What Claims Can Found the Arrest of a Ship

 

 

The Nigeria Ship Arrest Series is published by Akabogu & Associates, a Nigerian law firm. It will run weekly through the first quarter of 2021 to provide ship and cargo interests related to Nigeria with information to make quick decisions when faced with ship arrest situations.

Part 4 – What Claims Can Found the Arrest of a Ship

Introduction

 Whether a claim involving a ship qualifies as an admiralty action in rem – to the effect that the court can make an order for its arrest as pre-judgment security – is a matter of hard law which, despite being well litigated and largely settled, continues to feature prominently in law reports. At first instance, the suitability of such a claim to ground ship arrest will typically confront the implicated parties and their lawyers on either or both of two junctures

• while arguing the application for grant of the arrest order in the first place and/or,
• while presenting or opposing a point of preliminary objection challenging the grant to the arrest order.

On whichever side of the divide that one may find oneself, the underlying legal principles laid down in the Admiralty Jurisdiction Act (AJA) are relevant. They are briefly summarized below.

Only Maritime Claims can find ship arrest

Section 2 of the AJA provides for a long list of maritime claims which are classified as either proprietary or general maritime claims.  Proprietary maritime claims are those relating to the ownership, possession or mortgage of a ship, a share in a ship or its freight.

General maritime claims on the other hand include claims for damage done or received by a ship, claims for loss of life, or for personal injury sustained in consequence of a defect in a ship or in its apparel or equipment, claims arising out of the acts or omissions of the owners or characters of a ship as well as claims for loss of or damage to goods carried by a ship and claims arising out of agreements relating to the carriage of goods or persons by a ship. Other general maritime claims are those for salvage, general average, pilotage, port and habour dues, master’s disbursements and crew wages.

The general import of the provisions section 5 of the AJA is that while merely being a maritime claim is not the only qualifying criterion, not having such a claim as listed in section 2 of the AJA automatically disqualifies a claimant from seeking an order of ship arrest.

Not all Maritime Claims Can found Ship arrest

By the combined reading of Section 5 (2-4) AJA, the following deductions regarding the types of maritime claims that can give birth to an action in rem can be made.

• All propitiatory maritime claims are actionable in rem,
• General maritime claims which nonetheless give rise maritime liens are also actionable in rem,
• Any other maritime claim may be actionable in rem if the circumstances are such that the claim arose in respect of a ship and the person who would be liable on the claim in an action in personam was the owner, charterer, or in possession or in control of the ship when the cause of action arose and as at the time the action is brought the person who would be liable on the claim in an action in personam is the beneficial owner of all the shares in the ship or the demise charterer.

The claims that constitute proprietary maritime claims have already been highlighted earlier. With regard to claims which give rise to maritime liens, section 5 (3) AJA lists claims for salvage, damage done by a ship, wages of the master or a member of the crew of a ship, and claims for ship master’s disbursements as constituting same. With regard to the rest of the maritime claims which are neither proprietary nor maritime liens, the required link between the ship and the person liable in personam – often a very contentious matter – must be strictly established.

Conclusion The need to ensure that ship arrest is procured only in deserving cases and circumstances is primal. For one, procuring such arrest is not cheap. When an order of arrest of a ship is set aside or vacated on the ground that the relevant claim is not one which ought to give rise to an action in rem, the losses in terms of time, money expended, and even further liability to the ship (for needless arrest) can be humongous. Claimants are well advised to consult with expert lawyers in this field in each and every case.

For more information contact info@akabogulaw.com, 2347043293271.

Next – Part Five: Procedure for ship arrest in Nigeria. 

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