Abstract
Ship arrest is an in rem action on ships that exercised with purpose of obtaining security for maritime claims. The arrest is intended to prevent a ship from moving pending settlement of the claim and consequently will also prevent her owners from enjoying any profits. In present shipping industry, which became more borderless, dispute involving different nationals and jurisdictions might arise. In such case, existence of clear and certain rules are one of the keys to resolve them. In respect of that, ship arrest has been introduced in Indonesia through the Law number 17 Year 2008 “Shipping Law”. Since the enactment of Shipping Law, ship arrest is possible to carried out within the Indonesian jurisdiction. However, the practice of ship arrest in Indonesia is relatively new comparing to other countries such as Netherlands and Singapore, which have implemented it long before Indonesia. Another question is whether it is necessary for Indonesia to be a party in international treaties on arrest of ships. Learned from examples outside Indonesia, we may able to see issues concerning ship arrest in Indonesia; existence of the implementing rules, compatibility with the current civil procedural rules, readiness of the courts to implement it, etc. Responding to the development of shipping industry, Indonesia must assured to moving onward by showing its readiness in following international practice on shipping law. This readiness is also an indicator of seriousness in manifesting the idea of making Indonesia as an axis of world maritime.
Highlights
Security for claim is one of crucial aspects in a dispute
Ship arrest is relatively new in Indonesia, the Law number 17 of 2008 on Shipping (“Shipping Law”) is the first Indonesian legislation that formally introduces the practice of ship arrest
The elucidation of Article 223 (1) (u) of the Shipping Law provides that ship arrest may be exercised on the basis of maritime claim concerning the costs of mortgage or hypothèque or other encumbrances having the same nature on ship which substantially similar to Article 1 (1) (u) of the 1999 Ship Arrest Convention
Summary
Security for claim is one of crucial aspects in a dispute. It is important for the claimant to assure that his/her claim would not be ended in vain. Similar definition of arrest is provided under the 1999 International Convention on Arrest of Ships (“1999 Ship Arrest Convention”) which defines “arrest” as “...any detention or restriction on removal of a ship by order of a Court to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument”. If object of the attachment is a movable property, the owner may even still keep such property under his possession until the claim prevails and the court orders the hand over of the property to the plaintiff9 Another difference is in the grounds for their application. Ship arrest operates on the grounds of maritime claims which shall be granted if the claimant is able to prove his claim is valid while pre-judgment attachment may be granted by the court if there is proof of meritorious allegation that the defendant deceptively attempts to dispose of conceal his property
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