Procedures for Enforcement

Abstract

Ships create liabilities in various jurisdictions, or on the high seas, under different legal regimes. The holders of maritime claims acquiring rights under one or more of the shipping liability regimes or under a contract of carriage of goods by ship, a charterparty or mortgage, have to consider, before deciding where to start the claim, whether, if the claim is successful and they obtain a judgment or arbitration award in their favour, the defendant shipowner would be good for damages. Arrest of ships provide the international solution to this problem. The ability to obtain security for the maritime claim is thus a crucial legal framework underpinning the international shipping arrangements because it gives confidence to claimants that, by arresting the ship, they acquire rights over the property of the defendant and then can, by asking the court to sell the ship, where the shipowner does not provide security, get satisfaction for their claim. In England the arrest of ships is dependent upon the existence of an action in rem against the ship or property. The action in rem, in turn, is convoluted with historical conflicts between the admiralty and the common law courts over a number of centuries and the notion of maritime lien, a right that arises only for some claims and only against the ship involved with the claim and which not only has priority over mortgages and other commercial claims arising from charterparties and bills of lading but also survives the sale of the ship by its owner. This chapter explains the complex interaction between the international system of arrest under the 1952 Arrest Convention and the Admiralty Jurisdiction of the English High Court, the way in which the two available enforcement procedures, the action in rem and the action in personam, relate and details the procedural steps of arrest and the limited defences available to the shipowner. Because arrest is not always available, freezing injunctions are also described as an alternative way of restricting the dissipation of the defendant’s assets.