IMPLEMENTATION OF THE l952 ARREST CONVENTION
Responses of the British Maritime Law Association
Professor Nicholas Gaskell and
Institute of Maritime Law
University of Southampton
1 With assistance from Richard Shaw, Institute of Maritime Law, University of Southampton.
1. How has the Convention been implemented by your Country?
1.1. Has the Convention in its original text been given force of law?
1.2. Have its provisions been incorporated in whole or in part in your domestic legislation? If so, please let me have a copy of the act.
1.1 The UK is a party to the 1952 Arrest Convention but the original text of the latter has not been specifically reproduced by the U.K. Parliament, or given the force of law as is now customary for other international maritime conventions, such as the 1989 Salvage Convention.
1.2 The Administration of Justice Act 1956 and subsequently the Supreme Court Act 1981 were enacted with the purpose (amongst others) of giving effect to the 1952 Arrest Convention in English law, although the latter is not mentioned anywhere in them. However, English courts are ready to consider the provisions of the 1952 Arrest Convention in order to construe the wording of the statutes, The Eschersheim  2 Lloyds Rep. 1, The Banco  1 Lloyds Rep. 49, The Kommunar (No.2)  1 Lloyds Rep.8.
The result of such incorporation in domestic law has been that there have arguably been differences between English law and the text of the 1952 Arrest Convention. In England, arrest of ships is available only in the context of an action in rem, see the answers to questions 4 and 11, below. Scottish law has a system of Admiralty "arrestments" which has some conceptual and terminological differences from arrest in English law and has features which are consistent with a continental civil law approach. Scottish law arrestments in admiralty are still governed by provisions of the Administration of Justice Act 1956, but this area of law is currently under revision as a result of the "Report on Diligence on the Dependence and Admiralty Arrestments", produced by the Scottish Law Commission (Scot Law Com No 164, 1998). The responses to the questions are therefore generally based upon the position in English law, although there are great similarities between the two systems. Scottish law appears to differ more in terms of remedies and procedure (and see the answer to question 9, below).
2. If the mechanism under (2) above has been adopted, have additional rules been enacted in order to fully implement the provisions of the Convention? If so, please let me have a copy.
2. There have been additional, mainly procedural, rules like the Rules of the Supreme Court (R.S.C.) Order 75 or the new Civil Procedure Rules (CPR) which have replaced Order 75 as from 26 April 1999. There is a new Admiralty Practice Direction 49F, paragraph 6 of which now sets out the appropriate procedure in maritime arrest cases. Those Rules, however, are not specifically designed to implement the 1952 Arrest Convention, as such, but reform the whole of the English Rules of civil procedure. Nevertheless, they are directly relevant to arrest actions. The text of the Rules and the Practice Directions can be found on the Web at <http://www.open.gov.uk/lcd/civil/procrules_fin>. It should be noted that there have already been changes to the Rules and Practice Directions, even since their introduction.
3. How has been interpreted the definition of "Claimant" and, in particular, the words "a person who alleges that a maritime claim exists"? Is the mere allegation by the claimant sufficient or is the claimant required to provide a prima facie evidence of his claim?
3. There is no separate definition of claimant, but the claimant is not required to provide prima facie evidence of its claim, as such, because they is no formal hearing at which such evidence is considered. It has been said by Professor Jackson, (Enforcement of Maritime Claims, 2nd ed., 1996, p. 341) that arrest is largely an administrative, rather than a judicial, act. There is an "entitlement" to arrest, under paragraph 6.1 of Admiralty Practice Direction 49F, provided however, that the claimant follows a procedure in which its solicitor swears that certain information is believed to be true, i.e. it must swear to its allegations. Under paragraph 6.2(3) of Admiralty Practice Direction 49F, the court has discretion to give permission to issue an arrest warrant even if all the particulars set out below are not provided.
According to paragraph 6.1 of Admiralty Practice Direction 49F, the claimant in a claim in rem is entitled to arrest the property proceeded against by filing the new Form ADM4 which contains an application to arrest and an undertaking. In this Form there is a personal undertaking by the applicant solicitor to pay the fees of the Admiralty Marshal and all his expenses connected with the arrest, including the care and custody of the vessel while under arrest. According to paragraph 6.3 of Admiralty Practice Direction 49F, when filling the application to arrest the claimant must file a declaration. The latter declaration, now in the new Form ADM5, must, according to paragraph 6.2(4)(a), state the nature of the claim, the fact that it has not been satisfied, the name and port of registry of the ship and the amount of security sought. The declaration must be sworn as an "affidavit", which is in effect what was previously required).
Amongst the information which is required in the declaration is the name of the ship, the amount of the security sought and whether the claim is against the ship in respect of which the claim arose or a sister ship. The declaration must say that the solicitor believes that a particular person would be liable in personam and that set out the grounds for the belief. It must also state that the person liable had the appropriate connection with the ship, e.g. as shipowner or charterer, and set out the grounds for that belief. Similarly, the grounds for belief in the beneficial ownership of the ship should be set out.
If the arrest of a "sister ship" is sought then the declaration must state the name of the person who would be liable on the claim if it were commenced in personam, and that the latter was when the cause of action arose the owner or charterer of or in possession or in control of the ship in connection with which the claim arose, specifying which, and finally that at the time when the claim form was issued that person was either the beneficial owner of all the shares in the ship in respect of which the warrant is required or the charterer of it under a charter by demise.
4. Does the prohibition to arrest a ship in respect of a claim which is not listed in Article 1(l) mean that national maritime liens securing claims other than those listed in Article l(1) cannot be enforced by means of the arrest of the ship?
4. Because of the way the 1952 Arrest Convention has been incorporated into English law, arrest is available whenever an action in rem against a ship is available. It so happens that all claims secured by a maritime liens under English law are found in the list set out in s. 20(2) of the Supreme Court Act 1981 (and in Art. 1of the Arrest Convention 1952). There is a maritime lien recognised in English law for the obsolescent action for respondentia, but this type of claim is listed neither in the Arrest Convention 1952, nor in the Supreme Court Act 1981. Section 21(3) of the Supreme Court Act 1981 provides that an Admiralty action in rem may be brought in any case where there is a maritime lien, which thus confers the jurisdiction to arrest the ship or aircraft to which that maritime lien is attached. This section therefore theoretically grants jurisdiction to arrest for a claim secured by a national maritime lien not listed in Art. 1(1) of the Arrest Convention 1952, but in reality there is no such claim in English law. According to, s. 21(4), an action in rem is available for a list of claims, contained in s. 20(2) which is largely the same as the list of maritime claims contained in Art. 1(1) of the 1952 Arrest Convention. The wording is, however, not identical. Thus, the Supreme Court Act 1981 has already been amended to allow for arrest for any claim under the 1989 Salvage Convention, which is wider than the mere reference to "salvage" in Art. 1(c).
5. Has Article 3(1) been interpreted to the effect that, except when the claim is secured by a maritime lien, the ship in respect of which the claim has arisen may be arrested provided it is still owned by the debtor at the time of arrest?
5. The relevant provision of the Supreme Court Act 1981 is s. 21(4), which resembles Art. 3(1) of the 1952 Arrest Convention. Section 21(4) states "in the case of any such claim as is mentioned in s. 20(2)(e) to (r) where (a) the claim arose in connection with a ship and (b) the person who would be liable on the claim in an action in personam ("the relevant person") was, when the cause of action arose, the owner or charterer of, or in possession or in control of the ship, an action in rem may .... be brought in the High Court against: a) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or b) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it." Thus, the effect of that provision is that when the action is brought, an in rem claim form is issued (CPR Practice Direction 49F, paragraph 2.1(1)), and the person liable in personam for the claim is the owner or demise charterer of the ship, the latter can be arrested.
Moreover, it seems that the ship may be arrested, even if ownership has changed hands after the time when the action is brought, e.g. the issuing of the claim form (formerly the writ) and the arrest being actually effected, The Monica S  2 Lloyds Rep. 113, The Helene Roth  1 Lloyds Rep. 477. Although note that CPR Practice Direction 49F, paragraph 6.2(6) states that a warrant of arrest may not be issued as of right, and therefore an arrest may not be effected, in the case of property in respect of which the beneficial ownership, as a result of a sale or disposal by any court exercising Admiralty jurisdiction, has changed since the claim form (the old writ) was issued.
6. Is it permitted by your law to pierce the corporate veil and, if so, in which circumstances?
6.1. How has Article 3(2) been interpreted in this respect?
6. Piercing the corporate veil is allowed in England in exceptional circumstances.
6.1 The relevant provision resembling Art. 3(2) of the 1952 Arrest Convention is s. 21(4) of the Supreme Court Act 1981, mentioned in the answer to question 5, above.
Courts will allow the piercing of the corporate veil in cases where either the company form has been created and used as a way to avoid existing liabilities or duties imposed by law, The Evpo Agnic  1 WLR 1090, The Maritime Trader  2 Lloyds Rep. 153, The Saudi Prince  2 Lloyds Rep. 255, or when a sham transaction has taken place and ownership of the ship has changed hands after the liabilities arose so that the ship cannot be used to satisfy the claimants, The Tjaskemolen  2 Lloyds Rep. 465. In both cases, the courts will examine the motive behind the use of the corporate form, Adams v. Cape Industries  1 All ER 929 and Ord v. Belhaven Pubs Ltd.  2 BCLC 447. It appears that Scots law would follow the approach taken in England (see the 1998 Report referred to in the answer to question 1, at p.167).
7. How has Article 3(4) been interpreted?
7.1 Can a ship be arrested in respect of a claim against the demise charterer? If so, can the claim be enforced through the forced sale of the ship?
7.2 Has the final sentence of Article 3(4) reading
The provisions of this paragraph shall apply to any case in which a person other than the registered owner of a ship is liable In respect of a maritime claim relating to that ship
been interpreted so to permit the arrest of a ship also in respect of claims against persons other than the demise charterer, such as the time charterer, the voyage charterer, the agent or manager of the ship7
7.3 Has Article 9 been considered relevant for the purpose of interpreting Article 3(4)?
7. Article 3(4) has been described as "controversial and difficult to interpret" (see 1998 Report of the Scottish Law Commission, referred to in the answer to question 1, at p.164) and its drafting was criticised in The Span Terza  1 Lloyds Rep. 225.
7.1 A ship can be arrested in respect of a claim against the demise charterer, see Supreme Court Act 1981, s. 21(4), question 5, above. The claim can be enforced through the forced sale of the ship.
7.2 It has been held that s. 3(4) of the Administration of Justice Act 1956 (which is now largely re-enacted in s. 21(4) of the Supreme Court Act 1981) applies in cases involving time charterers, The Span Terza  1 Lloyds Rep. 225, although the dissenting judge, Donaldson LJ, considered that the reference to "charterer" was confined to demise charterers. In a recent case it was also held that s. 21(4) of the Supreme Court Act 1981 applied in cases involving slot charterers, as they are a species of voyage charter, The Tichy  2 Lloyd's Rep. 11.
7.3 There is nothing in the Supreme Court Act 1981 to suggest that Art. 9 of the 1952 Arrest Convention is considered relevant for the purpose of interpreting s. 21(4). This is mainly because there is no express reference to Art. 9 in English law. The Scottish Law Commission in its 1998 Report (referred to in the answer to question 1) noted that there were problems if time and voyage charterers were covered and stated, at p.165, that there is "the further difficulty that if Art. 9 can be invoked so as to preclude the creation by the final sentence in Art. 3(4) of maritime liens and hypothecs, it is difficult to see what that final sentence does in fact mean."
8 Which type of security is required in order to obtain the release of the ship?
8.1 A cash deposit?
8.2 A bank guarantee?
8.3 A letter of undertaking of a P&I Club?
8. R.S.C., Ord. 75, r.16 laid down detailed rules as to bail bonds, but it appears that the bail bond has been abolished in the CPR. A bail bond was a promise to pay which was usually backed by the security of a guarantor. Ultimately, the amount and form of security may now be for the court , see paragraph 6.7(2) of Admiralty Practice Direction 49F. There seems to be some doubt as to the extent of the courts powers under the CPR as to the type of security, as paragraph 6.7(3) refers expressly only to the power to reduce the amount of security, but it appears to be for the court to satisfied as to the sufficiency and acceptability of the surety (Jackson, op. cit., p. 343). Under paragraph 12 there is power for agreements between solicitors to become orders of the court. All three types of security have been used in order to obtain release of the ship from arrest, but it will normally be for the claimant in the first instance to agree the form of security.
9 Is the claimant liable in case of wrongful or unjustified arrest?
9. In the absence of proof of mala fides or gross negligence the claimant is not liable in damages for having arrested a vessel, The Evangelismos (1858) 12 Moo. P.C. 352, The Strathnaver  1 AC 58, and The Kommunar (No.3)  1 Lloyds Rep. 22. Mala fides must be taken to exist in those cases where the arresting party has no honest belief in its entitlement to arrest the ship, The Kommunar (No.3), at p. 30. Gross negligence covers those situations where objectively there is so little basis for the arrest that it may be inferred that the arrestor did not believe in its entitlement to arrest the ship or acted without any serious regard to whether there were adequate grounds for the arrest of the vessel, ibid. In general, then, it is very difficult for the shipowner to obtain a remedy unless it can show the narrow category of "wrongful" arrest, described above. There is no question of damages being awarded for "unjustified" arrest, in the sense simply that the claim failed on the merits. It should be noted that the Scottish Law Commission has recently recommended that Scots law should differ from English law by moving closer to a continental system giving a remedy for unjustified arrestments based on a strict liability (see 1998 Report referred to in the answer to question 1, at p.140).
According to paragraph 6.3(3) of Admiralty Practice Direction 49F, if there is a "caveat against arrest" and an arrest is made, the Admiralty Court may, if it considers that it is appropriate to do so, order the party procuring the arrest to pay compensation to the owner or other party interested in the ship arrested. A "caveat against arrest" provides a system whereby a potential defendant can file a notice in the Admiralty and Commercial Registry, undertaking in advance to file an acknowledgement of service of the claim and to provide security.
Note that English Law also recognises a "caveat against release" (much more commonly used that the caveat against arrest) which gives the right to a potential claimant to register his interest in the ship arrested or threatened with arrest, without incurring the cost and formality of an application for arrest.
10 Is the claimant normally required to provide security for damages in case of wrongful arrest? If so, how is the amount of the security determined?
10. The claimant is not normally required to provide security for damages in case of wrongful arrest, as defined in the answer to question 9, above. The Scottish Law Commission has recently recommended that Scots law should differ from English law by empowering the court to demand counter-security to cover damages for wrongful or unjustified arrestment (see 1998 Report referred to in the answer to question 1, at p.140).
Note that under the Civil Jurisdiction and Judgments Act 1982 s. 26(2), where a court stays Admiralty proceedings, e.g. on the basis that the dispute should be referred elsewhere because of an arbitration or jurisdiction clause, it may attach such conditions to the order as it thinks fit. In theory, this might allow for a cross undertaking in damages to be given by the person effecting the arrest. It appears that there has been a reluctance to exercise this power (see The Bazias 3 and 4  1 Lloyd's Rep. 101), but there may be cases where it could be ordered (see Jackson, op. cit., p. 331).
11. Have your Courts jurisdiction on the merits in respect of any claim for which a vessel has been arrested or only in respect of those listed in Article 7(1)(a)-(f)?
11. Arrest is available only in the context of the action in rem. The action in rem, along with the action in personam, are the two modes of exercise of admiralty jurisdiction. The Supreme Court Act 1981, ss. 20(1)(a), 20(2) provide a list of claims to which the Admiralty jurisdiction of the High Court extends. According to s. 20(7) of the Supreme Court Act 1981 those provisions apply in relation to all ships whether British or not wherever the residence or domicile of their owners may be, and all claims wherever they arise. See The Anna H  1 Lloyds Rep. 11. It follows that there is generally jurisdiction on the merits and not simply for those claims listed in Art. 7(1)(a)-(f). In the English system there is, therefore, an intimate linking between jurisdiction and arrest. An arrest under the action in rem is a basis for jurisdiction on the merits of the case.
12. Is there any statutory provision on the time limit within which proceedings on the merits must be commenced before the Court having jurisdiction or is the time fixed by the Court in whose Jurisdiction the arrest is made, as provided by Article 7(2)?
12. According to Civil Jurisdiction and Judgments Act 1982, s. 26(1) and (2) where a court stays Admiralty proceedings on the ground that the dispute in question should be submitted to the determination of the courts of an overseas country the court may, if in those proceedings property has been arrested or bail or other security has been given to prevent or obtain release from arrest, order that the property in respect of the dispute in the legal proceedings in favour of which those proceedings are stayed or dismissed, ..., or order that the stay or dismissal of those proceedings be conditional on the provision of equivalent security for the satisfaction of any such award or judgment. Where the court makes such an order it may attach such conditions to the order as it thinks fit, in particular conditions with respect to the institution or prosecution of the relevant legal proceedings. Accordingly, the court may set a time limit in which legal proceedings on the merits of the case ought to commence.
13. Are the provisions of the Convention applied also in respect of ships flying the flag of non-Contracting States?
13. As noted in the answer to question 1, above, the 1952 Arrest Convention was not given the force of law by Parliament, nor was reference made to convention parties. The Supreme Court Act 1981, s. 20(7) states that the provisions regarding the Admiralty jurisdiction of the High Court apply to all ships whether British or not and all claims wherever arising. Paragraph 6.2(7) of the Admiralty Practice Direction 49F provides that there shall be no arrest of certain state-owned ships, where the U.K. has an international obligation to minimise the possibility of arrest of ships of that state, unless certain procedural notices have been served on consular officers: see also the answer to question 15, below.
14. Can such vessels be arrested also in respect of claims other than the maritime claims enumerated in Article 1(1)?
14. As noted in the answer to question 4, above, arrest is available only in the context of the action in rem. Whenever such an action is brought against a ship then arrest of that ship is possible. The Supreme Court Act 1981, s. 21 states the cases when the Admiralty jurisdiction of the High Court can be exercised through an action in rem. An action in rem can be generally brought against a ship for most of the claims listed in Supreme Court Act 1981, s. 20(2) which is broadly similar to the one in Art. 1(1) of the 1952 Arrest Convention.
15. Has the provision of Article 8(3) been applied in your Country?
15. According to Admiralty Practice Direction 49F, paragraph 6.2(7) no warrant of arrest will be issued against a ship owned by a State where, by any convention or treaty, the United Kingdom has undertaken to minimise the possibility of arrest of ships of that State until notice has been served on a consular officer at the consular office of that State in London or the port at which it is intended to cause the ship to be arrested and a copy of the notice is exhibited to the declaration filed: see the answers to question 13 and 3, above.
The U.K. and the Soviet Union entered into such an undertaking as respects such ships and cargo on board them, see Articles 2 and 3 of the 1977 Protocol to the 1968 Treaty on Merchant Navigation between the U.K. and the Union of Soviet Socialist Republics, the relevant provisions of which were brought into force in English law by the State Immunity (Merchant Shipping)(Union of Soviet Socialist Republics) Order 1978 (S.I. 1978 No. 1524). The provisions of the Order took precedence over the provisions of the State Immunity Act 1978, s. 13(4) whereby arrest will lie in respect of commercial activities. There were doubts about the extent of the Order after the break up of the Soviet Union (see The Guiseppe di Vittorio  1 Lloyd's Rep. 136), but the Merchant Shipping (Sovereign Immunity) Order 1997 (S.I. 1997 No. 2591) extended protections to Georgia and the Republic of Ukraine, in addition to the Russian Federation. However, the State Immunity (Merchant Shipping) (Revocation) Order 1999 (S.I. 1999 No. 668) revoked the 1997 Order and came into force on 29th April 1999, the date on which the UK's termination of the Protocol took effect.
Supreme Court Act 1981, ss. 20-23
Admiralty jurisdiction of High Court
20.(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say
- jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);
- jurisdiction in relation to any of the proceedings mentioned in subsection (3);
- any other Admiralty jurisdiction which it had immediately before the commencement of this Act; and
- any jurisdiction connected with ships or aircraft which is vested in the High Court apart from this section and is for the time being by rules of court made or coming into force after the commencement of this Act assigned to the Queens Bench Division and directed by the rules to be exercised by the Admiralty Court.
(2) The questions and claims referred to in subsection (1)(a) are
- any claim to the possession or ownership of a ship or to the ownership of any share therein;
- any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;
- any claim in respect of a mortgage of or charge on a ship or any share therein;
- any claim for damage received by a ship;
- any claim for damage done by a ship;
- any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or default of
- the owners, charterers or persons in possession or control of a ship; or
- the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible,
being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
- any claim for loss of or damage to goods carried in a ship;
- any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;
- any claim
- under the Salvage Convention 1989;
- under any contract for or in relation to salvage services; or
- in the nature of salvage not falling within (i) or (ii) above;
or any corresponding claim in connection with an aircraft;
- any claim in the nature of towage in respect of a ship or an aircraft;
- any claim in the nature of pilotage in respect of a ship or an aircraft;
- any claim in respect of goods or materials supplied to a ship for her operation or maintenance;
- any claim in respect of the construction, repair or equipment of a ship or in respect of dock charges or dues;
- any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages);
- any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;
- any claim arising out of an act which is or is claimed to be a general average act;
- any claim arising out of bottomry;
- any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship. or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty.
(3) The proceedings referred to in subsection (1)(b) are
- any application to the High Court under the Merchant Shipping Act 1995;
- any action to enforce a claim for damage, loss of life or personal injury arising out of
- a collision between ships; or
- the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships; or
- non-compliance, on the part of one or more of two or more ships, with the collision regulations;
- any action by shipowners or other persons under the Merchant Shipping Act 1995 for the limitation of the amount of their liability in connection with a ship or other property.
(4) The jurisdiction of the High Court under subsection (2)(b) includes power to settle any account outstanding and unsettled between the parties in relation to the ship, and to direct that the ship, or any share thereof, shall be sold, and to make such other order as the court thinks fit.
(5) Subsection (2)(e) extends to
- any claim in respect of a liability incurred under Chapter III of Part VI of the Merchant Shipping Act 1995; and
- any claim in respect of a liability falling on the International Oil Pollution Compensation Fund, or on the International Oil Pollution Compensation Fund 1992, under Chapter IV of Part VI of the Merchant Shipping Act 1995.
(6) In subsection (2)(j)
- the "Salvage Convention 1989" means the International Convention on Salvage, 1989 as it has effect under section 224 of the Merchant Shipping Act 1995;
- the reference to salvage services includes services rendered in saving life from a ship and the reference to any claim under any contract for or in relation to salvage services includes any claim arising out of such a contract whether or not arising during the provision of the services;
- the references to a corresponding claim in connection with an aircraft is a reference to any claim corresponding to any claim mentioned in sub-paragraph (i) or (ii) of paragraph (j) which is available under section 87 of the Civil Aviation Act 1982.
(7) The preceding provisions of this section apply
- in relation to all ships or aircraft, whether British or not and whether registered or not and wherever the residence or domicile of their owners may be;
- in relation to all claims, wherever arising (including, in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land); and
- so far as they relate to mortgages and charges, to all mortgages or charges, whether registered or not and whether legal or equitable, including mortgages and charges created under foreign law;
Provided that nothing in this subsection shall be construed as extending the cases in which money or property is recoverable under any of the provisions of the Merchant Shipping Act 1995.
Mode of exercise of Admiralty jurisdiction
21.(1) Subject to section 22, an action in personam may be brought in the High Court in all cases within the Admiralty jurisdiction of that court.
(2) In the case of any such claim as is mentioned in section 20(2)(a), (c) or (s) or any such question as is mentioned in section 20(2)(b), an action in rem may be brought in the High Court against the ship, or property in connection with which the claim or question arises.
(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, an action in rem may be brought in the High Court against that ship, aircraft or property.
(4) In the case of any such claim as is mentioned in section 20(2)(e) to (r), where
- the claim arises in connection with a ship; and
- the person who would be liable on the claim in an action in personam ("the relevant person") was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship,
an action in rem may (whether or not the claim gives rise to maritime lien on that ship) be brought in the High Court against
- that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or
- any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it.
(5) In the case of a claim in the nature of towage or pilotage in respect of an aircraft, an action in rem may be brought in the High Court against that aircraft if, at the time when the action is brought, it is beneficially owned by the person who would be liable on the claim in an action in personam.
(6) Where, in the exercise of its Admiralty jurisdiction, the High Court orders any ship, or other property to be sold, the court shall have jurisdiction to hear and determine any question arising as to the title to the proceeds of sale,
(7) In determining for the purposes of subsections (4) and (5) whether a person would be liable on a claim in an action in personam it shall be assumed that he has his habitual residence or a place of business within England or Wales.
(8) Where, as regards any such claim as is mentioned in section 20(2)(e) to (r), a ship has been served with a writ or arrested in an action in rem brought to enforce that claim, no other ship may be served with a writ or arrested in that or any other action in rem brought to enforce that claim; but this subsection does not prevent the issue, in respect of any one such claim, of a writ naming more than one ship or of two or more writs each naming a different ship.
Restrictions on entertainment of actions in personam in collision and other similar cases
22.(1) This section applies to any claim for damage, loss of life or personal injury arising out of
- a collision between ships; or
- the carrying out of, or omission to carry out, a manoeuvre in the case of one or more of two or more ships; or
- non-compliance, on the part of one or more of two or more ships, with the collision regulations.
(2) The High Court shall not entertain any action in personam to enforce a claim to which this section applies unless
- the defendant has his habitual residence or a place of business within England or Wales; or
- the cause of action arose within inland waters of England or Wales or within the limits of a port of England or Wales; or
- an action arising out of the same incident or series of incidents is proceeding in the court or has been heard and determined in the court.
In this subsection
"inland waters" includes any part of the sea adjacent to the coast of the United Kingdom certified by the Secretary of State to be waters falling by international law to be treated as within the territorial sovereignty of Her Majesty apart from the operation of that law in relation to territorial waters;
"port" means any port, harbour, river, estuary, haven. dock, canal or other place so long as a person or body of persons is empowered by or under an Act to make charges in respect of ships entering it or using the facilities therein, and "limits of a port" means the limit thereof as fixed by or under the Act in question or, as the case may be, by the relevant charter or custom;
"charges" means any charges with the exception of light dues, local light dues and any other charges in respect of lighthouses, buoys or beacons and of charges in respect of pilotage.
(3) The High Court shall not entertain any action in personam to enforce a claim to which this section applies until any proceedings previously brought by the plaintiff in any court outside England and Wales against the same defendant in respect of the same incident or series of incidents have been discontinued or otherwise come to an end.
(4) Subsections (2) and (3) shall apply to counterclaims (except counterclaims in proceedings arising out of the same incident or series of incidents) as they apply to actions, the references to the plaintiff and the defendant being for this purpose read as references to the plaintiff on the counterclaim and the defendant to the counterclaim respectively.
(5) Subsections (2) and (3) shall not apply to any action or counterclaim if the defendant thereto submits or has agreed to submit to the jurisdiction of the court.
(6) Subject to the provisions of subsection (3), the High Court shall have jurisdiction to entertain an action in personam to enforce a claim to which this section applies whenever any of the conditions specified in subsection (2)(a) to (c) is satisfied, and the rules of court relating to the service of process outside the jurisdiction shall make such provision as may appear to the rule-making authority to be appropriate having regard to the provisions of this subsection.
(7) Nothing in this section shall prevent an action which is brought in accordance with the provisions in the High Court being transferred, in accordance with the enactments in that behalf, to some other court.
(8) For the avoidance of doubt it is hereby declared that this section applies in relation to the jurisdiction of the High Court not being Admiralty jurisdiction, as well as in relation to its Admiralty jurisdiction.
High Court not to have jurisdiction in cases within Rhine Convention
23. The High Court shall not have jurisdiction to determine any claim or question certified by the Secretary of State to be a claim or question which, under the Rhine Navigation Convention, falls to be determined in accordance with the provisions of that Convention; and any proceedings to enforce such a claim which are commenced in the High Court shall be set aside.