Arrest of the Ship and Process to Release
Over the centuries, the admiralty law has developed since the colonial times which are considered as a good ranging branch of law. The inception of the admiralty law are often traced right down to British legislations on the varied aspects like marine insurance, carriage of products by sea, ship sale and building contract, ship financing and ship mortgage etc. Therefore, the maritime law may be a distinct body which governs the maritime questions and therefore the offenses. It comprises of both the domestic also as private law of nations governing the connection between the private entities operating the vessels on the oceans and every one the opposite matters handling marine commerce, shipping, sailors, marine navigation and therefore the transportation of passengers and goods by sea. It also covers the commercial activities occurring ashore which are maritime in character.
With reference to the ship arrests in India, the Admiralty Court Act 1861, the Admiralty Court Act, 1890 and Admiralty Court Act 1891 would be applicable.
Ship arrest may be a process by during which a ship is prevented from trading or moving until the matter in question is set . it’s an exclusive jurisdiction that’s granted to an admiralty court to detain a vessel to secure a maritime claim.
Article 2 of the International Convention Relating to the Arrest of Sea-Going Ships, 1952 defines the term arrest as the following:
“(2) “Arrest” means the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment.”
Marine admiralty has this jurisdiction to stop a ship legally from moving or trading as long because the resolution of the concerned court action is pending. during this case the ship, which has authorized by the pertained commission to be arrested, is typically taken responsible in colligation with a claim instead of a warrant of arrest for its own sake. Here the ship is detained by judicial process so as to secure a maritime claim, but the bench warrant doesn’t imply the seizure of a ship in execution or gratification of a judgment.
A ship arrest could also be exercised under the authority of a court having admiralty jurisdiction, for the subsequent reasons:
- Loss of life
- Loss of property
- Execution of a decree
- Violation of customs, usages, regulations or norms
Jurisdiction And The Applicable Provisions of Law:
There are few courts which are authorised to exercise the admiralty jurisdiction. The three courts of Admiralty i.e., Bombay, Calcutta and Madras were having the precise jurisdiction. Such jurisdiction is coincident and extends towards the territorial coast line of India. During the course of your time , the supreme court of Calcutta, Bombay, madras, Gujarat, Andhra Pradesh and Orissa have the jurisdiction to entertain the admiralty matters.
Earlier, the Gujarat supreme court didn’t have the facility to exercise the Admiralty jurisdiction but with the passage of your time the cases for admiralty actions are filed before the court and for invoking the jurisdiction, not just vessel should be there but the explanation for action (wholly or partly) should also happen in Gujarat.
An order of the arrest of a ship passed from supreme court of Bombay are often executed in any Indian territorial water. within the appeal filed before the supreme court of Bombay, the court held that the admiralty jurisdiction extends throughout the territorial water of India. However, the appeal was filed before the Supreme Court of India regarding the jurisdiction but the Honourable Court held that such question of territorial jurisdiction didn’t require any consideration and was left open.
Whenever the question concerning the obtaining of order or arrest of ship comes, then the Bombay supreme court is preferred because the order passed from the court shall be applicable to the Indian Territorial Water wherever the ship is found. Such pan India Admiralty Jurisdiction in reference to the arrest is vest with the Bombay supreme court only but the opposite above mentioned supreme court has the Admiralty Jurisdiction.
When time comes for decision on which court of India one should approach for obtaining an order of arrest, Bombay supreme court is preferred as order for arrest of a vessel obtained from the Bombay supreme court are often executed anywhere in Indian body of water , wherever the vessel is found. Violation of customs, usages, regulations or norms
The Ship Arrest Procedure:
- A claimant executes the facility of Attorney to the one that can act on behalf of the claimant. Such Power of Attorney should be properly executed, notarized and legalized which is required to be stamped under the laws of India and has got to be shown before the court for the filing of the plaint.
- Notice is required to tend to the Consul General as per the principles of the High Court.
- Claimant shall file the plaint alongside the undertaking, draft the warrant of the arrest and therefore the affidavit before the court having the admiralty jurisdiction. All the opposite attachments and therefore the documents shall be filed at the time making the appliance for the arrest.
- Such application shall be moved before the Admiralty judge and therefore the order is passed or he can dictate the separate order for the arrest of a vessel.
After The Arrest:
Once the warrant of arrest is issued from the registry and the fee and the other expenses are deposited, the intimation shall tend to the Marshall or the authorized officer. The officer has the authority to rearrange the substitute in place of the arrested ship and therefore the plaintiff or his advocate shall provide a conveyance to the ship for the service. The Marshall and also the other officers are required to possess the undertaking from the plaintiff to form further deposits towards the expenses as incurred by him in reference to the custody of the ship under the arrest. They’re required to intimate the custom and harbour authorities of the arrest.
In case the ship is released upon the safety being furnished, unless compromised, the suit will proceed for the trial. There are certain cases, where the ship isn’t released due to the owner’s bankruptcy or the master or the crew may abandon the ship therefore the marshal or the authorized officers shall protect the ship and therefore the equipment in accordance with the regulations.
Release of the Ship Arrested:
A ship can only be released if the arresting party allows it to or the court orders for an equivalent . If the authority finds out a dispute over the worth of the claim, the claimant has got to provide an undertaking to pay on demand all the expenses associated with the arrest of ships. A third party can also claim to possess a right against the ship, that they need to enter into a contractual arrangement to stop any handling the ship or its release. However, this might enact the Court to obligate the third party pay the damage costs to the owner of the ship for the delay caused in its release.
The ship arrest is usually the quickest way of obtaining the safety against the claims or for recovering the unpaid dues. Such matter is taken into account to be straightforward and may be arranged at an inexpensive cost but just in case of the wrongful arrest the plaintiff has got to incur such cost. This can be the foremost suitable remedy for creditors, like owners who got to repossess the vessel, the suppliers who haven’t been paid or the outstanding wages of the crew members. Therefore, such arrests are relatively inexpensive and simple solution for obtaining the relief globally.
ILS Law College, Pune
(intern at Bhatt & Joshi Associates)