nordglimt [1987] 2 Lloyd's Rep 470, The Kherson [1992] 2 Lloyd's Rep 261, and Berlingieri I. 782-784, CPR 61.8, among other cases that have revealed several conflicts in claims jurisdiction as discussed in the previous section on conflicts36. The above listed cases have each contributed to identify the need for improvement of the legal framework under which the particular laws can be developed to address the practical implications. Although, the cases did not yield satisfactory results in the interests of the ship owners, it can be seen as an opportunity for further improvement based on this database of conflicts in vessel arrests. In relation to the conflicts observed in the above cases, comments by Colman J., on the potential injustices and anomalies inherent within the present procedures is attached in Appendix A37. 4. Analysis and reflective learning (Observe, plan, act, evaluate, reflect) It is observed that while the jurisdiction of the states usually falls under the common law of civil law that allow for action in personam, the Admiralty law in UK enables action in rem in addition to action in personam. Although the common law does not recognize action in rem, claimants in UK can invoke the Admiralty Law to issue a writ and require the arrest of vessel with subsequent action in personam where the defendant can be liable to pay for damages and enter caution in the Admiralty’s register for undertaking to file acknowledgements for the same. However, there is no requirement as such on part of the plaintiff or the claimant to pay for loss to defendant unless the defendant provides evidence of innocence, which is usually difficult for the defendant. Conflicts of interest are observed in the applicability of the jurisdiction in the UK based on the existence of the different laws. To understand the effectiveness of the jurisdiction of the Admiralty Law in UK, further research has been conducted to gather evidence to support the observation that conflicts of interests exist within the different laws of maritime claims in the UK and a study of the relevant case studies has been useful in assessing and evaluating the extent of conflict in the applicability of jurisdiction of the Admiralty laws and the common laws in UK. It is further understood that the English Admiralty Law is not fulfilling in addressing the interests of the defendants in cases of maritime claims as there are conflicts arising out of the purview of jurisdiction of Admiralty law and the common law and that the various claims in the past establish this fact calling for the need to ratify the Arrest Convention to address the issue of conflicts in maritime claims in UK and make the laws on par with those of the US, China among others which have incorporated the best practices in maritime law. 5. Conclusion The issue of writ by the plaintiff of the maritime claim is targeted as a measure of security by the claimant or creditor of the vessel. The English Admiralty Law is the basis for many other maritime laws in the world. International Maritime Organization along with United Nations Conference on Trade & Development (UNCTAD) have developed the Arrest Convention (1999) which is in effect in many countries across the world. However, English Admiralty Law which is effective in the UK as an independent maritime law enforced by the High Court is also effective in the country to deal with maritime related issues. The Arrest Convention is enforced in about 90 countries with the UK also being party to the convention. However, the Admiralty Law in UK takes precedence over the Arrest Convention law attracting some serious criticism, more so when there are conflicts in applying the laws to obtain satisfactory resolution as in most cases than not, it is found that the defendant or ship owner against who the arrest warrant is issued by the claimant suffers damage due to ‘jurisdiction shopping’ by the claimants. Further, conflicts of interest are found to exist in the enforcement of the maritime law resulting in ineffective resolutions in many cases like the Orion, the Volant, the Vasso, etc. where it has been revealed that several conflicts in interest have existed in the applicability of the Admiralty law in UK resulting in ineffective resolution of the arrest claims, much to the dissatisfaction of the defendant who had to pay for damage to the claimant. The procedure of maritime claims usually involve action in rem where the claimant issues writ seeking compensation for debt and damage, and res where the court resolves the claim through judgement. In addition to the action in rem and res as per the Admiralty law in the UK, the common law enables the claimant to invoke action in personam forcing the ship owner to comply with the demands of the claim to reduce damage due to delay. However, the defendant also has rights that can be exercised to claim compensation in case the claim fails but the defendant needs to provide evidence of malice or negligence, which is not always possible. This study calls for the ratification of the Arrest Convention to make it more standardized for protecting the interests of the defendants in cases of maritime claims in the UK. 6. 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Appendices Appendix A- Comments by Colman J., on the potential injustices and anomalies inherent within the present procedures: “Paintiff who obtains the benefit of security for his claim by arresting a vessel. Even if the plaintiff’s claim fails or he is found to have wrongly invoked the jurisdiction he will not have to compensate the shipowner for the expenses and losses arising out of the arrest unless mala fides or crassa negligentia is proved. This is a rule of English law which can bear very harshly on shipowners who for some special reason may be unable to obtain release of their vessel by putting up security. It is not a rule which is found in the Civil Law systems. The more widely used procedure for obtaining security for a claim in personam in English law is the Mareva injunction, but there is an undertaking in damages required and the liability in respect of that undertaking arises upon the basis that, if the underlying claim fails, the plaintiff is liable for all losses caused by the injunction. The absence of a similar facility in Admiralty proceedings in rem may thus leave without remedy an innocent defendant shipowner who has suffered loss by an unjustifiable arrest but who is unable to establish malice or crassa negligentia." Read More