This Fact File aims to provide you with information about the rights that you are likely to have to arrest ships for most of the claims that are relevant to you in different countries, bearing in mind that the law of ship arrest will vary from country to country. For further information on the ship arrest in specific countries, see the Guides on Ship Arrest in specific countries on the website of Seafarers’ Rights International (‘SRI’) at www.seafarersrights.org. This Fact File should be used if there is no Guide on the specific country where you intend to arrest your ship.
During your employment as a seafarer you may experience different legal problems. These problems might not require a lawyer since the problem may be better dealt with by yourself invoking your rights under the Maritime Labour Convention 2006 (‘the MLC’) or by other means, such as, referring your complaint to port state control; involving trade unions or welfare organisations; using the procedures established by your employer or within your employment contract; or requesting assistance from your embassy, consulate and flag state.
This Fact File is not intended to be legal advice, nor does it constitute legal advice. To ensure the effective arrest of your ship you are strongly advised to consult a lawyer qualified to practise in the country where you intend to arrest the ship. For further information, see the Guides on the Use of Lawyers in specific countries, the Fact File on the Use of Lawyers and the list of lawyers who have subscribed to the SRI Charter of Good Practice for provision of legal Services to Seafarers on the website of SRI at www.seafarersrights.org.
THE MEANING OF SHIP ARREST
In 77 countries the arrest of ships is based on the national laws giving effect to the 1952 Brussels Convention on the Arrest of Sea-going Ships (‘the 1952 Convention’), while in 10 other countries the arrest of ships is based the 1999 International Convention on Arrest of Ships 1999 (‘the 1999 Convention’).
An arrest prevents the ship from leaving port. It is under the authority of a court or of the appropriate judicial authority. It is different to the detention of a ship under the MLC by port state control authorities since this is not a court supervised process. Your rights under the MLC are additional to your other rights. You may invoke your rights under the MLC or arrest the ship on the basis of your maritime lien or arrest a sister ship. You should take advice from a local lawyer as to your best course of action.
This Fact File is mostly based on the 1952 Convention. It also takes into account the three conventions governing maritime liens: the International Convention for the Unification of Certain Rules of Law Relating to Maritime Liens and Mortgages 1926 (‘the 1926 Convention’); the International Convention for the Unification of Certain Rules relating to Maritime Liens and Mortgages 1967 (‘the 1967 Convention’); and the International Convention on Maritime Liens and Mortgages 1993 (‘the 1993 Convention’).
THE CLAIMS FOR WHICH A SHIP CAN BE ARRESTED
Under the 1952 Convention a ship can only be arrested if there is a ‘maritime claim’ against the ship. The maritime claim must arise in connection with a ship.
The maritime claims most relevant to seafarers and for which you can arrest a ship are for wages; repatriation (including accommodation, food, water and medical care) and personal injury and death. Wages and personal injury and death are specifically covered in both the 1952 Convention and the 1999 Convention. Repatriation is also specifically mentioned in the 1999 Convention, and it would generally be covered as part of a claim for wages under the 1952 Convention.
ARRESTING A SHIP TO CLAIM FOR WAGES OR ABANDONMENT
Your claim for unpaid wages or repatriation in the event of your abandonment (which will generally be secured by a maritime lien under the 1926 Convention, the 1967 Convention and the 1993 Convention) can be enforced against the ship to which you rendered your service under the 1952 Convention.
Your right to wages and a maritime lien arises independently of the identity and personal liability of your employer and generally it makes no difference whether or not, for example, your employer is the shipowner, charterer, manager or operator of the ship or any other person. Your right to wages, enforceable by a maritime lien, arises once you have rendered lawful services to your ship, regardless of any other considerations.
Depending on your employment agreement and the circumstances of your case, you may still continue to earn wages while you enforce your claim for unpaid wages in court. You will generally not be required to stay on board your arrested ship, or in the country, while your claim for wages and/or repatriation is enforced in court, but in some jurisdictions you may be required to stay in the country, or return to the country, should you be required to attend court to testify as a witness. For further information on your maritime lien for wages and repatriation, see the Guides on Maritime Liens for Wages in specific countries and the Fact File on Maritime Liens for Wages on SRI’s website at www.seafarersrights.org.
ARRESTING A SHIP TO CLAIM FOR PERSONAL INJURY OR DEATH
Your claim for personal injury or death (which will generally be secured by a maritime lien under the 1926 Convention, the 1967 Convention and the 1993 Convention) can be enforced against the ship under the 1952 Convention or the 1999 Convention.
If neither of these conventions is enacted and a maritime lien arises under a foreign law, then the local national law of the court where your maritime the claim is proceeding will determine whether your maritime lien under foreign law will be recognized and enforced and, if so, how it will be ranked.
THE COURTS WHICH HAVE JURISDICTION OVER YOUR MARITIME CLAIM
Under the 1952 Convention, the court of the country in which the arrest is made has jurisdiction to determine the case upon its merits if the national law of the country in which the arrest is made gives jurisdiction to the court. So, when your ship is in a port, the court which has jurisdiction over that area will generally also have admiralty jurisdiction over your maritime claim.
The jurisdiction of the court to hear and determine your maritime claim will generally be available to you whether the particular ship or a sister ship is to be arrested. The jurisdiction of the court generally exists regardless of your nationality and of your employer, of the flag of the ship.
Occasionally the court may decline to exercise its jurisdiction if the shipowner can show that there is another court which is more appropriate to hear and determine your maritime claim. But the court will, as a general rule, not decline to exercise its jurisdiction if this would do you an injustice by leaving you with no other court or tribunal to decide your maritime claim.
THE ADVANTAGES OF SHIP ARREST
Your right to arrest a ship gives you several advantages in most countries. Subject to the national law, it gives you jurisdiction over the ship in a convenient and advantageous place to bring a maritime claim against the shipowner. It enhances the chances of your maritime claim being settled since the shipowner may want to avoid the commercial disruption caused by an arrest. If no settlement is reached it should provide you with pre-judgment security for your maritime claim. And, finally, as a result of the arrest of the ship you will most probably be regarded as a secured creditor and should not therefore be regarded as an unsecured creditor, being adversely affected by the insolvency of the shipowner’s company.
THE ISSUES TO BE DISCUSSED WITH YOUR LAWYER WHEN DECIDING TO ARREST A SHIP
When you are deciding whether or not to arrest a ship and, if so, in which country you should instruct a lawyer since ship arrest is a specialist area of the law and a lawyer will most probably be required to apply for the arrest. For further information, see the Guides on Using Lawyers in specific countries, the Fact File on the Use of Lawyers, the Lawyers Charter, and the list of lawyers on SRI’s website at www.seafarersrights.org.
Your lawyer will need to be satisfied that you have maritime claim under the 1952 Convention or the 1999 Convention or the national law that would allow a ship arrest. If your ship is not already under arrest, then you should check that the vessel can be arrested. Some countries have a process that allows the shipowner to lodge with the court a ‘caveat or caution against arrest.’ This process prevents the ship from being arrested, but only in return for prompt financial security being given for your claim.
THE SHIPS THAT CAN BE ARRESTED
Under the 1952 Convention, you may arrest the particular ship in respect of which the maritime claim arose and to which your maritime lien attaches. The maritime lien gives you prejudgment security for your maritime claim by entitling you to arrest the ship even if it has been sold to a new owner, or passed into the possession or control of a new charterer, manager, operator or any other third party. The fact that you had no legal relationship with the new person at the time your maritime lien arose should not prevent you from arresting his ship.
Under the 1952 Convention, instead of arresting the particular ship to which your maritime lien attaches, you may arrest any other ship which is owned by the shipowner who was, at the time when your maritime claim arose, the owner of the particular ship. The arrest of a ship, other than the ship to which your maritime lien attached, is referred to as the arrest of a sister ship. The national laws governing the arrest of sister ships under the 1952 vary somewhat between countries and, as a general rule, a maritime lien does not attach to a sister ship. National law will also determine whether you can by agreement give up your maritime lien.
THE FINANCIAL CONSIDERATIONS OF ARRESTING A SHIP
If the shipowner is not in financial difficulty and his ship is to be arrested, the shipowner may offer another form of financial security so that his ship can be released quickly. In such circumstances, it would be common for a letter of undertaking from the ship’s protection and indemnity club or a bank guarantee to be offered to you as security for your maritime claim so that the ship can continue to sail.
If, however, the shipowner is in financial difficulty and the ship is valuable, other parties interested in the ship continuing its voyage (such as the charterer, cargo-owner or ship’s bankers or insurers) may negotiate the provision of financial security in return for the ship’s release. If, for example, a bank has a mortgage on the ship that it is in the process of enforcing, it may pay off your maritime claim to make the payment of its maritime claim simpler.
If the shipowner is in financial difficulty and the ship is of little value, a different financial estimation is necessary. This estimation is based on the value of the proceeds raised by the sale of the ship ordered by the court. This forced sale does not always realise the best price, which is often the scrap value of the ship. The likely remaining value of the proceeds needs to be estimated after deducting from the proceeds of the forced sale the value of all the maritime claims having the same or higher ranking of your maritime claim.
It is only if these other maritime claims can be paid from the likely proceeds of a forced sale that an arrest is likely to result in your maritime claim being fully or partially paid. In order to make this estimation it is necessary to understand the ranking of your maritime claims.
THE RANKING OF YOUR MARITIME CLAIM
When you have a favourable judgment, the ship will be sold by order of the court. All the maritime claims against the ship, including your maritime claim, are ranked in order of priority for the purpose of being paid from the proceeds of the sale. The maritime claims are ranked if the proceeds of the sale are insufficient to pay all the claims.
Under the 1926 Convention, the maritime claims are ranked as follows: (1) law costs due to the state and expenses incurred in the interest of the maritime claimants to preserve the ship and to procure its sale; tonnage dues, light or harbour dues, and other public taxes, pilotage dues, the cost of watching and preserving the ship; (2) your maritime claim arising out of your seafarer’s agreement; (3) your maritime claim for salvage and the contribution of the ship in general average; (4) claims for collision or other accident of navigation and also for damage caused to works forming part of harbours, docks, and navigable ways and your maritime claim for personal injury. The 1967 Convention and the 1993 Convention provide for somewhat similar rankings and, as a general rule, if your maritime claim is secured by a maritime lien your maritime claim should enjoy a high ranking and be paid before many other claims.
But if you have arrested a sister ship, then as a general rule subject to different national law, your maritime lien will not attach to the sister ship; and, since you will have no maritime lien, your maritime claim will not be ranked as highly as it would if secured by a maritime lien.
There are other costs, which you should also take into account, including your lawyer’s fees, and court fees which generally are payable in advance so that the ship can be arrested. Keeping a ship under arrest until the court decides on your maritime claim is expensive. The court may require a deposit or other form of financial security from you. Sometimes the court will agree to speed up the hearing of the claim or order the arrested ship to be sold and the proceeds held in court until your maritime claim is decided by the court. In some countries, if the ship arrest is made negligently or without probable cause or in bad faith, any person suffering loss or damage as a result of the arrest may be able to sue you for that wrongful arrest. There is an additional risk that you may be required by the court to provide financial security for the possibility of such a claim for wrongful arrest.
In order to estimate as accurately as possible the ranking of your maritime claim and the likelihood of whether your maritime claim will be paid, you should take advice from a local lawyer.
ARRESTING A SHIP CHECKLIST
- Decide if it is to your advantage to arrest a ship instead of seeking to enforce your rights under the complaints procedures of the MLC.
- If you decide to arrest a ship, instruct a lawyer.
- Determine whether you have a maritime claim for which a ship can be arrested.
- Decide in which port you will have the ship arrested.
- Decide whether you will arrest the particular ship or a sister ship.
- Estimate the value of the ship to be arrested after a forced sale by the court.
- Determine the ranking of your maritime claim.
- Take into account your lawyer’s and the court’s fees, the costs of keeping the ship under arrest, the possibility of an early forced sale of the ship, and the financial security that may be required from you.
- Consider the risk of a claim for wrongful arrest.
- You may release the arrested ship upon sufficient bail or other security being furnished.