The concept of ship arrest is of paramount importance to the international shipping and trading community. It has been the subject of divergent approaches of various legal systems. The system of Civil Law permits arrest to claim against the owner of the ship even if it was not maritime. As per the common law, a ship could only be arrested for a very limited number of maritime claims.
The interests of different sectors of the industry vary regarding the subject. While the interest of owners of ships and cargo lies in ensuring that international trading is not interrupted by the unjustified arrest of a ship, the claimants are primarily interested in being able to obtain security for the enforcement of their legitimate claim by way of arrest.
Definition of “arrest”: article 1(2)
Article 1(2) of the 1999 Arrest Convention defines arrest and also clarifies that the Arrest Convention only deals with pre-trial arrest for obtaining security for the enforcement of a maritime claim. The Convention defines as it not only covers detention but also covers “restriction on removal” of a ship by order of a court to secure a maritime claim, not including the seizure of a ship in execution or satisfaction of a judgment “or another enforceable instrument”.
Marine admiralty has the jurisdiction to prevent a ship legally to move or trade as far as the resolution of the concerned court action is pending. Here, the ship that has been authorized to be arrested by the pertained commission is taken in charge of colligation based on a claim rather than a warrant of arrest for its own sake.
The ship is detained by judicial process to secure a maritime claim, however, the arrest warrant does not imply the seizure of a ship in execution or gratification of a judgment.
UAE and Marine jurisdiction
The UAE is an arrest-friendly jurisdiction. But several legal and procedural aspects must be taken into consideration before effecting the arrest order, which are highlighted below:
- The arresting party needs to prove to the court that his debt is considered a maritime debt – the bill of lading or charter party to that effect would be sufficient evidence;
- The legal experts must produce an official Power of Attorney that is being issued from the arresting party and such POA needs to be notarized and attested by the UAE embassy in the origin country;
- An undertaking in writing is to be submitted by the arresting party to indemnify against any loss and damage that is raised due to the arrest if the court discovers that the arrest application was filed without justification and the case was maliciously filed;
- The courts can ask for deposition of security in the court; such security might be up to USD 500,000 depending on the value of the claim; and
- All documents supporting the application have to be translated into Arabic (for UAE) by a sworn translator.
A word of caution
Implementation of ship arrest can cause severe disruption to a ship and its owners. But the criteria for the arrest of ships must ensure to have satisfied in the relevant jurisdiction or else a warrant for wrongful arrest unlawfully may ensue. This would lead to termination of the case and cost the claimant the severe expenses for the impairment caused. Hence, both the owner of the ship as well as the claimant for ship arrest needs to be aware of this fact.