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8/4/2019 Tetley's Arrest Attachment-Related Maritime Law Procedure
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Arrest, Attaclunent, and Related Maritime
Law Procedures
William Tetley, Q.C:
1895
This Artic le traces the Admiralty action in rem back to its civil ian roots in medieval
Europe and shows how the action in England gradually diverged from the Continental model,
beginning in the sixteenth century. The action in rem and the arrest of ships in the
contemporary law of the United Kingdom, the United States, and Canada are outlined and
compared to the civilian saisie conservatoire and its counterpart, the u . s . maritime attachment.
Two re la ti ve ly new procedure s employed in modem mari time law in the U.K. and Bri ti sh
Commonwealth countries+the Mareva i njunct ion and the Anton Piller order-s-are also
discussed. 1 7 l C author concludes with some incisive comments on salient points in the Arrest of
Ships Convention J 999 and the urgent need for greater international uniformity in this vitally
important area of maritime law.
I. INTRODUCTION 1898
II. THE PURPOSEAND PLAN OF THISARTICLE 1899
III. TH E HISTORY OFARRE ST I NR EM ANDTHE ADMIRALTY
ATTACHMENT-ENGLAND 1900
A. Roman Law and theAdmiralty Action In Rem 1900
B. The Processus Con tra Contumacem 1900
C . Characteristics of theAdmiralty Process to Compel
Appearance in Tudor/Stuart England 1902
D. Gradual Emergence of Contemporary Admiralty
Procedures-England 1903
E. Did the Admiralty Attachment Expire in the
Eighteenth Century? 1905
Iv. ARRE ST I NR EM -UN IT ED K INGDOM , CANADA , AND
UNITED STATES 1905
A. UnitedK ingdom 1905
1. A rrest In R em -th e C ha ra cte ris tic A dm ir alty
Proceeding 1905
2. In Rem Process in a Nutshe1l... 1907
3. C losed L ist o f Maritim e C laim s 1908
4. Arrest to E nforce M aritim e L iens 1909
5 . A rrest to Enforce Statutory Rights In Rem 1910
* Profe ssor of Law, McGil l Univer si ty , Dist ingu ished Visi ting Profe ssor of
Mar it ime and Commercial Law, Tulane Univers ity School of Law, and counsel to Langlois,
Gaudreau, O'Connor of Montreal. The author is indebted to Robert C. Wilkins, B.A.,
B.c.L., for his assistance in the preparation and correction of the text.
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1896 TULANE LA W REVIEW [Vol. 73:1895 MARITIME LA W PROCEDURES999]
6. Sister Ship Arrest 1911
7. Beneficial Ownership 1912
8. Demise Charterers May Bind the Ship In Rem 1912
9. Issue of the Writ Gives Rise to Statutory
Rights In Rem in the United Kingdom 1913
10. Release from Arrest 1914
11. Wrongful Arrest...................................................... 1915
12. Arrest and the Protection of Property Rights 1915
13. Conclusion-Arrest-United Kingdom 1916
B. Canada 1917
1. Introduction-"Canadian Maritime Law" 1917
2. Canadian Maritime Jurisdiction 1918
3. Open List of Maritime Claims 1919
4. The Action In Rem-Canada 1920
5. Arrest for Maritime Liens, Statutory Rights In
Rem, and Quasi-Maritime Liens 1920
6. Canadian In Rem Process 1922
7. The Statutory Right In Rem Arises inCanadawith Arrest of the Ship 1923
8. Beneficial Ownership 1923
9. The Demise Charterer Does Not Bind the Ship
In Rem in Canada 1924
10. Sister Ship Arrest 1924
11. Release of the Ship 1925
12. Wrongful Arrest. '" 1926
13. Arrest and the Protection of Property Rights 1926
14. Conclusion-Arrest In Rem-Canada 1928
C. The United States 1928
1. Introduction 1928
2. U.S. Maritime Liens and Lien Law 1929
3. Binding the Ship for U.S. Maritime Liens 1932
4. Enforcement In Rem 1932
5. Arrest InRem Under Supplemental Rule C ~ 1933
6 . Maritime Attachment Under Supplemental
RuleB 1934
7. Release of the Ship 1937
8. Wrongful Arrest or Attachment 1938
9. Const itut ional Safeguards of Shipowners'
Property Rights 1938
10. Conclusion-Attachment and Arrest-
America 1939
V. THESAISIECONSERVATOIRE-FRANCE 1940
A. Introduction 1940
B. Attachment of Ships and Other Assets 1940
C. Attachment of Ships- Two Regimes 1941
D. Claims Permitting Maritime Attachment 1942
E. Attachment of Ships and Sister Ships 1943
F . Attachment Procedure and Jurisdiction 1944G. Release from Attachment and Voyage Authorization 1946
H. Wrongful Attachment 1947
I Protection of Private Property Rights of Shipowners 1947
J. Conclusion-France 1947
VI. THE MAREVA INJUNCTION 1948
A. Introduction 1948
B. Conditions for the Issuance of a Mareva Injunction 1949
C. "Worldwide" Mareva Injunctions 1950
D. MarevaInjunction Procedures-United Kingdom 1951
E. MarevaInjunctions-Canada 1953
F . The Mareva Injunction, the Action IIIRem, and the
Attachment 1955
G. Conclusion-MarevaInjunction 1957
V ll. THE ANTON PILLER ORDER 1958
A. Introduction 1958
B. The Anton Piller Order-United Kingdom 1958
C. Anton Piller Orders-United Kingdom Procedural
Safeguards 1959
D. Anton Piller Orders-Canada 1960
E. Conclusion-Anton Piller Orders 1961
VIIl. THE ARREST OF SHIPS CONVENTION 1999 1962
A. Introduction '" '" 1962
B. General Observations on the Arrest Convention
1999 1963
1. The Definition of"Arrest" 1963
2. A "Closed" List of "Maritime Claims" 1965
3. Some Specific Maritime Claims 1966
4. Arrest of Ships About to Set Sailor Sailing 1967
5. Arrest for Maritime Liens and Statutory Rights
InRem 1967
6. Sister Ship Arrest 1969
7. Limitation on Security for Release '" '" 1970
8. Countersecurity and Wrongful Arrest... 1970
9. Application of the Convention 1971
10. Convention Does Not Create Maritime Liens 1972
11. International Uniformity Is Essential... 1972
1897
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1898 TULANE LA W REVIEW [Vol. 73:1895 1999] MARITIME LA W PROCEDURES 1899
IX. THE CHALLENGES 1972
X. CONCLUSION , 1973
APPENDIX. INTERNATIONAL CONVENTION OF THE .ARREST OF
SHIPS, 1999 1976
The United States, in a sense, has the best of both worlds,
because U.S. marit ime law affords the creditor both the arrest in rem'
and the maritime attachment.'
England (supposedly) lost the Admiralty attachment in the
eighteenth century, resulting in a serious weakness in its maritime
process compared to that avai lable in civilian countries.' This lacunahas only partially been fil led since 1975 by the Mareva injunction." In
that same year, the Anton Piller order was developed, as a tool for
preserving evidence.' Both procedures are applied today in maritime
and nonmaritime cases alike, not only in England, but throughout the
British Commonwealth.
On the international plane, more than seventy nations are party to
the Arrest Convention 1952.8 The Convention provides a legal regime
covering all aspects of arrest and attachment of seagoing ships before
judgment, but has undergone a major review and has been replaced as
of March 12, 1999 by a new convention (see Appendix).
In consequence, now would seem to be a propitious moment to
take a fresh look at the various procedures of pre-judgment security inthe maritime law of common-law and civilian jurisdictions, as well as
at the proposed new international convention on the arrest of ships.
I. INTRODUCTION
Essential to the practice of maritime law in any country is a
knowledge of the procedures that provide pre-judgment security for
claims, as well as post-judgment execution if a suit is allowed. Pre-
judgment security is of the highest importance to the marit ime creditor,
who always faces the threat of being unable to recover his debt from'
an impecunious or unscrupulous debtor, if the debtor 's ship--the main
asset on which so many maritime creditors depend in extending
credit-should sail away without the debt having been paid. Similarly,
the possibili ty of post- judgment execution, by way of the judicial sale
of the arrested ship, is a key consideration for maritime creditors
concerned about the solvency of their debtors.In common-law countries whose maritime law is primarily
derived from the admiralty law of England, the action in rem is the
bosic procedure on which creditors rely for pre-judgment security and
post-judgment enforcement. The arrest of the ship or other res (for
example, cargo or freight) in the action in rem places the res under
judicial detention pending adjudication of the claim. It usually also
secures the appearance in the action of the defendant shipowner and it
establishes the jurisdiction of the court. If the court subsequently
allows the claim, the judgment is then enforceable against the arrested
res (by judicial sale) or the security given to take its place.
In civil law jurisdictions, where no action in rem exists, the action
in personam may be combined with a "saisie conservatoire," orconservatory attachment. I The saisie permits any property of the
debtor (including ships) to be seized and detained under judicial
authority pending judgment.' The subsequent judgment, if favourable
to the plaintiff, may then be enforced against the attached property or
the security replacing it.
II. THE PURPOSE AND PLAN OF THIS ARTICLE
This Article will first review the historical background of the
action in rem and the Admiralty attachment in England. It will
challenge again, but briefly, the prevalent view that the English
Admiralty attachment is extinct. The main characteristics of the action
in rem in the United Kingdom, Canada, and the United States wil l then
3. Specific rules on arrest in rem in the United States are established by
Supplementa l Rule C ofthe Supplementa l Rules for Certa in Admiral ty and Marit ime Cla ims,
FED,R. ClV.p, [hereinafter Supp. Rules].
4, Specific rules on maritime attachment in the United States ar e es tablished by
Supplemental Rule B of the Supp. Rules, supra note 3. The attachment also exists
independent of those rules, by vir tue of the general marit ime law of the United Sta tes. See
Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi SA de Navegacion, 773 F.2d
1528, 1531-33, 1986 AMC I,4-9 (IIth Cir, 1985),
5. SeeTETLEY,M.LC.,supranote l,at937,973-77, 1029-30, 1032-33.
6. See Mareva Compani a Navi era S ,A. v . Int ernat ional Bulkc ar ri er s, [1975 ] 2
Lloyd's Rep. 509 (C.A,),
7, See Anton Piller KG v. Manufacturing Processes Ltd., 1976 ch. 55 (GA.).
8. See Interna tional Convent ion for the Unifica tion of Certa in Rules Relat ing to the
Arrest of Seagoing Ships, adopted a tBrusse ls, May 10, 1952, and in force as of February 24 ,1956 [he reinaf ter A rres t Conven ti on 1952] . See generally FRANCESCOBERLINGIERI,
BERLINGlERIONARRESTOFSHIPS: A COMMENTARYNTHE 1952 ARRESTCONVENTION2d
ed. 1996) [hereinafter cited as BERLINGIERl,ARRESTOFSHIPS]; TETLEY,M.LC., supra note
I, at 1439-45 (reproducing Arrest Convention 1952).
I. See WILLIAMTETLEY,MARITIMELIENS AND CLAIMS974-75 (2d ed. 1998)
[hereinafter TETLEY,M.L.C.].
2. See id. at 1030,
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1900 TULANE LAW REVIEW MARITIME LAW PROCEDURESVol. 73:1895 1999]
be reviewed, with emphasis on the role of arrest in the process. U.S.
maritime attachment will «lso be outlined. The Article will then
examine the civilian sa isie c o n ser va to ire , as practiced in France, after
which the Mareva injunction ofthe United Kingdom and other British
Commonwealth states such as Canada will be studied, as well as the
Anton Piller order. Finally, the Article will treat briefly the attempts atinternational unification of law in respect of the arrest of ships, 1999,
adopted March 12, 1999 in Geneva," at a diplomatic conference
convened by the International Maritime Organization (IMO) and the
United Nations Conference on Trade andDevelopment (UNCTAD).lO
today, from a process of arrest of property to compel appearance of the
defendant, a procedure developed in medieval Europe and firmly
established in England by the fifteenth century. This processus contra
contumacem, in use on the Continent by the fourteenth century, was
described by an anonymous Italian civilian author, an extract from
whose description was transcribed into the Blacke Booke of theA dmiralty'" under the title Ordo Judiciorum" In England, the
procedure was well established in the Admiralty Court by the sixteenth
century and it appears to have been somewhat different from the
Continental model. It is described in the account of the Court's
process written by Francis Clerke, a proctor in the Court during thereign of Queen Elizabeth 1.16
The primary purpose of the process was to counteract the
defendant's contumacious refusal to appear before the court and
contest the suit brought against him. In England, the person and/or the
property of the defendant in the jurisdiction of the Admiral could be
arrested by the Admiralty Marshal or other officer at the same time as
the defendant (or anyone else having an interest in the property) wascited to appear," In a second stage, the defendantreceived a series ofcitations to appear, and after four defaults by him, the plaintiff would
formulate his claim in the form of a draft sentence or article upon first
decree. 18 The Admiralty Court, in the "first decree" (prim urn
decretum), could then award possession of the property arrested to theplaintiff on grounds of the defendant's contumacy."
Ill, THE HISTORY OF ARREST IN REM AND THE ADMIRALTY
ATTACHMENT--ENGLAND
A. Roman Law and the Admiralty Action In Rem
Since at least the early nineteenth century, the ongm of the
English Admiralty action in rem has been traced to the actio in rem of
Roman law. Arthur I .rowne, in his monumental work, ACompendious View of the Civil Law and of the Law of the Admiralty,
wrote: 'This remedy in rem against the ship or goods is founded on
the practice of the civil law,which gives an actio in rem, to recover orobtain the thing itself, the actual specific possession of it. ... "11
More recent legal historians, however, have questioned the
Roman pedigree of the action in rem. They point out that by the
sixteenth century, English Admiralty Courtjudges were hearing in rem
claims of a purely personal nature, having none of the proprietary
character required by the Roman actio in rem." Moreover, they can
find no indication in the case law of the latemedieval or early modem
period that anything resembling a maritime lien or a ship hypothec
was necessary to found the Admiralty in rem action against ships."
14. See I BLAC~ BOOKEOFTHEADMIRALTYLondon, Sir Travers Twiss ed., 1871-
76).
15. See id. a t 178-220. The t it le Ordo Judiciorum was given to the extract by Twiss.
16. See FRANCISCLERKE,PRAXISSUPREMtECURIAlADMIRALITATIS1-69 (1829).
17. In the Ordo Judiciorum, there could be no question of contumacy until the
defendant h ad rece iv ed the c it at ion. In Engl and, by the t ime o f Hen ry VII I, however , t he
ar re st o f t he defendan t' s p roper ty was done cont emporaneous ly w ith the ci ta ti on o f t he
defendant , as a kind of "pre-emptive str ike." This was justi fied (by Bracton , for example) on
the g round that th e fai lu re t o respond to the ci ta ti on was an immediat e contumacy . The
pract ical reason, however, was the ease and speed with which the defendant 's main asset , the
ship, could leave thejurisdiction. See HALE& FLEETWOOD,upra note 12, at xli-xlii.
18. See id. at xliii.
19. See CLERKE,supra note 16, at 61-69,81-86; see also HALE& FLEETWOOD,upra
note 12, a t x li . In the origina l Continental procedure , a second decree (secundum decretum)
was needed in an actio inpersonam, in order to transfer ownership of the arrested property to
the p laint if f a ft er a pe ri od o f t ime. In Engl and , howeve r, t he second decree seems to have
p layed l it tl e p ar t i n Admi ra lt y p rac ti ce and even tu al ly c ea sed to appear i n the ca se l aw ,
because the distinction between the actio in rem (or actio realis) and the actio in personam
(or actio personalis) was not of great s ignificance. Another dis tinction was that the
Continental procedure granted possession of the res sought in an act io in rem, but only
custody ofthe property up to the amount ofthe indebtedness inan actio inpersonam.
B. The Processus Contra Contumacem
Rather than being derived from Roman law,English Admiralty in
rem actions are derived, in the opinion of at least some legal historians
9. See U.N. Doc . No. AlO )NF.188/6 (Mar. 12, 1999).
10. See Draf t Ar ti cl es for a Conven ti on on Ar res t o f Sh ip s, UNCTAD/ IMO Joint
Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects,
U.N. Doc. No. JIGE(IX)5, TO/BilGE. 1/5, LEGIMLMl42 (Apr. 14, 1997).
I J. ARTHURBROWNE,2 A COMPENDIOUSVIEWOFTHECIVILLAWAND OFTHELAW
OFTHEADMIRALTY9 (1840) [hereinafter BROWNE,CIVILLAW].
12. See HALE& FLEETWOODONADMIRALTYURISDICTIONt xxxix-xl (M.J. Prichard
& D.E.C. Yale eds., 1992).
13. See id.
1901
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1902 TULANE LA W REVIEW [Vol. 73:1895 1999] MARITIME LA W PROCEDURES 1903
C. Characteristics of theAdmiralty Process to Compel Appearance
in Tudor/Stuart England
The English Admiralty process by citation, defaults and first
decree, unlike the Continental processus contra contumacem, made
little distinction between the actio inrem (or actio realis) and the actio
in personam (or actio personalist." Its chief characteristics were asfollows:
(1) Arrest of the person of the defendant was the primary mode
in which the process was exercised, with arrest of his property being a
subsidiary mode, although the modes were altemative and could also
be combined."
(2) Any property of the defendant in the jurisdiction (not only
his ship, but also his goods) could be arrested." In fact, arrest appears
to have extended to goods of the defendant in the possession of a third
party, as well as to goods of a party indebted to the defendant and even
to incorporeal rights." Sister ships could also be arrested."
(3) The possibili ty of arresting any goods of the defendant in
the jurisdiction was a particularly useful (and often the only effective)remedy to secure the plaintiff's claim where the defendant himself was
out of the jurisdiction (as frequently happened in the case of claims
against the seafaring foreign merchants of those times ) _ 2 5 This aspect
of the procedure has been seen in retrospect as the origin of the
"Admiralty attachment" (as it later came to be called in the eighteenth
or nineteenth centuries), a pre-judgment security process that could be
added to the action in personam." The civilian judges of the High
Court of Admiralty in the 1500s and 1600s did not distinguish clearly
between actions in rem and in personam, however, there being for
them but a single procedure, or ordo, although one that had two
variants: arrest ofthe person and arrest of his property.(4) The arrest did not depend for its validity on the existence of
any sort of lien against, or hypothecation of, the ship or goods. The
procedure was valid as long as the ship or goods belonged to the
defendant andwere within the Court's jurisdiction."
(5) The claimant, in his draft sentence on first decree, was
required to identify the arrested property."
(6) Execution on the property arrested was limited to the value
of that property, even if that value was insufficient to cover the full
amount of the successful plaintiff's claim."
20. See HALE& FLEETWOOD, upra note 12, at x li i-x li ii . The Admiral ty Court in
Tudor and Stuart days was aware of the Roman (in other words, civil) law distinction
between ac tions in rem and in personam, aswel l as of the Roman actio hypothecaria, but
these d ist inct ions d id not cont rol the originat ing form of procedure , which cou ld take the
form of an action against the person, an action against his property or both. See id. at cxxx,
cxxxiii-cxxxiv.
21. See id. at cxxxiii.22. See ISELECTPLEASINTHECOURTOF ADMIRALTYat lxxi-lxxii (Reginald G.
Marsden ed. , 1982) (U [A[rrest of goods was quite as frequent as arrest of the ship; and it
seems to have been immaterial what the goods were, so long as they were goods of the
defendant and were within the admiral's jurisdiction atthe time of arrest. ").
23. See HALE& FLEETWOOD,upra note 12, at cxxxi n.7 (citing CLERKE,supra note
16, at 75-76).
24. See Thometon v. The Elizabeth Bonaventure & Jobson, owner (1565), reported
in 2 SELECTPLEAS,supra note 22, at 131.
25. See CLERKE,supra note 16, at 61-69. Clerke suggests that, if the defendant was
out of the kingdom or had absconded, h is goods or sh ip could be arr es ted in whomever' s
hands they were . The debtor' s absence was probably not intended as a condi tion of such
arres t, however , but was probably mentioned to stress the utility and (at times) the necessity
of arres ting property in cases of such physical absence f rom the jur isdiction. Warrants of
a rre st from the per iod show clear ly that sh ip and goods could be a rre sted even where the
defendant was available personally .. See 2 SELECTPLEAS,supra note 22, at 9 -11, 79-80, 83-
84,88-89,124-125, 197-198; see also HALE& FLEETWOOD,upra note 12, at cxxxiii-cxxxiv.
D. Gradual Emergence of Contemporary Admiralty Procedures-
EnglandAfter the Restoration in 1660, a number of interrelated factors
continued to shape English Admiralty process, slowly giving it a form
and content more closely resembling its characteristics today:
(1) The need, under the Admiralty procedure of the
Tudor/Stuart period, to identify the arrested res, and the fact that
enforcement was limited to its value; contributed to the concept that
the ship itself, as opposed to its owner, and was liable for certain
claims, such as seamen's wages and salvage. Arrest of the
"wrongdoing" res qame to be seen as the exclusive mode in which
Admiralty process was exercisable in respect of such claims." The
late seventeenth and eighteenth centuries consequently saw the
26. See, e.g., TETLEY,M.L.e. supra note I,at 974, 1030; F.L. WISWALL,JR., THE
DEVELOPMENTFADMIRALTYURISDICTIONNDPRACTICESINCE1800, at 165 (1970).
27. See 1 SELECTPLEAS,supra note 22, at lxxi-lxxii; see also HALE& FLEETWOOD,
supra note 12, at xlvi.
28. By contras t, the Continental procedure descr ibed inthe Ordo Judiciorum required
the a rres ted property to be desc ribed on ly in the case of an actio in rem (or actio realis), in
which the plaintiff was claiming that he owned the arrested property. Itwas not necessary to
identify the property in an actio in personam (or actio personalis), where the plaintiff sought
merely to recover a debt owed him by the defendant. See HALE& FLEETWOOD, upra note
12, at xlii-xliii.
29. See id. at x li , x li ii . On the Continent, by comparison, the sentence on first decree
in an actio personalis (to recove r a debt ) put the p la in ti ff in pos sess ion up to the amount of
indebtedness, first of the defendant's movable property, if it sufficed to satisfy the claim, and,
ifnot, then of his immovable property as well, with insolvency as a final recourse.
30. See id. at xlvi.
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1904 TULANE LA W REVIEW
thus wrote that "at present the Admiralty acts only in reml'" The
withering away of the Admiralty action in personam necessarily
caused the slow decline, and eventually the virtual disappearance in
England, of the Admiralty attachment as we11.3?
The in personam jurisdiction of the Admiralty Court experienced
a brief renaissance in the nineteenth century, thanks to the AdmiraltyCourt Acts of 184038 and 1861,39prior to and just after the dissolution
of Doctors' Commons in 1858.40 The Admiralty attachment remained
unused in England, however, resulting in the view that i thad ceased to
exist as a legal procedure. Fortunately, i t survived in the United States,
where the American Revolution (1775-1783) predated the alleged
demise of the attachment in England and where it continues to
flourish.
[Vol. 73:1895 1999] MARITIME LA WPROCEDURES
beginnings of a sharp distinction between the action in rem and the
action in personam as we now know them.
(2) The common-law courts, which had been locked in combat
with the High Court of Admiralty for centuries," seized upon the idea
that Admiralty jurisdiction was limited, not only to geographical areas
within the ebb and flow of the tide, but also to causes of actioninvolving the liabili ty of the vessel, as opposed to the personal liabili ty
of the owner," The Court of King's Bench lost no time in issuing
writs of prohibition to impose this new subject-matter restriction on
the civilian Admiralty judges sitting at Doctors' Commons."
(3) The increased use of writs of prohibition against the
Admiral ty Court resulted in a significant decline in the in personam
practice of the Court, especially after the Glorious Revolution of
1689.34 Mercantile lit igants began to insti tute their personal actions in
the common-law courts, where they were sure that their sui ts would at
least come to trial, leaving the Admiralty judges wi th pract ically no
jurisdiction other than the action in rem." In 1802, Arthur Browne
E. Did the Admiralty Attachment Expire in the Eighteenth Century?
Despite the general opinion," there is a strong argument
supporting the view that the Admiralty attachment did not become
extinct in England at the end of the eighteenth century. Fry's speech inThe Heinrich Bjorn" suggests that the procedure continued to exist
after 1800, and his contention to that effect has never been clearly
addressed in subsequent English decisions."3I . The confl ic t between Admira lty and common-law court s may be t raced a t l ea st as
far back as 1296. Formal res tr ictions on Admiralty jur isdiction to matters arising at sea and
in t idal wa te rs were imposed by the Admiral ty Juri sd ic tion Acts, 1389, 13 Rich . 2 , ch. 5
(Eng.); 1391, 15Rich. 2, ch . 3 (Eng. ); 14002 Hen. 4, ch . 11 (Eng.). See generally I SELECT
PLEAS, supra note 22, at xi; TETLEY,M.L.C., supra note I , at 32-33; WISWALL,supra note
26, at4-5.
32. See HALE& FLEETWOOD,upra note 12, atxlvii, lxxiii.
33. See, e.g., Johnson v. Shippen, 92 Eng. Rep. 154, 154-55 (K.8. 1703)
(hypothecating par t of the ship for necessaries supplied in Boston, Massachusetts). S ir John
Holt, Chief Justice of King's Bench, issued prohibition to block the suit against the
shipowners personally, while permitt ing it to procee. l against the vessel. See id. ; see a lso
Clay v . Snelgrave,91 Eng . Rep . 1285 (K.8. 1700); HALE& FLEETWOOD,upra note 12, at
xlvii n.3, lxiii-lxiv.
34 . The number of inpe rsonam ac tions heard in the Admiral ty Court d ropped fr om
27 out of a total of 162 in 1683 to only 7 out of 61 in 1725. See HALE& FLEETWOOD,upra
note 12, atcxxxv n.1 (citing statist ics f rom the warrant books of the High Court of Admiralty
showing the breakdown between the numbers of in rem and in personam suits heard in 1683,
1685,1695,1705,1715, and 1725).
35 . The wri t in r em was the procedure by which the Admiral ty Court sur vived during
the oppression by the court s of common law. See Edward F. Ryan, Admiralty Jurisdiction
and the Maritime Lien: An Historical Perspective, 7 W. ONT.L. REv. 173 (1968); see also
The Indian Grace (No.2), [1998] I Lloyd's Rep. 1,6 (H.L. 1997) ("Admiralty practit ioners
and Judges used the concept that the sh ip i s a defendant in an act ion in rem, as a means of
defending and extending the jur isdiction of the High Court of Admiralty.") . Another factor
cont ribu ting to the abandonment of the Admira lty Court by Engl ish merchan ts may have
been that the common- law courts, par ticularly in such areas asbills of exchange, began after
1689 to be able to offer commercial l it igants a better service than could the Admiralty Court .
See DANIELR. COQIJILLETTE, HE CIVILIANWRITERSOFDOCTORS'COMMONS,LONDON:
THREE CENTURIES OF JURISTIC INNOVATIONIN COMPARATIVECOMMERCIAL AND
INTERNATIONALAW(1988), cited in HALE& FLEETWOOD,upra note 12, at cxxviii.
IV. ARREST INREM-UNITED KINGDOM, CANADA, AND UNITED
STATES
A. UnitedK ingdom
1. Arrest InRem-the Characteristic Admiralty Proceedingf
In the United Kingdom, the action in rem is the characteristic
Admiralty proceeding to enforce all types of maritime claims. It
36. Browne, Civil Law, supra note II, at 72, IDO;see a/so The Clara, 166 Eng. Rep.
986,986-87 (1855) (stating that the las t action in personam occurred in the 1780s); HALE&
FLEETWOOD,upra note 12,at cxxxiv-cxxxv n.5; TETLEY,M.L.C., supra note I , at 1029-30.
37. See TETLEY,M.L.C., supra note I , at937, 973-75.
38. The Admira lty Court Ac t, 1840,3 & 4 Viet., ch. 65 (Eng.).
39. The Admira lty Court Ac t, 1861,24 &25 Viet., ch. 10(Eng.).
40. On the h istory of Doctors ' Commons and i ts even tua l di sso lu tion , s ee WISWALL,
supra note 26, at 73-95; s ee a lso GD. SQUIBB,DOCTORS' COMMONS: A HISTORYOFTHE
COLLEGEOFADVOCATESANDDOCTORSOFLAW(1977).
41. See, e.g., TETLEY,M.L.C., supra note I , at 1029, 1032-33; Browne, Civil Law,
supra note II, a t435 .
42. 10P .D. 44, 53-54 (C.A. 1885).
43. See TETLEY,M.L.C., supra note I , a t 935-37, 1032-33 (s tat ing tha t nei ther the
House of Lords in The Henrich Bjorn, II App. Cas. 270 (H.L. 1886), nor the Court of
Appeal in The Beldis, 1936 P 51, 69-70 (C.A.), clearly contradicted Fry L.J.'s holding).
1905
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1906 TULANE LAW REVIEW [Vol. 73:1895 1999] MARITIME LAW PROCEDURES
tends to be regarded primarily as a procedural device to secure the
defendant's personal appearance in the suit, rather than as an action
against the "wrongdoing ship" seen as a person." It differs from an
action in personam, in that the ship (and, in some cases, the cargo,
bunkers and freight, or the proceeds of the judicial sale)" is the
defendant, together with the shipowner," The availability of the
action in rem to enforce marit ime liens, statutory rights in rem, and
other maritime claims in England is governed by the Supreme Court
Act, 1981,47at sections 21(2)-(4), providing for the exercise in rem of
the Admiralty jurisdiction of the Queen's Bench Division ofthe High
Court of Justice against the ship or property concerned by the claim,
or, in some cases, against a sister ship." The action in rem provides
pre-judgment security for the claim, founds the jurisdiction of the
court, and usually secures the appearance of the shipowner," It
typically is enforced by the arrest of the res.
Arrest in rem is not permitted, however, in respect of Crown
ships" or a ship belonging to a foreign State, unless it was in use or
intended for use for commercial purposes when the cause of action
arose." Ingeneral, however, the flag, registry, ship ownership, or the
place where the claim arose do not restrict Admiralty jurisdiction. 52
2. In Rem Process in a Nutshell
The procedures regulating both the action in rem and the arrest
are provided for principally in Order 75 of the Rules of the Supreme
COurt.53 In brief, the action begins with the issuance of the writ in
rem by the Admiralty and Commercial Registry in London or one of
the District Registries elsewhere in the United Kingdom." The arrest
warrant, obtained on motion to the High Court supported by the
"affidavit to lead warrant" of the claimant, is valid for twelve
months. 55 Itis ordinarily served with the writ in rem," and may onlybe served where the ship or other res is within the jurisdiction."
When the action is served or where service is deemed to have
occurred by virtue of the shipowner's acknowledgment of the issue
of the writ before service (the modem equivalent of the appearance
in the action by the defendant), the proceeding continues as a joint
action in rem and in personam, so that the eventual judgment is
enforceable against both the arrested res and the debtor's other
44. See D.e. JACKSON,ENFORCEMENTOFMARITIMECLAIMS379-80 (2d ed. 1996)
[hereinafter JACKSON,ENFORCEMENT];. HILL, MARITIMELAW 114 (4th ed. 1995). The
"personif ication theory" of the action in rem ismore popular in the United States than in the
United Kingdom. See JACKSON,ENFORCEMENT,upra, at 380; see also The Indian Grace
(No.2), [1998] 1 Lloyd's Rep. I, 6-7 (H.L. 1998) (attributing the decline in the
personification theory and the predominance of the "procedural theory" of the action in remin England after the Judicature Acts of 1873-1875 to four factors : (1) the availabil ity of the
ac tion in rem to enforce claims o the r than mari time l ien c laims; (2 ) the f orm of the wri t in
rem, which changed in 1883 so as to provide for the naming of the de fendant shipowner;
(3 ) the deci sion in The Dictator, 1892 P. 304, which held that the appearance of the
sh ipowner in the ac tion in r em caused the act ion to proceed as a joint act ion in r em and in
personam; and (4) the hosti li ty of common- law judges to the concept of the ship as a person
and thus to the personification theory, which had prevailed among the civil ian judges of the
former High Court of Admiralty); TETLEY,M.L.e. supra note 1,at 53, 1030, 1036.
45. See HILL, supra note 44, at 113-14; NIGELMEESON,ADMIRALTYURISDICTION
ANDPRACTICE69 (1993).
46. Older decis ions held that the ship, rather than the shipowner , is the true defendant
in an act ion in r em. See, e.g., The Johannis Vatis , 1922 P.213, 219-20; The Bums, 1907 P.
137, 149 ( e.A. ); The Longford , 14 P.O. 34 (e .A. 1889) ; HILL, supra note 44, a t 125-26;
MEESON,supra note 45, a t 64-66. In 1997, however , the House of Lords he ld tha t, a t l eas t
for the purposes ofsection 34 of the Civil Jur isdiction and Judgments Act, 1982, ch. 27, § 34
(Eng.) (prohibiting suit again in England or Wales after ajudgment has already been renderedby an overseas court on the same cause of action in a suit between the "same parties"), a
sh ipowner i s the t rue defendan t in an act ion in r em f rom the t ime the Admira lty Court i s
seized with jur isdiction (specif ically, f rom the time the writ in rem is served or is deemed to
be served as a result of the shipowner 's acknowledgment of issue of the writ before service).
See The Indian Grace (No.2), [1998]1 Lloyd's Rep. I , 10(H.L.) ; see also Nigel Teare, The
Admiralty action in rem and the House o f Lords, [1998] LLOYD'SMAR.& COM.L.Q. 33,
The decis ion is arguably consistent, however , with the traditional view that the action in rem
proceeds as a combined ac tion in r em and ac tion inpersonam from the t ime the def endan t
shipowner f iles an appearance. Lord Steyn noted that acknowledgment of issue of the writ is
the "modem phraseology" for appearance by the defendant. See Indian Grace, [ 1998] I
Lloyd's Rep. at7.
47. See The Supreme Court Act, 1981, ch. 54, § 21(2) -(4) (Eng.); TETLEY,M.L.C.,
supra note 1, at 1466-73 (reproducing relevant provisions).
48. Only the sh ip concer ned may be a rre sted for a c laim unde r s ec tions 20(2)(a ), (c )
or (s) (claims of ownership or possession, mortgage claims, and forfeitures) and for questions
unde r sect ion 20(2) (b ) 3f ising between co-owner s of the ship re lat ing to i ts posse ss ion ,
employment, or eamings. See Supreme Court Act 1981, § 21(2) .
49. See HILL,supra note 44, at 126.
50. See Crown Proceed ings Act , 1947 , I I & 12 Geo. 6, ch. 44, § 29(1) (Eng.);
Supreme Court Act 1981, § 24(2)(c); see also JACKSON,ENFORCEMENT, upra note 44, at261,326; TETLEY,M.L.e., supra note I,at 981,1189-1193.
51. See State Immunity Act, 1978, ch. 33, §§ 1(1), 3(1)(a) and (3) , 10(2) (a) (Eng.);
see also The ICongreso del Par tido, [1981] 2 Lloyd's Rep. 367, 373, 375 (H.L.); TETLEY,
M.L.e., supra note I,at 981,1167-1172.
52. See Supreme Court Act, 1981, § 20(7)(a)-(b).
53. See S.1. 1965/1776 as amended. Order 6 and Order 12also have some application
to wri ts and act ions in r em. See R.S.C. Order 75, rule 3(4). See generally TH E SUPREME
COURTPRACTICE: 1991,1212-55 (Jacob et al. eds., 1990 & 4th Cumul. Supp . 1992 a t 140-
44).
54. See generally TETLEY,M.L.e., supra note I, at 977-80.
55. R.S.C. Order 6, rule 8(1)(a). The court, may, however, extend the time for
service for good reason. See TETLEY,M.L.e., supra note I , at 881-82.
56 . As an al te rnat ive to serv ice, the defendant may acknowledge the i ssue or se rv ice
of the writ. See R.S.e. Order 75, rules 3(5),3(6) , and 8(2), refer ring to Order 10, rules 1(4)-
(5).
57. See R.S.e. Order 75, rule 4(3).
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1908 TULANE LA W REVIEW [Vol. 73:18951999] MARITIME LA W PROCEDURES 1909
property. 58 The ship is usually released from arrest (or its arres~is
prevented) by the issuance of a bail bond or a letter of undertakmg
from the protection and indemnity club of the shipoWl_ler:59
Following the trial of the suit, if the claim is allowed and the ~laI~t~ff
remains unpaid, the ship or other arrested res may be sold byjudicial
sale or the judgment may be executed against the security that hasbeen given to prevent the arrest or to release the res following its
arrest." Judicial sale conveys a title free and clear of liens." The
proceeds are then distributed to the plaintiff and any other claimants
who may have intervened in the action, according to the order of
priorities established by law, with equity also playing an important
role in the ranking."
types of claims, however, under sections 20(3)-(5) of the Act, but no
general head of maritime jurisdiction.
The maritime claims listed in section 20(2) of the Supreme Court
Act, 198165 may generally be enforced in personam, under section
21(l). Under section 20(2), in rem enforcement is permitted with
respect to claims relating to ownership and possession of a ship or anyof its shares;" claims and questions relating to possession,
employment, or earnings of a ship;" claims in respect of mortgages or
charges on a ship or any share in it;68and claims for the forfeiture and
condemnation of a ship or goods." A great many maritime claims
enforceable in rem, however, fall under either of two other categories:
Maritime liens and statutory rights in rem.
4. Arrest toEnforce Maritime Liens
Jurisdiction to bring an action inrem to enforce a maritime lien
is vested in the High Court of Justice by section 21(3) of the United
Kingdom's Supreme Court Act, 1981.70 A maritime lien is a secured
claim against the ship (and in some cases against cargo, freight,
and/or bunkers) for a service done to the ship or damage done by it .71
It is a true "privilege," derived from the civil law and the lex
maritima of medieval Europe." As such, it constitutes a substantive
right in the property of another, an ius in re alienaP and should not
be regarded as a mere matter of procedure." Maritime liens arise
3. Closed List ofMarit ime Claims
The Supreme Court Act, 1981, at section 20(2), presents a
closed list of maritime claims, which fall within the Admiralty
jurisdiction of the High Court under section 20(1)(a) and which
permit of enforcement by in personam and in rem proceedings. ~helist reflects the provisions of article 1(1) of the Arrest Convention
1952,63which, in tum, reproduced the list of maritime claims enacted
by the United Kingdom in its Supreme Court of Judicat~e
(Consolidation) Act, 1925.64 There are also a few other specific
58. Tradi tional ly , i twas the appea rance of the def endant in the act ion in r em, which
caused the action to proceed as a joint action in rem and action in personam. See The
Kherson, [1992] 2 Lloyd's Rep. 261, 267; The Nordglimt, [1987] 2 LLOYD'SREp. 470, 482;
Monte Ulia (owners) v. The Banco, [1971] I Lloyd's Rep. 49, 51-52 (C.A. 1970); The
Dupleix, 1912 P. 8 ; The Gemma, 1899 P. 285 (C .A. ); The Dic tator, 1892 .P.304 ; TETLEY,
M.L.C., supra note I , at 1030, 1036. I f the defendant did not appear, the action proceeded In
rem, but the eventual judgment was enforceable only against the arrested res or the
substituted secur ity. Under the House of Lords ' 1997 decis ion in Th e Indian Grace (No.2),
[1998] I Lloyd's Rep. 1,7, 10 (H.L.), from the time the ~dmiralty Court is seized with
jur isdiction over the action by either the service of the action inrem or I ts deemed service by
the acknowledgment of issue of the writ before service (this acknowledgment bemg
descr ibed by Lord Steyn as the "modem phraseology" for the shipowner 's appearance in the
action) , the action in rem is an action against the shipowner . Presumably, however , absent
service of the writ or the acknowledgment of its issue, the action in rem would still proceed
as agains t the re s or the subs ti tu ted securi ty and an eventual judgment in the claimant' s
favour would remain enforceable only against that property.
59. See HILL, supra note 44, at 141; MEESON,supra note 45, at 128; TETLEY,M.L.C.,
supra note I, at 981,1111.
60. See TETLEY,M.L.C., supra note 1,at 1091-1119.
61. See The Tremont, 166 Eng. Rep. 534, 534 (1841); TETLEY,M.L.C., supra note I,
at 1098-1101.
62. See TETLEY,M.L.C., supra note 1,at 883-90.
63. Ar re st Conven tion 1952 , supra note 8,ar t. 1(1).
64. Supreme Court o f Jud ica tu re (Consol idat ion) Act , 1925, 15& 16Geo . 5 , ch . 49,
§ 22 (Eng.); 13FRIINlill:RI,ARRESTOFSHIPS,supra note 8, at39-40; see also Gatoil Int'llnc.
v . Arkwrigh t-Boston Mfrs. Mut. I ns . Co . (The Sandrina ), [1985] I Lloyd' s Rep . 181, 183
(H.L.); The River Rima, [1988]2 Lloyd's Rep. 193,197 (H.L.); TETLEY,M.L.C., supra note
I , at 958 n.96. f65. See Supreme Court Act, 1981, ch. 54 (Eng.).
66. See id. § 20(2)(a).
67. See id. § 20(2)(b).68 . See id. § 20(2)(c).
69. See id. § 20(2)(s).
70. Seeid.§21(3).
71. See The Ripon City, 1897 P . 226, 242.
72. See TETLEY,M.L.C., supra note I, at 7, 12-13,22-23,27-29,55-56,59,477
(discussing the lex maritima and its origins in the medieval lex mercatoria, or "Law
Merchant,"); see also Gordon W . Paulsen, An Historica l Overview of the Deve lopment o f
Uniformity in International Maritime Law, 57 TuL. L. REV. 1065 (1983); William Tetley, The
General Marit ime Law-TIle Lex Marit ima, 20 SYRACUSE1. INT'L L. & COM. 105 (1994);
Leon E. Trakman, TIleEvolution of the Law Merchant: Our Commercial Heritage, Part 1:
Ancient and Medieval Law Merchant, 121. MAR. L. & COM. I (1980); Leon E. Trakman,
The Evolut ion o f the Law Merchan t: Our Commercial Heri tage , Part I I: TIl eModern Law
Merchant, 121. MAR.L.& COM.153 (1980).
73. See Ripon, 1897 P.at 242-430.
74. See WILLIAMTETLEY,INTERNATIONAl.ONFLICTOF LAWS:COMMON,CIVIL AND
MARITIME570--73 (1994) [hereinafter TETLEY,INTERNATIONALONFI.ICT](criticizing thedecision of the Privy Counci l in Banker s Trus t Int ' l L td . v. Todd Shipyards Corp . (The
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TULANE LAW REVIEW [Vol. 73:1895 1999] MARITIME LA W PROCEDURES
with the claims that they secure without any registration, notification,
If other formal ities; they are independent of possession and follow
he ship into whoever's hands it passes (therefore surviving a sale of
the ship by mutual agreement, al though not a judicial sale); and they
rank immediately after special legislative rights, the costs of arrest
and judicial sale and custodia legis expenses and prior possessoryliens." They therefore take precedence over ship mortgages and
hypothecs in the distribution of the proceeds of the judicial sale of
the arrested res. Under English maritime law, maritime liens are
limited to salvage, damage, seamen's and master's wages, master's
disbursements, bottomry, and respondentia (the last two being
virtually obsolete)."
(r) of the Act, many of which are statutory right in rem claims, only
one ship may be served or arrested."
The statutory right of action in rem-also sometimes inaccurately
termed a "statutory lien"-differs from a maritime lien in a least three
major ways. First, the right arises only from the time of the issue of
the writ in rem in the United Kingdom, whereas the maritime lienari ses when the services are provided to, or the damage is done by, the
ship concerned." Secondly, the claim secured by a statutory right in
rem, unlike a maritime lien claim, does not follow the ship into
whoever's hands it passes; so the ship may not be arrested if it is sold
by mutual consent before the issue of the writ. Legislative expression
of this point is found in section 21(4)(b)(i) of the Supreme Court Act,
1981.82 The rule requires that the action in rem for claims mentioned
in sections 20(2)(e)-(r) of the Act (including the statutory right in rem
claims) may only be brought against a ship if the person who would be
liable on the claim in an action in personam (the "relevant person")
was the owner, charterer, or person in possession or control of the ship
when the cause of action arose. Additional, the "relevant person" mustbe, at the time the action in rem is brought, either the ''beneficial
owner" as respects all the shares in the ship or the vessel's demise
charterer. 83 Finally, the statutory right in rem claimant has a much
lower priority than the maritime lienholder in the dist ribution of the
proceeds of the judicial sale, ranking after, rather than before, the
vessel's mortgagee. 84
80. See id. § 21(8) ; The Nord Sea & Freccia del Nord, [1989]1 LLOYD'S REp . 388,
391; see also HILL, supra note 44, at 128; MEESON,supra note 45, at 109; TETLEY,M.L.C.,
supra note I,at 978 , 1037-1038. The wri t naming more than one sh ip must be amended to
st rike out the names of al l the ships o ther than the one arr es ted . The one-ship r es tri ct ion
applies only within England and Wales , however . See Th e Kommunar (No.2), [1997] ILloyd's Rep. 8,19-21 (1996).
81. See The Monica S. , [1967] 2 Lloyd' s Rep. 113 ; see also TETLEY,M.L.C., supra
note 1,at 557, 559, 888, 917, 1020, 1136, 1037, 1400.
82. See Supreme Court Act, 1981, § 21(4)(b)(i).
83. See R.S.C. Order 75, rule 5«9)(b); see also The Guiseppe di Vittorio, [1998]1
Lloyd's Rep. 136, 151-52 (C.A. 1997) , leave to appeal to House of Lords refused, [1998] ILloyd's Rep. 136, 161 (C.A. 1997) ; The Kommunar, [1997]1 Lloyd's Rep. at 11-12.
84. TETLEY,M.L.C., supra note I,at 888-90, 1400-0 I.
5. Arrest to Enforce Statutory Rights InRem
A statutory right in rem, on the other hand, is a pure procedure,
the function of which is to confer on a claimant having a certain type
of maritime claim the right to arrest the vessel in an action in rem as
security for that claim." Such claims include supplies, repairs,
shipbuilding, and other "necessaries," as well as claims for breach of
charterparty, cargo loss or damage, towage, pilotage, and general
average." The High Court may exercise its jurisdiction over such
claims by virtue of section 21(4) of the Supreme Court Act, 1981,
but only if the specific conditions prescribed by that provision are
met, as outl ined below," For claims fall ing under sections 20(2)(e)-
6. Sister Ship Arrest
Sister ship arrest is also permi tted under sect ion 21(b)( 4 )(ii ) of
the Supreme Court Act, 1981, but subject to the condition that the
''beneficial owner" of the sister vessel, at the time the action in rem is
"Halcyon Isle"), [1980]2 LLOYD'SREp . 325 (P.c.), which held that a mar it ime lien is merely
a procedure, and not a substantive right, under U.K. law).75. See generally TETLEY,M.L.C., supra note I,at 59-60 (defining maritime liens);
id. at 886-88 (ranking maritime liens in the United Kingdom).
76. See Ripon, 1897 P.at 242 n.61; see also TETLEY,M.L.C., supra note I,at 65 n.l ,
460 n .15, 729, 894-95, 1401 . Juri sd ict ion to ad judicate these c laims i s provided by the
Supreme Court Act, 1981, ch. 54, § 20(2)(j) (Eng.) (including salvage claims), id. § 20(2)(e)
(including damage claims) & (f) (includes loss of life, personal injury claims); id. § 20(2)(0)
( including wage claims); § 20(2) (p) ( including master 's disbursement claims) ; § 20(2) (r )
(including bottomry claims).
77. See TETLEY,M.L.C., supra note 1,at 558.78 . Ju ri sdict ion over s tatutory r ight in r em c la ims i s pr ovided by the Supreme Court
Act, 1981, § 20(2) (g) ( relating to loss of ordamage to goods car ried in a ship) ; id. § 20(2)(h)
(re la ting to agreements fo r the carr iage of goods in a ship or the use or h ire of a ship); id.
§ 20(2)(k ) (r elat ing to towage c la ims); id. § 20(2) (1) ( relating to pilotage claims) ; td.
§ 2 0(2)(m) (relating to goods or materials supplied to a ship for her operation or
maintenance); id. § 20(2) (n) ( relating to construction, repair or equipment of a ship, dock
charges or dues); id. § 20(2)(q) (relating general average claims).79. See i d. § 21(4).
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1912 TULANE LA WREVIEW [Vol. 73:1895 1999] MARITIME LA W PROCEDURES 1913
brought against it, is the "relevant person" who was liable personally
on the claim when the cause of action arose."
shipping agent to bind the ship in rem, in the absence of proof that
the time charterer, voyage charterer, or the shipping agent had some
actual authority to bind the credit of the owner or demise charterer on
the claim when it arose, or the owner or demise charterer "held out"
the time charterer, voyage charterer, or shipping agent as being
authorized to bind the owner's or the demise charterer's credit whenthe claim arose."
7. Beneficial Ownership
"Beneficial ownership" is therefore a key concept in the United
Kingdom's law of arrest. It has been held to refer to "such
ownership asis vested in a person who, whether or not he is the legal
owner of the vessel, is in any case the equitable owner.?"
Ascertaining where beneficial ownership truly lies has sometimes
involved courts in the United Kingdom and Commonwealth
jurisdictions in "lifting the corporate veil," particularly where
evidence has been adduced to show that the corporate facade has
been manipulated as part of a sham calculated to confuse or defraud
creditors."
8. Demise Charterers May Bind the Ship InRem
In addition to beneficial owners, a demise charterer may bindthe ship for maritime claims contemplated by sections 20(2)(e)-(r) of
the Supreme Court Act, 1981, if he was (1) the charterer or party in
possession and control of the ship, (2) personally liable on the claim
when the cause of action arose, and (3) he is the demise charterer
when the action in rem is commenced." By comparison, in Canada
the demise charterer may not bind the ship, this right being restricted
only to "beneficial owners," a term that excludes demise charterers,
despite their complete possession and control of the vessel." On the
other hand, U'K, law is less liberal than U.S. law in this regard. U'K.
law does not authorize a time charterer, a voyage charterer, or a
9. Issue ofthe Writ Gives Rise toStatutory Rights In Rem intheUnited Kingdom
In the United Kingdom, the statutory right in rem arises on the
issue of the writ, not the arrest of the ship." In consequence, the
statutory right in rem can defeat the claim of a bona fide third-party
purchaser of the vessel, who acquires the ship between the issuance
of the writ in rem and the arrest, even if he is then unaware of the
existence of the statutory right." This appears inequitable as well as
fundamentally incompatible with the true nature of the statutory right
in rem as a mere procedure of arrest to provide pre-judgment
security, because it turns the statutory right in rem into an inchoate
maritime lien-a substantive right-which it was never intended tobe."
The British insistence on the statutory right arising with the writ
has also entailed jurisdictional complications in maritime suits
instituted against defendants domiciled in other member-States of the
European Union." Such a defendant may ordinarily be sued only in
the other European country in which he is domiciled, as required by
the Brussels Convention on Jurisdiction and the Recognition and
85. See id. at 1027, 1032-41.
86. The I Congreso del Partido, [1977] I Lloyd's Rep. 536, 561; s ee a lso The
l ermina 3001 , [1979 ] I L loyd 's Rep . 327 ,329 (Singapore CA. 1977 ) (def in ing benef ici al
( . .vnership o fa ll t he shares i n the ship a s the owne rship o fa "per son who has the r ight t o sel l,
6 ;spose ofor a lienate a ll the shares in that ship").
87. See The Tjas kemolen, [1997] 2 Lloyd's Rep. 465, 468- 71, 474 (1996); The
Avent icum, [1978 ]1 L loyd' s Rep. 184 , 187 ; The Saudi P ri nc e, [1982] 2 L loyd' s Rep. 255,
260. But see The Evpo Agnic, [1988] 2 Lloyd's Rep. 411 (CA.); The Neptune, [1986]
H .K .L .R . 345 (Hong Kong High Ct. ); T Il e Mar it ime Trade r, [1981] 2 L loyd' s Rep . 153;
TETLEY, INTERNATIONALONFLICT,supra not e 74, at 41, 159, 219-24 ; TETLEY,M.L.C. ,
supra note I , a t 573-74, 1039-41; see also The Gui seppe d i V it tor io , [1998] I L loyd' s Rep .
136, 152-56 (CA.); 17JeKommunar, [1997]1 Lloyd 's Rep. a t 12-19; The Nazym Khikmet ,
[1996] 2 Lloyd's Rep. 362 (CA.) (involving state-owned corporations).
88. See Supreme Court Act, 1981, ch. 54, § 21(4)(b)(i) (Eng.); Th e Guiseppe di
Vittorio, [1998]1 Lloyd 's Rep. a t 156-59.
89. See Mount Royal lWalsh Inc . v .The Jensen Star [1990] I F.C. 199, 208-11, 215;
see also TETLEY,M.L.C supra note I , a t581-83.
90. See TETLEY,M.L.C supra note I , a t 571-72; see also The Yuta Bondarovskaya,
[1998] 2 Lloyd 's Rep. 357, 365 (finding tha t the t ime charterer had nei ther "implied actua l
authori ty" nor "apparent or ostensible authori ty" to make bunkering contrac ts on behalf of
the demise charterer).
91 . The U .K. cour ts never th el ess ho ld that al though the ac ti on in rem "commences"
with the issue of the wri t, the Admiral ty Court 's in rem jurisdict ion is only ful ly "invoked"
when the writ is served or when the ship is arrested, whichever happens first. See The
Frec ci a del Nord, [1989 ] I L loyd 's Rep. 388, 392; The Berny , [1977 ] 2 L loyd' s Rep. 533 ,
543; The Banco, [1971]1 Lloyd 's Rep. 49, 53, 57 (CA. 1971); JACKSON,ENFORCEMENT,
supra not e 44, a t 197; MEESON,supra note 45, at 117; TETLEY,M.L.C supra not e I , at 917 .
The House of Lords has held tha t the jurisdict ion isinvoked when the wri t is served or where
it is "deemed to be s erved" as a r es ult of the acknowledgment of issue of the writ before
service. See The Indian Grace (No.2), [1998]1 Lloyd 's Rep. I , 10(H.L.).
92. See also HILL, supra note 44, at 146; JACKSON,ENFORCEMENT,upra not e 44, a t
197,430; MEESON,supra note 45, a t III .
93. See TETLEY,M.L.C., supra note I , a t 559-60, 1038.94. See id. at 560-62.
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1914 TULANE LA W REVIEW [Vol. 73:1895
100. See The Chr is tiansborg, 10 P.O. 141, 155-56 (CA. 1815) ; MEESON,supra note
45, at 129-30; TETLEY,M.L.C, supra note I, a t 981 ,1112 . Re- arr es t may be permissible in
exceptional circumstances , however , such as a mistake in the amount of the bail requested or
insolvency of the security. See The Tjaskemolen (No.2), [1997J 2 L loyd 's Rep. 476 , 479
(1996).
101 . The Tjaskemolen , [1997] 2 Lloyd' s Rep . 465, 474 ; The Moschan thy , [ 1971] I
Lloyd's Rep. 37,44; The Tribels , [1985]1 Lloyd's Rep. 128, 130; see also TETLEY,M.L.C,
supra note I, at 1116.
102. See The Tjaskemolen (No.2), [1997] 2 Lloyd's Rep. at476, 484.
103. See Admiralty Act, 1988, ch. 34, § 34(1)(a)(i) (Austl.); see also TETLEY,M.L.C.,
supra note I, at 1064.
104. See The Evangelismos, 166 Eng. Rep. 1174 (1858); see also TETLEY,M.L.e.,
supra note I , at 1065-70; see also Admiralty Act, 1988, §§ 34(1)(a)(ii), 34(1)(b) (expressly
permi tt ing an award of damages for wrongfu l a rre st a t s ec tion 34(1)(a )(i i) , a s we ll a s fo r
failing to consent to release f rom arres t of the ship or other property without good cause).
105 . See , e.g. , The Eudora, 4 P.O. 208 (1879).
1999] MARITIME LA W PROCEDURES
Enforcement of Judgments in Civil and Commercial Matters 196895
and the similar provisions of the Lugano Convention 1988 on
Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters." By its article 57, however, the Brussels
Convention 1968 does not affect any other conventions on jurisdiction
or the recognition and enforcement of judgments that bind contractingStates in relation to "particular matters." One such convention is the
Arrest Convention 1952.97 But because article 7 of the Arrest
Convention 1952 makes jurisdiction dependent on the actual arrest of
the ship, UK. courts have sometimes been held to have lost
jurisdiction in actions in rem to enforce statutory rights in rem where
the defendant ship has not actually been arrested." Such
complicat ions would not ari se if the United Kingdom recognized, as
does Canada, that the statutory right in rem procedure arises only with
arrest of the ship. United Kingdom courts appear to be backt racking
on the matter, in recognizing that they are only finally "seized" of
jurisdiction in rem when the writ is served or the ship is arrested (or if
the defendant submits to the jurisdiction of the COurt).99 There isreason to hope that the United Kingdom may change its position on
this matter.
security is seen as replacing the arrested res, thereby precluding re-
arrest in most cases.'?" The amount of the security is set by the court
in its discretion, but the general principle is a sum sufficient to cover
the claimant 's "reasonably arguable best case," together with interest
and costs, not exceeding the value of the arrested vessel.'?' A final
judgment in the claimant's favour may be enforced against thesubstituted security, just as it could have been against the arrested
ship.
Although the arrest of his ship may have grave effects on the
shipowner's business, it is not usual for the courts to impose any
requirement on the claimant to put up countersecurity to guarantee the
defendant against losses that the latter may incur as a result of the
arrest, although countersecurity is somet imes ordered in the court' s
discretion. 102 Defendants can, however, be held liable in damages for
having demanded excessive security, this rule having even been
codified by statute in Australia.'?'
11. Wrongful Arrest
Wrongful arrest in the United Kingdom may result in a
condemnation of the claimant for damages only where the court is
satisfied that the arrest was motivated by mala fides (bad faith) or
crassa negligentia (gross negligence). 104 Merely unjustif ied (in other
words, erroneous) arrest would not normally entitle the defendant to
claim damages, although he might then be able to recover costs. lOS
10. Release from Arrest
Following it s arrest, the ship is usually released from arrest after
security has been provided by the shipowner for the claim. The
security may be in the form of a bail bond, a payment of money into
court, a bank guarantee or a letter of undertaking from the
shipowner's protection and indemnity club (P & I club). The
12. Arrest and the Protection of Property Rights
Less concern is voiced in the United Kingdom than in the
United States about the safeguarding of private property rights when95. The Convent ion provides uni fo rm ru le s on jur isd ic tion and the recogn it ion and
enforcement of civil and commercial judgments as between member-states of the European
Uni on. The United Kingdom gave effect to the Brussels Convention 1968 by the Civil
Jurisdiction and Judgments Act, 1982, ch. 27 (Eng.). See generally TETLEY,INTERNATIONAL
CONFLICT,supra note 74, at 805-08, 848-56.
96. This Conven tion provides uni fo rm ru le s on juri sd ic tion and the recogni tion and
enforcement of judgments in civil and commercial matters as between courts of member-
- tates of the European Union and those of the European Free Trade Association (EFTA). It
has the force oflaw inthe United Kingdom by vir tue of the Civil Jur isdiction and Judgments
Act, 1991, ch. 12(Eng.). See generally TETLEY,INTERNATIONALONFLICT,supra note 74, at
809, 856-58.
97. See Arrest Convention 1952, supra note 8.
98. See, e.g., The Dei chland, [1989] 2 Lloyd's Rep. 113, 126 (e.A.); see a lso
TETLEY, INTERNATIONALONFLICT,supra note 74, at 810; TETLEY,M.L.e. supra note I, at
561.
99. See The Deichland, [1989]2 Lloyd's Rep. at 126; The Prinsengracht, [1993]1
Lloyd' s Rep . 41, 45, 46 ( 1992); The Anna H, [1995] I Lloyd' s Rep . 11(CA. ); HILL, supra
note 44, at 152-59; TETLEY,M.L.C supra note I , a t 889 .
1915
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1916 TULANE LA W REVIEW [Vol. 73:1895
112. On the British tradition in Canadian mar it ime law, see Theodore L. McDorman,
The History 0/ Shipping Law in Canada: Th e British Dominance, 7 DALHOUSIEL.J. 620
(1983); ER. Scott , Admiralty Jurisdict ion and Canadian Courts, 10 CAN. 8. REv. 779
(1928).
113. ITO--Int'l Terminal Operat ors Ltd. v. Miida Elccs. Inc. (The Buenos Aires
Maru) [1986]1 S.e.R. 752.
114. See generally TETLEY,M.L.e., supra note I, a t41-53 (describing the h is to ry of
Canadian maritime law and its two main "limbs," as well as of Canadian maritime
jurisdiction); William Tetley, A Definit ion a/Canadian Marit ime Law, 30 U. BRIT. COLUM.
L. REV. 137 (1996) [hereinafter Tetley, Canadian Maritime Law].
115. But see Chartwe ll Shipping L td . v .Q.N.S. Pape r Co. Ltd. [1989] 2 S.C.R. 683 ,
717-31 (recognizing that civil-law principles, applied by the former High Court of Admiralty
in England, also form an integral part of Canadian maritime law).
116. The true date ofreception of English Admiralty law into Canadian law, however ,
i s a rguably 1891, when Canada adopted The Admira lty Act , 1891 , 54 & 55 Vict., ch. 29
(Can.), giving effect to the United Kingdom's Colonial Courts of Admiralty Act, 1890,53 &
54 Viet. , ch. 27 (Eng.), rather than 1934, when Canada adopted its Admiralty Act, 1934,24
& 25 Geo. 5, ch. 31 (Can.). See TETLEY,M.L.e., supra note I, at 48; Tetley, Canadian
Maritime Law, supra note 114, at 148-49.
117. See The Buenos Aires Maru [1986]1 S.e.R. at 752, 771, 776, 779.
1999] MARITIME LA WPROCEDURES
ships or other assets are arrested in rem by the Admiralty Court!"
There is no general requirement in the United Kingdom for a post-
seizure hearing following the arrest, as there now is in the United
States because of the U.S. Constitutional principle of "due process."
Nevertheless, some safeguards of ownership rights are bui lt into the
British system of ship arrest. For example, a party wishing to
prevent the arrest of property in an action in rem may, by filing a
praecipe in the prescribed form, obtain the entry of a caveat against
arrest in the caveat book kept in the Admiralty and Commercial
Registry in London."? Although the entry of the caveat does not
prevent arrest of the res, the caveator, on a subsequent motion after
arrest, may obtain the discharge of the arrest warrant and the
condemnat ion of the arresting party in damages, if the latter is unable
to show "good and sufficient reason" for having arrested. Is
Where a foreign ship registered in a port of a state having a
consulate in London is to be arrested in the United Kingdom in an
action in rem for wages, prior notice of the arrest must be given to the
consul concerned.l '" Similar notif ication rules exist where the UnitedKingdom has undertaken by treaty or convention to minimize the
possibili ty of arrest of ships of another state . I 10
Admiralty Practice Direction No. 3 provides procedures to
protect the rights of owners of arrested cargo to secure its discharge
from a ship not under arrest, as well as the rights of owners of cargo
not under arrest to secure its discharge from a ship that is under
arrest.'!'
Such procedures provide significant protections for private
property rights, although a general rule would appear desirable.
13. Conclusion-Arrest-United Kingdom
The action in rem and the arrest of ships, as developed over the
centuries by English Admiralty judges, provide an effective means of
enforcing marit ime claims fall ing within the categories enumerated
today in the United Kingdom's Supreme Court Act, 1981. England,
through its ancient admiralty law, has also provided the basis for the
arrest in rem in other common-law countries, particularly
Commonwealth countries such as Canada. It is particularly
important that the right to arrest in the United Kingdom is limited to
a "closed list" of marit ime claims.
B. Canada
1. Introduction-"Canadian Maritime Law"
The central fact of Canadian history is that Canada did not join
the American Revolution in 1776, but rather remained within the
British Empire, now the British Commonwealth of Nations.
Canadian law, including Canadian maritime law,"" therefore
traditionally adhered closely to English law, except in Quebec,
Canada's sole civil-law province, where the civilian legal t radition of
France developed independently, although influenced by the
common law of the neighbouring Canadian and U.S. jurisdictions.
The Supreme Court of Canada, inITO-International TerminalOperators Ltd. v . Miida Electronics Inc. (The Buenos Aires Maru),113
held that Canadian maritime law'" consists of two major components:
1) a body of federal law encompassing the (English) common law
principles!" of tort , cont ract and bailment, received from England as
of 1934,116 as subsequently developed in Canada by statute and
judicial precedent;"? and 2) a wider category of law that the fomier
Exchequer Court of Canada (now the Federal Court of Canada) would
have administered if it had had, on its Admiralty side, an unlimited
106. D.e. JACKSON,TH E ENFORCEMENTFMARITIMECLAIMS157 (1985) (referring to
the constitutional question sur rounding seizure of property without hearing in the United
States, but making no reference to the United Kingdom, and even the United States reference
appears tohave been dropped from the second edition of 1996) .
107. See R.S.e. Order 75, rule 6(1).
108 . R.S.e. Order 75, ru le 7 .
109. See R.S.e. Order 75, rule 5(5).
110 . R.S.e. Order 75, ru le 5(7).
Ill. See The Supreme Court Practice, 1993, vol . 2 a t 361 , reproduced in MEESON,supra note 45, at496. See generally TETLEY,M.L.e., supra note I , at981-82.
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1918 TULANE LAW REVIEW [Vol. 73:1895 1999] MARITIME LA WPROCEDURES 1919
jurisdiction in relation to marit ime and admiralty matters. II8
The
words "maritime" and "admiralty" were to be interpreted "within the
modem context of commerce and shipping.'?" They were not to be
limited by the historical confmes of English admiralty jurisdiction, but
only by the division of legislative powers between the federal
Parliament and the provincial legislatures, under Canada'sConstitution Act, 1867.120 To fall under the second branch of
"Canadian maritime law," the court must determine that "the subject-
matter [of the claim] under consideration ... is so integrally connected
to maritime matters as to be legitimate Canadian maritime law withinfd 11
. 1 . ,,121e era egis atrvecompetence.Both branches of the definition of "Canadian maritime law" are
reflected in the statutory definition of the term at section 2(1) of
Canada's Federal Court Act.122
latter of which there is an appeal to the Supreme Court of Canada by
leave of that Court.
The Supreme Court has clearly established that the FederalCourt's admiralty jurisdiction depends upon three criteria.!" (1) "a
statutory grant of jurisdiction by the federal Parliament"; (2) "an
existing body of federal law" that "is essential to the disposition of thecase and that nourishes the statutory grant of jurisdiction" ("Canadian
maritime law" being such an existing body of federal law); and (3) the
applicable law being a "law of Canada" as the phrase is understood in
section 101 of the Constitution Act, 1867.125
118. Seeid.at774.119. Id. ; see a lso The Monk Corp. v. I sland Fer ti lizers Ltd. [1991]1 S.e.R. 779, 800-
3. Open List of Maritime Claims
Under the Federal Court Act, the jurisdiction of the Trial
Division of the Federal Court extends generally to
allcasesinwhicha claimforreliefismadeor a remedyis soughtunderor by virtue of Canadianmaritimelaw or any other law of Canadarelatingto anymatter comingwithinthe class of subjectof navigation
and shipping,exce~tto the extent thatjurisdictionhas been otherwisespeciallyassigned. 6
Section 22(2) then sets forth nineteen specific heads of jurisdiction
(sections 22(2)(a)-(s) inclusive), closely resembling the enumerated
heads of English Admiralty jurisdiction found in the United
Kingdom's Supreme Court Act, 1981.127 Section 22(2) begins with
the words "[w]ithout limiting the generality of subsection (1)"128 and
declares that the listing that follows is "for greater certainty.,,129 It
therefore would appear that the list of maritime claims in section
22(2) is not a "closed list," but rather an "open list," the claims
enumerated there being merely examples of the categories of claim
subject to the Trial Division's original, general jurisdiction under
section 22(1) over claims arising under "Canadian maritime law,"!"
2. Canadian Maritime Jurisdiction
Admiralty jurisdiction in Canada is exercised today by the
Federal Court of Canada, concurrently with the courts of the
provinces and terri tories, under section 22(1) of the Federal Court
Act.123 Most maritime law cases are heard and decided in the Federal
Court, rather than in the provincial/territorial courts, however,
because the Federal Court provides lit igants with the action in rem
and the Court's process runs throughout Canada (section 55(1). The
Federal Court has a Trial Division and an Appeal Division, from the
01. 120. Formerly known as the Bri ti sh North America Act , 1867, 30 & 31 Vict., ch. 3
(Eng.), and renamed the "Consti tution Act, 1867" pursuant to the Canada Act 1982, ch. II(Eng.). The Constitution Act, 1867, isnow cited asConsti tutional Act, 1982, R.s .e ., App. II,
No.5 (1985) (Can.).121. The Buenos Aires Maru [1986] IS.C.R. at 774; see also Bow Valley Husky
(Bermuda) Ltd. v.Saint John Shipbuilding Ltd. [1997]3 S.e.R. 1210, 1257-59; Monk Corp.
[1991]1 S.e.R. at 797,800; Pakis tan Nat 'l Shipping Corp. v.Canada [1997]3 F.e. 601,616,
624; Corcovado Yacht Charters Ltd. v.Foreshore Projects Ltd. [1998]144 F.T.R. 126, 130-33
(Fed. Ct.); Bomstein Seafoods Canada Ltd. v. Hutcheon [1997] 140 F.T.R. 241, 251 (Fed.
Ct.); Ferguson v. Arctic Transp. Ltd. [1997]135 F.T.R. 243, 251-52 (Fed. Ct.).
122 . Federa l Cour t Act , R.S.e. , ch. F- 7, § 2(1) ( 1985) (Can. ) ("'Canad ian mari time
law' means the law that was administered by the Exchequer Court of Canada on its
Admiralty s ide by vir tue of the Admiralty Act, chapter A-I of the Revised Statutes of Canada,
1970, or any other s tatute , or that would have been so adminis tered if that Court had had, on
its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that
law has been altered by this Act or an y other Act of Par liament . .. . " ).123. See id. § 22(1).
124. See The Buenos Aires Maru [1986] IS.e.R. 752 at 766; s ee a lso TETLEY,
M.L.e., supra note I,at 46-47.
125 . The Buenos Aire s Maru [1986]1 S.e.R. at766.
126. Federal Court Act, § 22(1).
127. Compare id. § 20(2)(a)-(s), with Supreme Court Act, 1981, ch.54, § 21(2) -(4)
(Eng.).
128. Federal Court Act, § 22(2) .
129. Id.
130. See The Robert Simpson Montreal Ltd. v. Hamburg-Amerika Linie
Norddeutscher [1973] F.e. 1356, 1367; Kuhr v.The Ship Friedrich Busse [1982]2 F.C. 709,
716 ,717 ; Balod is v . The Ship Prince George [1985] IF.e. 890, 896 (holding that "as
specifically s tated in the opening words of subsection 22(2) , the enumeration of illus trative
jurisdictional claims does not exclude, or inhibit, the general jurisdiction given by subsection
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1920 TULANE LAW REVIEW
~4.0.. See id .. § 22(2)(j ) (provid ing jurisdict ion over salvage); id. § 22(2) (e) , (g)
(prov~dmgJunsdlctlOn over damage and loss ofhfe/personal injury); id. § 22(2)(0) (providing
jurisdiction over wages);. id.. § 22(2)(P) (providing jurisdiction over master's disbursements);
id. § 22(2)(c) (providing jurisdiction over bottomry and respondentia).
141. See id. .§ ~2(2)(f), (h) , ( i) (provid ing jurisdict ion over carriage of goods); id.
22(2)(1) (~rovldmg jurisdietion over charterparties); id. 22(2)(k) (providing jurisdiction over
to,:,"age); id. 22(2)(m) ~r?viding jurisdict ion over goods, materia ls or services suppl ied to a
ship); id. 22(2)(n) (providing jurisdiction over construction, repair and equipping ofa ship).
142. See id. §§ 22(2), 43(2)-(3).143. See Supreme Court Act , 1981, ch. 54, § 20(2)(m) (Eng.).
144. See TETLEY,M.L.e. supra not e 1 , a t 578 -80 ( id en ti fy ing the b road scope of theCanadian understanding of "necessaries").
145. See id. at 575-76, 680-81.
146. See Federal Court Act, §§ 22(2)(r), 43(3).
147. See TETLEY,M.L.e., supra note 1 ,a t 837.
148 . Federal Cou rt Act , §§43(2)-(3),22(2)(1), (q), (s).
149. Se e id. § 22(2)(s); see also TETLEY,M.L.e., supra note 1, at 94. Such claims
may also.g ive nse to "spec ia l legisla tive rights" of seizure , detention and (sometimes) of sale
of the ship. See TETLEY,M.L.e., supra note 1,at 94-98.
150' . See Federal C~urt Act , § 22(2)(1); see also TETLEY,M.L.e., supra note 1 ,a t 457-
?8. Certain Canadian deCISIOnshave e.ven held that there i~.a full maritime lien for pilotage
IIICanada, although the most recent ruhng on the question, Ostgota Enskilda Bank v. Starway
Shipping LId. [1994] 73 F.T.R. 304, 306 (Fed. Ct. ), i s inconclusive. See TETLEY,M.L.C.supra note 1, at 462-64. '
151. See Federal Court Act, § 22(2)(q); see also TETLEY,M.L.e., supra note 1 ,a t452-53.
[Vol. 73:1895 1999] MARITIME LA WPROCEDURES
4. The Action InRem=-Canada
As in the United Kingdom, the action in rem; focused on arrest
of the res, is the principal method of enforcing maritime claims inCanada, although in personam enforcement is also permitted by
section 43(1) of the Federal Court ACt.131In general, neither the flag,
registry nor ownership of the vessel, nor the place where the claimarose, restricts Admiralty jurisdiction. 132
Nevertheless, as in the United Kingdom, Canada's Crown
Liability Ad33 prohibits proceedings in rem against Crown ships or
cargoes. The Federal Court Act also expressly exempts warships,
coast-guard ships, police vessels, as well as ships owned or operatedIy Canada or a province, and their cargoes, from in rem actions.' :"
t -oreign sovereign immunity is also granted under the State ImmunityAd35 and the Federal Court Ad36 to ships and cargoes owned by
foreign states and their agencies, but does not extend to foreign state-
owned vessels or cargoes used or intended for use in commercial
activity.
Both traditional maritime liens (salvage, damage, seamen's and
master's wages, master's disbursements, bottomry, and
resp?ndentiaY40 and statutory rights in rem (for example, supplies
repairs and other "necessaries," breach of charterparty cargo claims'd 141 "an towage) are also enforceable in rem.142
''Necessaries'' is a somewhat wider concept in Canada than in theUnited Kingdom, in that section 22(2)(m) of the Federal Court Act
confe~s jurisdiction over claims, not only for "goods or materials"
supphed to a ship for its operation or maintenance 143but also over
claims for "services,"!" including claims for 'stevedoring and
lighterage.145 Marine insurance claims are also in rem claims in
Cana?a,146:vvh~reasit is doubtful that any right against the ship forunpaid manne insurance premiums exists in England."?
. !he Fe?eral Court Act also features three peculiar types ofmantime claims that are best termed "quasi maritime liens," in that
the~ .follow ~e. ShiP.' even if it is sold by mutual consent (as do
~adItIo?al mantime hens), and yet they rank as if they were statutory
n~ts in rem, after (rather than before) ship mortgages. ':" Theseclaims are for dock charges, harbour dues and canal tolls' 1 49pilotage; 150and general average contributions. 151 '
5. Arrest for Maritime Liens, Statutory Rights InRem, and Quasi-
Maritime Liens
Arrest in rem is possible under the Federal Court Act for claims
respecting title, possession or ownership of a ship or share or
proceeds of sale of a ship; 137 questions between co-owners
concerning possession, employment or earnings of a ship.!" and
claims arising from ship mortgages, hypothecation or charges. 139
22(1) and the defin it ion in sec tion 2"); see also Ferguson v. Arctic Transp. Ltd. [1997]135
F.T.R. 243, 250 (Fed. Ct.).
131. See Federal Court Act , § 43( 1) .
132. See Federal Court Act, § 22(3)(a), (c); see also Tropwood A.G. v .Sivaco Wire &Nail Co. [1979] 2 S.e.R. 157, 161; Ferguson [1997] 135 F.T.R. at 250-51, 253. The
jurisdict ion conferred by § 22(3)(a ) and (c) does not extend to foreigners general ly . See
Federal Court Act , § 22(3)(a ), (c) . But see Oy Nokia Ab v. The Martha Russ [ 1973] EC.
394, 402 (conc luding tha t sec tions 22(3) and (c) do not assert jur isdict ion over foreigners
generally).
133. See Crown Liabi li ty Act , R.S.e ., ch. C-50, § 2 (1985) (Can.) (defining "Crown
ship"); id. § 14 (prohibiting in rem enforcement); see also Canada Shipping Act , R.S.C., ch.
S-9, § 2 (1985) (Can.) (defining "government ship" and "ships belonging to Her Majesty").
134. Federal Court Act , § 43(7)(a )-(b). See generally TETLEY,M.L.C., supra not e 1 ,
at 1193-98.
135. S tat e Immun ity Ac t, c h, S -18, §§3 ,7 (1985) (Can.) ; see also Sarafi v . The Iran
AfzaI [1996]2 Ee. 954, 964 ; see generally TETLEY,M.L.e., supra note I , a t 1180-84.
136. Federal Court Act , §43(7)(c) .
137. See id. §§ 22(2)(a), 43(2).
138. See it! §§ 22(2)(b), 43(2).
139. See id. §§ 22(2)(c), 43(2).
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1922 TULANE LA W REVIEW [Vol. 73:1895
161. See TETLEY,M.L.e., supra note 1 ,a t557-58,577-78, 1037.
162 . Federal Cour t Ac t, R .S .e. , c h. F -7 , §§43 (3 ), 22 (2 )( e) -( i) , ( k) , (m) -(n) , (p) , ( r)
(1985) (Can.).
163 . See, e.g. , Fibreco Pulp v. Sta r Shipping NS [1998) 145 F .T .R . 125 , 137 (Fed .
Ct.).
164. Compare Supreme Court Act, 1981, ch , 54, § 21(4)(b)(Eng.), with Federal Court
Act, § 43(3).
165. See TETLEY,M.L.e., supra note I , a t583 n.149; see also Pegasus Lines Ltd . SA.
v .Devil Shipping Ltd . [1996) 120 F.T.R 241, 253-56.
166. Mount Royal lWalsh Inc . v .The Jensen Star [1990)1 F.e . 199,210 (Fed. Ct. ).
167. Id. at 209; see also Pegasus Lines Ltd. [1996)120 F.T.R. at 256.
1999] MARITIME LA W PROCEDURES
7. The Statutory Right In Rem Arises in Canada with Arrest of the
Ship
Contrary to the position in the United Kingdom, statutory rights
in rem in Canada do not make their holders secured creditors and
such rights arise only when the ship or other res is actually arrested in
the action in rem. 161 This solution is consistent wi th the true nature
of the statutory right as a mere procedure, rather than a substantive
property right or inchoate maritime lien, and i t is also more equitable
to third parties who acquire ships before their arrest without
knowledge of the right of the in rem claimant.
6. Canadian In Rem Process
Arrest in rem in Canada fol lows procedures generally similar to
those of the United Kingdom and is now governed by the Federal
Court Rules, 1998.152 The statement of claim is served by a sheriff,
together with the warrant of arrest issued by a "designated officer" of
the Federal Court and the claimant 's "affidavit to lead warrant."!"
Service on a vessel is effected by attaching these documents to a
"conspicuous part of the ship."!" Service in rem may only be
effected on a ship in the jurisdiction.!" and must occur within sixty
days of the issuance of the statement of claim.!" The defendant
shipowner's appearance in the action causes it to proceed as a joint in
rem and in personam sui!
The ship is usually released from arrest upon the giving of
security. '" Following trial , if the claim has been allowed, the arrested
vessel may be sold in a judicial sale to pay the debt or execution may
be levied on the security that replaces it.158 Property sold in a judicial
sale i s free of any liens.!" Distribution of the proceeds is according to
a ranking system generaily identical to that of the United Kingdom,
subject to variation to take account of the demands of equity. 160
8. Beneficial Ownership
Under section 43(3) of the Federal Court Act, in order for the
jurisdiction over various statutory right in rem claims to be exercised
in rem.!" the ship, which is the subject of the action, must be
beneficially owned at the t ime of the commencement of the action by
the person who was the vessel's beneficial owner at the time whenthe cause of action arose.l" The statutory right therefore does not
travel with the ship, but is defeated by a sale of the vessel by mutual
consent prior to the service of the arrest warrant. Moreover,
beneficial ownership in Canada is considered with respect to the
vessel itself, rather than with respect to the shares in it as in the
United Kingdom. 164
Although section 43(3) does not so expressly state, the beneficial
owner can only bind the ship in rem ifhe was personally liable on the
claim at the time w~en the cause of action arose.!"
The "beneficial owner" in Canada has been defined as including
someone ' 'who stands behind the registered owner in situations where
the latter functions merely as an intermediary, like a trustee, a legalrepresentative or an agent."!" The title of the beneficial owner has
been described as one "characterized essentially by the right to dispose
of the res.?"? It could therefore include a parent corporation or a
152 . The Federal Cour t Rul es 1998, SOR 98/106, came into force on April 25,1998
and replaced the former Federal Court Rules, e .R.e . 1978, ch. 663 as amended. Particula r
p rov is ions on "Admi ra lt y Act ions" are found in Par t 13, wh ich compri ses o f Rul es 475 to
500 inclusive. See FED.CT.R, Rules 475-500.
153 . FED .CT.R, Rul e 482 (1 ). No te, however , t hat t he Fede ra l Cou rt of Canada i snot
bound by the str ic t rules of English Admiral ty pract ice. See Elde rs Grain Co. v. The Ralph
Misener [1997] 125 F.T .R . 209, 1997 AMC 1329 (Fed. Ct.) (upholding s ervice of the
s tat emen t o f c laim inan a ct ion in rem on the mas te r aboard the ship- ra th er t han by pos ti ng
th e s ta tement on the mas t or some o ther c on sp ic uous pa rt o f t he vesse l, a s would have been
required inEngland-as val id).
154. FED.CT. R, Rules , j79(1)(a ), 481, & 482(1). Alterna te service on a person who
appears to be incharge of the property is permissib le , under Rule 479(2), i f access cannot be
obtained to the property in question. See, e.g., 458093 B.e . L td . v . Hi ll s [1998 ] 144 F .T .R .
236 (Fed. Ct. ) (deciding under the former, but similar , Rule 1002(6) , where "substi tu tional
service" on the vesse l owner was authorized because the vesse l was occupied by the owner 's
aggressive Rottweiler).
155. Arrest does not require possession or responsib il ity for the property; i t remains
vested in the person in possession immedia te ly before the arrest. See FED. CT. R., Rul e
483(1).
156. See id. Rule 203(I) . The former Rule 306 provided for service within 12months
from filing.
157. See id. Rules 485-489.
158. See id. Rule 490.
159. See id. Rule 490(3).
160. See TETLEY,M.L.C., supra no te I , a t 890 -97; see also Sco tt S tee l L td . v . The
Alarissa [1996] 2 r.c 883, 893-94, 896-901.
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175. See Supreme Court Act 1981, § 21(4)(b)(ii) .
176. A ship owned by the parent corporation of the company that owns the "offending
sh ip" i s no t a s ist er vesse l o f the "offending sh ip" because "owner " under § 43(8) means
"registered owner." See Hollandsche Aannaming Maatschappij, b.v. v.The Ryan Leet [1997]
135 F.T.R. 67,69 (Fed. Ct.).
177. See Noranda Sales Corp. v.The British Tay [1994] 77 F.T.R. 8 (Fed. Ct.).
178. See TETLEY,M.L.C., supra note I, a t 1041-42 (comparing U.K. and Canad ian
law on sister ship arrest).
179. See Amican Navigation Inc. v.Densan Shipping Co. [1997)143 F.T.R. 284, 290
(Fed. Ct.), modified on other grounds, [1997)137 F.T.R. 132 (Fed. Ct.); Atlantic Shipping
(London) Ltd. v.The Captain Forever [1995] 97 F.T.R. 32, 34 (Fed. Ct.); Taiyo Gyogyo K.K.
v. The Tuo Hai [1992) 48 F.T.R. 59 (Fed. Ct .); Argosy Seafoods Ltd. v . Atlan ti c Bounty
[1992] 45 F.T.R. 114,120 (Fed. Ct.); see also TETLEY,M.L.C., supra note 1,at 1000.
180. See N.M. Paterson & Sons Ltd. v. The Birchglen [1990) 3 r.c. 301, 306-08;
Freighters (Steamship) Agents Co. v.The Number Four [1983) I F .c . 852, 855-57.
[Vol. 73:1895 1999] MARITIME LA W PROCEDURES
21(4)(b)(ii) of the Supreme Court Act, 1981, is limited to claims
under sections 20(2)(e)-(r) of that Act, and section 21(8) restricts
arrest to one ship per claim.!" On the other hand, the U.K. statute
permits sister ship arrest of a vessel beneficially owned by a charterer
(including a time or voyage charterer) or a person who was in
possession or control of the "offending ship" if that party was
personally liable on the claim when it arose. In Canada, however,
only ships beneficially owned by the owner of the "offending ship"
may be arrested.'76 Also, in Canada, any change in the "beneficial
ownership" of the "offending ship" occurring after the cause of
action arises and before the action in rem is brought causes the court
to lack jurisdiction over the sister ship,177which is arguably not the
case in the United Kingdom.!"
holding company of the registered shipowner, provided that party had
some legal or equitable interest in the vessel, including a right to
dispose of it.'68 This is generally similar to English law. A mere
"beneficial interest" (for example, management) does not qualify as
"beneficial ownership.t'l"
Canadian courts, like those of the United Kingdom, are preparedto "lift the corporate veil" to determine where true beneficial
ownership lies, but will generally do so only where they have evidence
that the corporate structure is being manipulated to create a sham or
fraud designed to avoid arrest and in rem liability!"
9. The Demise Charterer Does Not Bind the Ship InRem in Canada
Whereas in the United Kingdom, the demise charterer of a ship
may bind the ship in rem,17Iin Canada only the beneficial owner of
~e vessel may bind the ship in rem.!" As in the United Kingdom,
time and voyage charterers do not ordinarily bind the ship in Canada,
unless they act as agents of the beneficial owner.173
11. Release of the Ship
An arrested ship may be released in Canada, as in the United
Kingdom, on the giving of security, whether in the form of a bail
bond, a payment into court, a bank guarantee or a P & I club letter ofundertaking. The quantum is at the court's discretion, but generally
the amount must be sufficient to cover the plaintiff 's "reasonably
arguable best case," together with interest and costs, without
exceeding the value of the vessel.!" The security replaces the res180
and usually prevents its re-arrest for the same claim.
The claimant is generally not required to give countersecurity,
although the Federal Court Rules, 1998 do authorize the court to order
a plaintiff to give "security for costs" of the defendant in the action, in
a number of specific situations (for example, where the plaintiff is
ordinarily resident outside Canada, where he has not provided an
address or has provided an incorrect address, and where there is reason
10. Sister Ship Arrest
Sister ship arrest has been permitted in Canada since 1992
under section 43(8) of the Federal Court Act.174 In Canada, sister
ship arrest is permitted for any marit ime claim under section 22 of
the Act; and more than one ship may be arrested on a claim. By
comparison, in the United Kingdom, sister ship arrest, under section
168. See TETLEY,M.L.C., supra note I, at 581-82.
169. The Looiersgracht, [1995)2 Lloyd's Rep. 411, 414-15 (Fed. Ct. 1994) .
170. See , e.g. , Fibreco Pulp v. Star Shipping NS [1998] 145 F.T.R. 125, 136-37 (Fed.
Ct.); Pegasus Lines [199?] ~20 F.T.R. at 265-66; The Looiersgracht, [1995] 2 Lloyd's Rep. at
414-15; Med Coast Shipping v. Cuba, 1993 AMC 2530 (Que. C.S.); see also TETLEY,
M.L.C., supra note I, at 586,1044.
171. See Supreme Court Act, 1981, ch. 54, § 21(4)(b)(i)(Eng.).
172. See Federal Court Act, R.S .c ., ch. F-7, § 43(3) (1985) (Can.); see also Pegasus
Lines [1996~.120 F.T.R. at256; Mount RoyalfWalsh Inc. v. The Jensen Star [1990] I F .C.
199,209 (c it ing The Pe rmma 3001, [ 1979] I Lloyd' s Rep. 327 ,328-29 (Singapor e C.A. );
The I Congreso del Par tido, [ I977] I Lloyd's Rep. 536, 560».
173. See TETLEY,M.L.C., supra note I, a t583 , 1043; see also Viktor Overseas Ltd. v.
Deiulemar Compagnia Di Navigazione S.P.A. [1997] 138 F.T.R. 316 (Fed. Ct.) (upholding an
a rre st in rem for sh ip repai rs, on the grounds tha t the terms of the con tr ac t and the demise
charterer 's s ignature of it, on behalf of the shipowner , indicated that the charterer was acting
as the owner's agent).
174. See Federal Court Act, § 43(8) , amended by S.c. ch. 8, § 12 (1990) (Can.) (in
force Feb. I , 1992) . The specific rules governing sis ter ship arres t in Canada are not overly
ngorous. See Elecnor S.A. v. The Soren Toubro [1996] 3 F.C. 422, 423 (holding that there
was no need to name any or a ll si st er sh ips in the statement of claim or toa rre st the fi rst oneto enter thejurisdiction).
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1926 TULANE LA W REVIEW [Vol. 73:1895
186. Par t I of the Constitution Act, 1982, which is itself Schedule B to the Canada Act,
1982, ch. I I (Eng.), by which the Canadian Constitution was "repatr iated" f rom England.
See Canada Act, 1982, R.S.C., App. I I, No. 44 (1985) (Can.).
187 . Var ious Chat te r p rovi sions were invoked to challenge the seizure and
confiscation of a tug (or suspected drug offences in Paquette v. European Marine
Transporters [1993] RJ .Q. 108 (Que. e.A. ), bu t the su it was d ismiss ed on juri sdict iona l
grounds. See generally TETLEY,M.L.e., supra note I, at 1014-15. In Jose Pereira E Hijos ,
S.A. v. Canada [1997] 2 Ee. 84, 108-09, sect ion 8 of the Charter was invoked to chal lengethe "ar rest" by Canadian authorities of a Spanish f ishing vessel on the high seas for f isheries
offenses under Canadian law dur ing the 1995 "turbot war" between Canada and Spain. The
Court held that the claim as stated r elated to the per ce ived d is cr imina to ry t rea tment by
Canada of Spanish and Por tuguese f ishing vessels , and as such was concemed with equality
rights under section 15of the Charter, rather than with unreasonable search and seizure under
section 8.
188 . See Jose Pere ira E Hijos, [1996] 2 F.e. a t 107-08 (ho ld ing tha t sect ion 15of the
Charter, concerning equality before the law, was inapplicable to corporations, and therefore
could not be invoked by the corporate vessel owner . Counsel for both par ties agreed that the
corporate plaintiff could not claim r ights under section 7 of the Charter , which guarantees the
r ight to " life , l iber ty and secur ity of the person and the r ight not tobe deprived thereof except
in accordance with the principles of fundamental justice").
189. See generally TETLEY,M.L.e., supra note I , at 1011-16.
190. Certain case law of the Supreme Court of Canada now holds that "Charter
values, " as we ll a s i ts r ules , may be appea led to. These "values" migh t . lend support to any
eventual Charter challenge of the validity of an arrest in rem.
1999] MARITIME LA W PROCEDURES
to believe that the action is fiivolous and vexatious and that the
plaintiff would have insufficient assets in Canada available to pay the
costs of the defendant if ordered to do SO).181
Unlike the Bill of Rights, the Canadian Charter of Rights and
Freedoms!" of 1982 is entrenched in the constitution; it applies to
provincial as well as federal matters and is executory. Nevertheless,
the Charter does not expressly protect private property rights, and i t i s
unclear to what degree, if at all, the freedom from "unreasonable
search and seizure" under section 8 could be invoked successfully by a
shipowner to contest the arrest of his vessel without prior notice or
hearing."? In addition, certain Charter provisions apply only to
individuals, not to corporations, and are therefore ineffective in
protecting the rights of most shipowners.!" The possibility of
alternative relief, through an action in damages for wrongful arrest, the
importance of preventing the vessel leaving the jurisdict ion, and the
general principle of section 1 of the Charter, by which the rights and
freedoms guaranteed are declared to be "subject to such reasonable
limits prescribed by law as can be demonstrably justified in a free and
democratic society," could well render the Charter ineffective in
challenging arrest in rem on section 8 grounds.!" Nevertheless, such a
challenge remains to be taken in Canada and, if pleaded skillfully,might result in a decision favouring the shipowner!"
Canada, like the United Kingdom, permits a party wishing to
prevent arrest of the res to enter a caveat warrant against arrest, by
which he undertakes to give bail in respect of any action in rem within
12. Wrongful Arrest
Canada follows English admiralty law in condemning thearresting party in damages for wrongful arrest of a ship or other res
only where the court decides that the arrest was prompted by bad
faith (mala fides) or gross negligence (crassa negligentia ).182
l3. Arrest and the Protection of Property Rights
Canada has no entrenched constitutional principle of "due
process of law" comparable to' the due process concept of the Fifth
and Fourteenth Amendments to the United States Const itut ion. Both
"due process" and the "enjoyment of property" are mentioned in
Canada's 1960 Bill of Rights.!" but the bill was never entrenched in
the Canadian Constitution and so can be amended like any other
statute. Furthermore, it applies only to matters fall ing under federal
(not provincial) legislative jurisdiction in Canada and is purely
declaratory, rather than executory in nature, having no "teeth"
permitting incompatible legislation to be struck down for violat ion of
the rights that it declares.!" In addition, "due process of law" under
the Bill of Rights of 1960 has been held to require only compliance
wi th the legal processes recognized by Parliament and the courts.!"
The Bill of Rights is therefore of doubtful utility in challenging the
validity of any arrest in rem that has been effected in compliance
with the applicable statute and regulations.
181. See FED. CT. R., Rule 416(l)(aHh); see also Ferguson v. Arctic Transp. Ltd.
[1996] 118 ET.R. 154 (Fed. Ct.) (decided under former Rule 446(I )(a) on secur ity for costs).
Such secur ity isgiven by a payment into court or the f il ing of a bond. See FED.CT.R., Rule
418.
182. See Armada Lines Ltd. v. Chaleur Fertilizers Ltd [1997] 2 S.e.R. 617 , 628 ; see
also TETLEY,M.L.C., supra note I, a t 1058-62; Robert Margol is, Note , Damages for the
Wrongful Arrest of a Vessel: The Venerable Rule Confirmed, [1998] LLOYDSMAR.& COM.
L.Q. I I.
183. See Canadian Bill of Rights, S .e ., 8&9 Eliz. 2,ch. 44, § I (a) (1960) (Can.).
184. See TETLEY,M.L.e., supra note I, a t 1007.
185. See CUff v .The Queen [1972] S .C .R. 889, 916 ; Regina v . Appleby (No.2), 76
D.L.R. (3d) 110, 118 (N.B. Supr. Ct. App. Div. 1977) ; see also TETLEY,M.L.e., supra note
I, at 1008-11.
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196. See William Tetley, The General Maritime Law=The Lex Maritima, 20 SYRACUSE
J. INT'L. L. & COMM.105, 121-28 (1994).
197. 46 U.S.c. §§30101, 31301-31304, 31321-31330,31341-31343 (1997); TETLEY,
M.L.C., supra note 1 ,a t 1449-65 (reproduc ing tex t o f Ac t). Th is s ta tu te i s some times a lso
called the Mar it ime Co~ercial Ins truments and Liens Act or, using older tit les, the Federal
Mar it ime Liens Act or the "Ship Mortgage Act of 1920 as amended." See TETLEY,M.L.C.,
supra note 1, at 40-41. The Act supersedes any U.S. st ate statutes purporting to create
maritime liens enforceable by civil actions in rem. See 46 U.s. c. § 31307; see also Silva v.
MN First Lady, 28 F. Supp. 2d 581, 584, 1998 AMC 1649, 1651 (S.D. Cal. 1998). Longbefore thei r cod ifi cat ion in the former Federa l Mari time Liens Act , mari time l iens Were
recognized and enforced as substantive rights in America. See, e.g., The Bird of Paradise, 72
U.S. (5 Wall .) 545, 555 (1866) (mari time l ien on cargo); The Nestor , 18 F. Cas . 9 (C.C.D.
Me. 1831) (No. 10,126); The Rebecca, 20 F. Cas. 373 (D. Me. 1831) (No. 11,619); The
Young Mechanic, 30 F.Cas. 873 (C.C.D. Me. 1855) (No. 18,180) (maritime lien ownership).
See also GILMORE& BLACK,THELAWOFADMIRALTY115 (2d ed. 1975).
198. See Heidmar , Inc. v . Anomina Ravennate d i Armamento S.P.A. , 993 F. Supp .
990,993, 1998 AMC 47,50 (S.D. Tex. 1997) (citing Trinidad Foundry & Fabricating Ltd. v.
MN K.A.S. Cami ll a, 966 F.2d 613, 615 ,1992 AMC 2636, 2638 (11th Ci r. 1992»; Gar cia v .
MN Kubbar, 4 F.Supp. 2d 99,103,1998 AMC 893, 896 (N.D.N.Y. 1998) .
199. See 46 U.S.C. § 3 I326(b).
200. On the "personification" and "procedural" theories of maritime liens, see TETLEY,
M.L.C., supra not e I, at 53-55; see also Boston Bermuda Cruising, Ltd. v. MN Royal
Majesty, No. Civ. A. 97-1 I 276-GAO, 1997 WL 882597, *3,1998 AMC 1179, 1182 (D.
Mass. Sept. 10, 1997) ("The theoretical basis of the lien res ts on the f iction that the ship is the
actual wrongdoer and thus should be held liable for the alleged loss. ").
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three days of being required to do SO.191The caveat warrant then
enables him to recover costs and damages if the party at whose
instance the arrest warrant is issued is unable subsequently to satisfy
the Court that he should not be so liable.!" This procedure, however,
is a far less effective safeguard against unreasonable arrest than a
general and constitutionally entrenched principle of "due process."
however, It IS first necessary to note the particularities of U.S.
maritime law as regards maritime liens.
2. U.S. Maritime Liens and Lien Law
Because of the United States' civilian maritime law heritage, 196
maritime liens in the United States have long been regarded assubstantive rights, rather than as procedural remedies referred to in
jurisdiction statutes, as they are in the United Kingdom and most
British Commonwealth countries. Moreover, they have been
codified (except for a definition of the term "maritime lien" itself), in
the Commercial Instruments and Maritime Liens Act,197and its
predecessor statutes, which further confirms their substantive
character as established prior to codification.!" The statute also
provides rules on ranking. 199The "personification" of maritime liens,
whereby the vessel is conceived of as a person responsible for the
claim against it, contributes to this substantive understanding of liens
in the United States.?"
Secondly, there are no statutory rights in rem in U.S. marit imelaw. All maritime claims codified in the Act are secured by maritime
liens, which arise with the claims, follow the ship and (frequently
although not always) outrank ship mortgages. Claims for
"necessaries" (supplies, repairs, bunkers, etc.) , general average
14. Conclusion-Arrest InRem-Canada
While ftmdamentally similar to in rem proceedings under
English law, the action in rem and arrest in Canada do have certain
distinguishing features that result in important differences. Much
more distinct from English law than Canadian maritime law,
however, is the admiralty law of the United States. Itis of particular
importance to note that marit ime claims that provide rights of ship
arrest in Canada are not restricted, but form part of an open list.
C. The United States
1. Introduction
Because the United States broke away from the British Empire
at the end of the eighteenth century, it retained the Admiralty
attachment, as well as arrest in rem, as procedures for the
enforcement of marit ime claims. Today, the specific rules on both
procedures are found in the Supplemental Rules for Certain
Admiralty and Maritime Claims of the Federal Rules of Civil
Procedure, at Supplemental Rules B (attachment) 193nd C (arrestj.!"
In consequence, a maritime claimant in the United States may choose
to take: (1) an action in personam, (2) an action in personam with
attachment under Supplemental Rule B, or (3) an action in rem, with
arrest under Supplemental Rule C.195
Another hallmark of U.S.marit ime procedures is that both maritime attachment and arrest in
rem are subject to certain constitutional safeguards rooted in the "due
process" clauses of the Fifth and Fourteenth Amendments of the
United States Constitution. Before examining those matters,
191. See FED.Cr.R. , 1998, Rule 493(1), Form 493A.
192. See id. Rule 494(1).
193. See FED. R. CIV.P. Supp. Rule B. The attachment also exists under the "general
maritime law" of the U.S., even if the prerequisites of Rule "8" are not fulfilled. See
Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 773 F.2d
1528, 1531-33, 1986 AMC 1,4-9 (11th Cir . 1985) .
194. See FED.R. CIY.P.Supp. Rule C.
195. See TETLEY,M.L.C., supra note I, at 938.
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209. See TETLEY,INTERNATIONALONFLICT,supra note 74, at 540; TETLEY,M.L.C.,
supra note 1,at 874-75. Note, however , that when guaranteed under Title Xl of the Merchant
Mar ine Act, 1936, 46 U.~.c. App. §§ 1101, 1271-1295, foreign preferred-ship mor tgages
enjoy the same ranking as U.S. preferred-ship mortgages. See TETLEY,M.L.C., supra note I ,
at 514,874.
210. See 46 U.S.c. § 3 I326(b)(2); TETLEY,INTERNATIONALONFLICT,supra note 74,
at 540; TETLEY,M.L.C., supranote I , at 874-75.211. See 46 U.S.c. § 31342(a) (3). Where the necessaries claim relates to the supply
of container s, however, i t i s necess ary to prove that the containe rs were earmarked for or
delivered to specific ships and loaded aboard them. See TETLEY,M.L.C., supra note I , at610-12.
212. See TETLEY,M.L.C., supranote I , at 598-600, 604-06. This impor tant provision
dates f rom 1971, when itwas added to the former U.S. Mar it ime Liens Act.
213. See TETLEY,M.L.C., supranote I, at 566,570,572.
214. Seeid .at 590.215. See id. at 596-613 . The "executory con trac t doc trine, " pr ec luding l iens f or
unexecuted contracts, also applies in the United States to contract maritime liens for seamen's
wages. See id. at 298. It also applies to cargo damage. See id. a t722 . Fina lly, i t app li es to
breach of charterparty. See id. at 726-27; see also Navieros Inter-Americanos, S.A. v. MNVasilia Express , 120 F.3d 304, 313-14,1997 AMC 2845, 2856-57 (1st Cir . 1997) ; E.A.S.T.,
Inc. v. MN Alaia, 876 F.2d 1168, 1174, 1989 AMC 2024, 2032-33 (5th Cir . 1989) ; Boston
Bermuda Cru ising , Ltd. v . MN Royal Majesty, No. C iv . A. 97-11276-GAO, 1997 WL
882597, *3, 1998 AMC 1179, 1182-84 (D. Mass. Sept. 10, 1997) .
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contributions, towage, and marine insurance premiums, for example,
all give rise to maritime liens under U.S. law. Moreover, "necessaries"
is defined more widely in the United States than in the United
Kingdom or any Commonwealth country, so that maritime liens are
recognized for virtually any goods or services of benefit to the
navigation, management, business or purpose of the ship?"Third, marit ime liens in the United States are of two types, the
distinction relating to ranking. "Preferred maritime liens,,202include
wages of the crew and master.'" salvage (including contract
salvagejr'" damages arising from maritime torts;205wages of a
stevedore (in other words, a longshoreman) when employed directly
by the shipowner, master, manager or certain agentsr'" and contract
marit ime liens.?" which mise before preferred ship mortgages.i"
Preferred maritime liens outrank preferred ship mortgages. Other
(nonpreferred) maritime liens are contract maritime liens accruing
after the filing of preferred ship mortgages, which generally rank aftersuch mortgages.
Fourth, U.S. maritime lien law contains two chauvinistic ranking
rules, one of which subordinates foreign preferred ship mortgages that
have not been guaranteed under title Xl of the Merchant Marine Act,
1936, to U.S. preferred ship mortgages.i" The other rule subordinates
foreign preferred ship mortgages that have not been guaranteed under
tit le XI of the Merchant Marine Act, 1936, to liens for necessaries
supplied in the United States.i'"
Fifth, maritime liens for necessaries, if ordered by a party
authorized or presumed authorized to order necessaries for a vessel,
arise without the supplier having to prove that credit was given to the
ship."' A necessaries lien may therefore arise, even where a
prohibition of lien clause in the charterparty forbids the charterer from
incurring liens on the vessel, unless the vessel owner can prove that the
supplier had actual knowledge of the prohibition when the lien
arose.i" This is also significantly more liberal than English and
Canadian law, where the necessariesman continues to have a duty to
inquire, which, if not fulfilled, can cause him to lose his statutory right
in rem.i" The contract underlying the necessaries claim must,
however, be a "maritime" contract falling within U.S. admiralty
jurisdiction.i" The contract must also have been performed, at least inpart, in order to give rise tothe lien.215
201. See TETLEY,M.L.c., supra note 1 , a t 588-89, 592-94. The Uni ted States, fo r
example, was quick to recognize a maritime lien for container leasing. Seeid. at 609-13.202. See 46 U.S.c. §§ 31301(5), 31326(b)(I) (1997); see also Calogeras Marine, Inc.
v. MN Ocean Leader, Nos. Civ. A. 96-3614,96-3616,97-3626,96-3658, 1997 WL 658984,
*2-3,1998 AMC 872, 875 (E.D. La. Oct. 21,1997).
203. See 46 U.S.C. § 31301(5)(0) (including maintenance and cure claims).
204. Seeid. § 31301 (5)(F).
205. See id. § 31301(5)(8) ( including personal injury and death claims, property
damage claims and cargo tort liens).
206. Seeid. §§31301(5)(C),31341.207. See id. § 3 1301(4) (listing contract maritime liens secure claims for
"necess ar ies ," inc lud ing, f or example , suppl ie s, r epai rs, towage, the use of a dry dock or
marine railway, pilotage, stevedoring, cargo damage liens in contract, and contract charterers'
liens); TETLEY,M.L.C., supra note I , a t874-75. U.S. mar it ime law isa l so very gene rous inthe claims it accepts as "necessaries." See. e.g., Cummins Fin. , Inc. v . The Vessel Rose of
Rock Rive r, 771 F. Supp . 234, 236, 1994 AMC 1519 (AMC reporter summarizing case )
(N.D. I I I . 1991) (holding overland transportation of a vessel was held to be "necessary,"
giving r ise to a mar it ime lien for the transport costs). The United States, to its credit, a lso led
the wor ld in recognizing claims for container leasing as legit imate claims for necessaries
although such claiming gives rise to maritime liens only where the containers are earmarked
for or delivered to a ship and loaded aboard. See TETLEY,M.L.C., supra note I , at 609-13;
see also Silver Star Enters., Inc. v. Saramacca MN, 82 F.3d 666,668-69, 1996 AMC 1715,1717-19 (5th Cir. 1996).
208. See 46 U.S.C. §31301(5)(A). "Preferred ship mortgages" are primarily
mor tgages on U.S. documented vessels , duly executed and f iled under 46 U.S.c. §§ 31321-
31322, although foreign ship mor tgages and hypothecations, duly executed and regis tered
outside the Uni ted States, a lso qual if y as pre fer red sh ip mortgages. See 46 U.S.c.
§§ 313?1(6)(A)-(B), 31321-31322; see also Calogeras Mar ine, Inc. v. MN Ocean Leader,
Nos. CIV.A. 96-3614, 96-3616, 97-3626, 96-3658, 1997 WL 658984, *2, 1998 AMC 872,
874 (E.D. La Oct. 21,1997).
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223. See 28 U.S.c. ~ 1610(e) .
224. See Navieros Inter-Americanos v.MN Vasilia Express, 120 F.3d 304, 313,1997
AMC 2845, 2856 (1st C ir. 1997); Sembawang Shipyar d, Ltd. v. Cha rger , Inc. & MN
Charge r, 955 F.2d 983 , 987 , 1993 AMC 1341, 1345 (5 th Cir. 1992); Ra inbow Line , Inc. v .
MN Tequila, 480 F.2d 1024, 1028 , 1973 AMC 1431 , 1436 (2d Ci r. 1973); Gar cia v . MNKubbar,4 F . Supp . 2d 99, 103 , 1998 AMC 893, 896 (N.D.N.Y. 1998). Supplemental Rule
C( I ) a lso authorizes an ac tion in rem wheneve r a statute of the United States provides f or a
mar it ime action in rem. Rule C arres t is not available to enforce foreign statutory r ights in
rem, however. See Trinidad Foundry & Fabricating Ltd. v. MN K.A.S. Camilla , 962 F.2d
613,616-17,1992 AMC 2636, 2641 (11th Cir . 1992) ; Heidmar , Inc. v. Anomina Ravennate
di Armanento S.P .A., 993 F.Supp. 990, 994-95,1998 AMC 47, 52 (S.D. Tex. 1997) , vacated
on other grounds, 132 F.3d264,1998 AMC 982 (5th Cir . 1998) .
225. See Republic Na t' l Bank v. United States, 506 U.S. 80, 84, 88-89, 1993 AMC
2010,2013,2015-16 (1992).
226. See Alyeska Pipeline ServoCo. v.The Vessel Bay Ridge, 703 F.2d 381, 384,1983
AMC 2719, 2721 (9th Cir . 1983) .
227. See Supp. Rule C(3), supra note 4.
228. See Supp. Rule C(2), (3) , supra note 3; see also U.S. DEPARTMENTOF JUSTICE,
MANUALFORUNITEDSTATESMARSHALS'll6.3 (1986), reproduced in 1987 AMC 1041-67.
229. See Bay Casino, LLC. V. MN Roya l Empres s, No. 98 CV 2333 (SJ ), 1998 WL
566772, *2,1998 AMC 2226, 2233 (E.D.N.Y. Aug. 21, 1998) .
TULANE LA W REVIEW 1999] MARITIME LA W PROCEDURESVol. 73:1895
3. Binding the Ship for U.S. Marit ime Liens
U.S. law is more liberal than U.K. or Canadian law in defining
who may bind the vessel inrem for marit ime liens. This power isnot
restricted to owners and demise charterers. Rather, necessaries may
be procured for the vessel by the owner, the master, a person
entrusted with the management of the vessel at the port of supply, orby an officer or agent appointed by the owner, a (time or voyage)
charterer, an owner pro hac vice (in other words, a demise, or
bareboat, charterer) or an agreed buyer in possession ofthe vessel?"
U.S. maritime lien law, unlike Anglo-Canadian law, does not
distinguish between "legal" (registered) shipowners and ''beneficial''
owners of ships or their shares. "Owner" means registered owner ofthe vessel itself.
Nevertheless, arrest is permitted, even against a state-owned foreign
ship, to enforce a preferred ship mortgage.f"
5. Arrest In Rem Under Supplemental Rule C
The action in rem in the United States, under Supplemental
Rule C, permits the arrest of any ship or other marit ime property toenforce a maritime lien,224provided that the res is within the
territorial jurisdiction of the federal district court concerned at the
time the suit is filed or during the pendency of the action.?" Arrest
perfects the lien, obtains jurisdiction, and procures pre-judgment
security for the claim.i" Under Rule C, arrest is obtained by the
filing of a complaint, verified on oath or solemn affirmation,
accompanied by an affidavit. Judicial review is required before a
warrant of arrest may issue (Rule C(3», unless "exigent
circumstances" make the review "impracticable."?" The warrant of
arrest, accompanied by a summons to the defendant, are issued by
the clerk, on the order of the court, and the Marshal arrests the vessel
by posting the notice of arrest aboard the ship and serving a copy ofthe complaint and warrant upon the master or person in charge.f"
Any person claiming an interest in the property arrested is entitled to
a prompt post-arrest hearing, also compulsory under Rule E(4)(f).
The vessel may be sold to satisfy the lien claim, but if the sale
proceeds are insufficient to cover the claim, the owner is not liable
for the balance, because the action in rem is directed exclusivelyagainst the ship or other res that has been arrested.F'
4. Enforcement In Rem
Both the preferred ship mortgagee and the maritime lienor,
under U.S. law, have a lien enforceable by a civil action in rem.!"
Enforcement in rem is possible against both U.S. and foreign
ships. As in most other countries, however, no lien may be asserted in
the United States against a "public vessel.'?" Arrest or seizure of any
vessel owned, demise chartered, or operated by the U.S. government,
a'i well as the creation of any lien against a public vessel, are
prohibited by the Public Vessels Acr'" and the Suits in Admiralty
Act.220 Ships owned and operated by foreign states or their "agencies
or instrumentali ties" are also exempt from pre-judgment arrest or
seizure, under the Foreign Sovereign Immunities Act,221but only in
respect of their governmental, noncommercial activities.f"
216. See 46 U.S.c. § 31341(a); TETLEY,M.L.C., supra note I , at 600-03; see also
Integral Control Sys . Corp. v. Conso!. Edison Co., 990 F.Supp. 295,298, 1998 AMC 1905,1908-09 (S.D.N.Y. 1998).
217. See 46 U.S.C. § 31325(a), (b) (I ) ( regarding the preferred mor tgage lien) ; id.
§§ 31301(5), 31326(b)( I) ( regarding preferred mar it ime liens); id. § 31342(a)(IH2)
(regarding maritime liens for necessaries); see a lso Supp. Rule C(1)(a) , supra note 3
(permitting an action in rem to enforce any maritime lien).
218. See 46 U.S.c. §§ 30101(3),3 1342(b).
219. Id. app. § 788.
220. Id. §§ 742-752; see also TETLEY,M.L.C., supra note 1, at 597-98 943 1199-1205. ' ,
221. 28 U.S.c. §§ 1330, 1332(a) , 1391(f) , 1441(d) , 1602-1611 (1997).
222. See id. §§ 1604, 1605(a)(2), 1605(b); Coastal Cargo Co. v.MN Gustav Sule, 942
F. Supp . 1082, 1084-87, 1997 AMC 193, 196-201 (E.D. La 1996). See generally TETLEY,
M.L.C., supra note I , at943, 1172-80.
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1934 TULANE LA W REVIEW [Vol. 73:1895
235. See id. at 940.
236. See id. at 939.
237. See id. at 1047.
238. See id. at 939-40; see also Navieros Inter -Americanos v. MN Vasilia Express ,
120 F.3d 304 ,314-15 , 1997 AMC 2845, 2858 (1st C ir. 1997); Seawind Compania , SA v.
Cr escent Line , Inc. , 320 F.2d 580 , 582 , 1964 AMC 617, 620 (2d Ci r. 1963); Bay Casino,
1998 WL 566772 a t*5 , 1998AMC at 2238.
239 . The "minimum contac ts" cr it erion re flec ts the case law f lowing fr om the U.S.
Supreme Court 's decis ion in International Shoe Co. v. Washing/on, 326 U.S. 310 (1945).
Minimum contacts may arise f rom the forum's "general personal jur isdiction" (where the
defendant's general business contacts with the district are both "continuous and systematic")
o r f rom "speci fi c persona l jur isd ic tion" (wher e the re i s a causal connec tion between thedefendant's activities within the district and the plaintiff 's cause of action). See Helicopteros
Nac ionales de Colombia , S.A. v . Ha ll , 466 U.S. 408 , 414 !1n.8-9 (1984); Ocean Chern .
Transp., Inc. v. Cotton, 702 So. 2d 1272, 1998 AMC 38, 39 (Fla. Dist. Ct. App. 1997).
Under Rule 4(k)(2) of the Federal Rules Civil Procedure, minimum contacts, in respect of
claims arising under federal law ( including federal admiralty law), may also be found in the
defendant 's "nationwide" contacts with the United States, even where there are insuf ficient
con tact s to sa ti sfy the due process conce rns of the long- arm s ta tu te of any part icular U.S.
state. See World Tanker Carriers Corp. v. MN Ya Mawlaya, 99 F.3d 717, 723-24, 1997
AMC 307, 311-13 (5th Cir . 1996) ; Pacif ic Employers Ins . Co. v.MIT Iver Champion, Civ. A.
No. 91-0911, 1995 WL 295293, ·5 , 1995 AMC 2280, 2286-87 (E.D. La. May II, 1995).
240. See TETLEY,M.L.e., supra note I, a t 940 . The r elevan t t ime for determining i f
the defendant ispresent in the dis tr ict is the time the complaint is f iled. See Heidmar, Inc. v.
Anomina Ravennate di Armamento S.P .A., 132 F.3d 264, 267-68, 1998 AMC 982, 985-87
(5th Cir. 1998).241. See West of England Ship Owners Mut. Ins. Assn v . McAl li st er Bros. , 829 F.
Supp. 122, 124, 1993 AMC 2559, 2561-63 (E.D. Pa. 1993) .
1999] MARITIME LA W PROCEDURES
United States federal district courts also have taken a kind of
"constructive in rem" jurisdiction over shipwrecks, including wrecks
lying on the seabed in intemational waters, in order to protect the
rights of wreck salvors. This jurisdiction is defended on the somewhat
questionable ground that the district court has jurisdiction where
artifacts from the wreck are brought into the distr ict by the salvors.i"
as the credi ts or effects of the defendant in the hands of third parties.i"
Hence, i t is used to seize both tangible and intangible assets, including,
notably, bank accounts.i"
Because the Uni ted States has the attachment, si ster ship arrest in
rem is unnecessary. A sister vessel may be at tached as security for the
claim in the same way as any other goods or chattel s of the defendant,
ifit i s within the district and the defendant cannot be found there."?For the purposes of determining when a defendant cannot be
"found within the district" within the meaning of Supplemental Rule
B, a two-pronged test applies, based upon jur isdict ion and the service
of process.i" Attachment under Rule B is thus proper: (a) when the
defendant lacks "minimum contacts" with the district sufficient to
found in personam jurisdiction'" or (b) when he is not available for
service of process within the district, because he has no office or
authorized agent in the dist rict where or through whom legal process
may be served upon him.i" The plaintiff bears the burden of proving
that the defendant cannot be found within the district under Rule B,
and must make reasonable, but not necessarily exhaustive, efforts to
locate the defendant."!
6. Maritime Attachment Under Supplemental Rule B
Supplemental Rule B(l) permits a claimant having an in
personam claim against a defendant that is cognizable in admiralty to
attach the goods or chattels of the defendant, or the latter's credits or
effects in the hands of garnishees, within the district, when the
defendant cannot be found in the district. The attachment thus
permits the assertion of jurisdiction over a defendant's property
located within the district even though the court has no in personam
jurisdiction over the defendant.?" Derived from the general marit ime
law, with its civi lian antecedents, mari time attachment in the United
States resembles the satste conservatoire, or conservatoryattachment, of the civil law.232 The attachment ensures the
defendant's appearance and satisfaction in the event the suit
succeeds.i"
At tachment is not dependent, as is arrest in rem, on the existence
of a maritime l ien or preferred mortgage lien, but necessitates merely
an in personam claim against the defendant that falls within U.S.
admiralty jurisdiction.i" The attachment is not restr icted, as is arrest
in rem, to maritime property (ships, cargo, freight, bunkers), but may
be taken against any goods or chat tels of the defendant located within
the jurisdiction of the federal district court seized of the claim, as wel l
230. See Treasure Salvors , Inc. v. The Unidentif ied Wrecked & Abandoned Sailing
Vessel, 640 F.2d 560, 566,1981 AMC 1857, 1864(5th Cir . 1981) ; R.M.S. Titanic, Inc. v.The
Wrecked & Abandoned Vessel Believed to be the R.M.S. Titanic, 9 F.Supp. 2d 624, 632-34,
1998 AMC 2421, 2432-35 (E.D. Va. 1998); Marex Int'l, Inc. v.The Unidentified, Wrecked &
Abandoned Vessel, 952 F.Supp. 825, 828, 1998 AMC 484, 487-488 (S.D. Ga 1997); Moyer
v. The Wrecked & Abandoned Vessel Known asThe Andrea Dor ia , 836 F.Supp. 1099, 1104,
1994 AMC 1021, 1025-26 (D.NJ. 1993) .
231. See Transamer ica Leasing Inc. v. Frota Oceanica E. Amazonica, S .A., No. 97-
0556-CB-5 , 1997 WL 834554, *2, 1998 AMC 254, 256 (S.D. Ala. June 26, 1997) ; Western
Bulk Carriers (Aust . I. ), Pty. Ltd. v .P .S. In t' l, L td ., 762 F. Supp . 1302 , 1305, 1991 AMC
2828, 2831 (S.D. Ohio 1991) .
232. See TETLEY,M.L.e., supra note I , at 938-39.
233. See Swift & Co. Packers v . Compania Colombiana Del Caribe , S.A. , 339 U.S.
684 ,693 , 1950 AMC 1089 , 1096-97 (1950); Bay Casino, 1998 WL 566772, at *4, 1998
AMCat2237.
234. See TETLEY,M.L.e., supra note I , at939-40.
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1936 TULANE LA W REVIEW [Vol. 73:1895
247. See TETLEY,M.L.C., supra note I, a t l iB.
248. See id.
249. See 20th Century Fox Film Corp. v.MN Ship Agencies, Inc., 992 F.Supp. 1429,
1429 (M.D. Fla. 1997); Lion de Mer , S.A. v .MN Loretta 0, NO. Civ. L-98-921, 1998 WL
307077, at *2,1998 AMC 1410, 1412 (D. Md. Apr . 3, 1998) .
250. See Supp. Rule E(5)(b), supra note 3.
251. See id. Rule E(5)(c).
252. See id. Rule E(7).
253. See Techem Chern . Co . v . MfT Choyo Maru , 416 F. Supp. 960, 967-70, 972,
1976 AMC 1954, 1964-69, 1972 (D. Md. 1976) .
254. See 46 U.S.c. § 3I326(a) (1997).
255. See id. § 3 I326(b); see also TETLEY,M.L.C., supra note I , at 872-76.
1999] MARITIME LA W PROCEDURES
Because Rule B jurisdiction is in personam, if the defendant
appears in the action and the plaintiff's claim is allowed, the judgment
is enforceable against all of the defendant 's property, and not only
against the property seized as in the action in rem.r" If the defendant
fails to appear, however, the plaintiff's judgment is enforceable only
against the value ofthe property attached.r"
The attachment may be combined with the action in rem, the
advantage of such joinder being that if the value of the ship or other
arrested property is insufficient to satisfy the judgment, the balance of
the damages awarded may be recovered from the defendant found
personally liable on the claim.i" Joinder of arrest and attachment is
also useful if the claimant is uncertain whether he has a valid maritime
lien to assert in rem.
Procedurally, Supplemental Rule B requires the plaintiff to file a
detailed complaint, accompanied by an affidavit. The plaintiff must
show: (1) that he has an in personam claim against the defendant;
(2)that the defendant cannot be found within the district where the
action is commenced; (3) that property belonging to the defendant ispresent, or soon will be present, in the district; and (4) there is no
statutory or general maritime lawproscription to the attachment.i" An
ex parte application for issuance of the attachment must also be filed,
owing to the pre-seizure hearing required since 1985. The clerk of the
court, on the court's order, issues the writ of attachment to the Marshal,
as well as a summons addressed to the defendant, which the Marshal
serves with the writ.i" A prompt post-seizure hearing is also
mandatory under Rule E(4)(f).
7. Release of the Ship
The vessel may be released from arrest or attachment on the
fil ing of sufficient security, under Supplemental Rule E(5). The
security then replaces the res'" and normally precludes re-arrest for
the same claim?" In the United States, security may take the form of
a "special bond" (Rule E(5)(a)), which releases the res from arrest orattachment in the plaintiff's suit. The special bond is in an amount
determined by the parties or, failing such agreement, in an amount set
by the court, which is sufficient to cover the plaintiff's .claim "fairly
stated" together with interest and costs, but not exceedmg the lesser, . fh 1'249of the value of the property or twice the amount 0 t e Cairn.
Security may also take the form of a "general bond,'?" which
releases the res from arrest or attachment in respect of all actions that
may be brought in the district. Itmust be maintained ~t dou~le the
aggregate amount claimed in actions begun and pending. Finally,
security may consist of a "stipulation," which is usually a P & I club
letter of undertaking, or in some cases, a letter of credit or an escrow
deposit."!In addition, the claimant may be ordered to give countersecurity
in respect of counterclaims arising out of the same transaction, where
the defendant has given security in the claimant's action, unless the
court directs otherwise for "cause shown".252Countersecurity has also
been required of the plaintiff where the claim and the defendant 's
posted security greatly exceeded the amount of the actual loss.i"
If the claim succeeds, the res may be sold in ajudicial sale or the
judgment may be enforced against the substituted security. The
judicial sale terminates all claims existing on the date it occurs, and the
vessel is then sold free of all such claims.i" The proceeds are then
distributed according to theU.S. order of ranking.i"
242 . See Bay CaSino, 1998 WL 566772, at *2,1998 AMC at2232-33.
243. See TETLEY,M.L.C., supra note I, at 940 . For thi s reason, Rule Bjur isd ic tion i s
sometimes termed "quasi in rem" jurisdiction. See Navieros Inter-Americanos, 120 FJd at
315 , 1997 AMC at 2858; Limonium Mari time, S.A. v. Mizushima Mariner a, S.A. , 961 F.
Supp. 600, 605, 1997 AMC 2938,2944 (S.D.N.Y. 1997) .
244. See Supp. Rule C(1)(b), supra note 3; Navieros, 120 FJd at 314-15 ,1997 AMC
at 2858; Bay Casino, 1998WL 566772 , at *2, 1998 AMC at 2233; see also TETLEY,M.L.C.,
supra note I , at943. Where the conditions of arres t under Supplemental Rule C are not met,
the courts will sometimes allow the action to proceed as if i t had originally been insti tuted
with attachment under Rule B. See Heidmar, 132 F.3d at268, 1998 AMC at987-88.
245. See Transamer ica Leasing Inc. v. Frota Oceanica E. Amazonica, S .A., No. 97-
0556-CB-5, 1997 WL 834554, at *2, 1998 AMC 254, 256 (S.D. Ala. June 26, 1997); 7A
JAMESWM. MOORE,MOORE'SFEDERALPRACTICE11 B.03 (2d ed. 1996).
246. See Supp. Rule B(I), supra note 3; U.S. DEPARTMENTFJUSTICE,supra note 228,
at 1041-67.
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I1938 TULANE LA W REVIEW
263. See Supp. Rul~s B(I), C(I), E(4)(f), supra note 3. Pre-seizure and post-seizure
notices are now used even in respect of t he seizure of vessels at municipal docks. See
Higgins v.Por t ofNewpor t, 121 F.3d 1281, 1282-83, 1998 AMC 573, 575 (9th Cir . 1997) .
264. See Supp. Rule E(4)(F), supra note 3 . The cons ti tu tional ity of the ar res t and
attachment procedures in the maritime context was upheld in decisions such as PolarShipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9 th Cir. 1982) (Rule B mari time
attachment and garnishment procedures) ; Amstar Corp. v. SIS Alexandros I , 664 F.2d 1338
(5th Cir. 1981) (Rule C arrest procedure). But see Alyeska Pipeline Servo CO. V. Bay Ridge,
509 F. Supp . 1115, 1981 AMC 1086 (D. Alaska 1981) (Rule C arre st p rocedure) . Wi th the
1985 changes to Rules B, C, and E(4)(F) to provide for a prompt post- seizure hearing at the
request of any person claiming an interes t in the property seized, the issue has been resolved.
See 20th Century Fox Film Corp. v.MN Ship Agencies, Inc., 992 F.Supp. 1423, 1427, 1998
AMC 2514,2518 (M.D. Fla 1997) ; Newport News Shipbuilding & Dry Dock CO. V. S.S.
Independence, 872 F.Supp. 262, 265,1995 AMC 1644, 1646-48 (E.D. Va. 1994) .
265. See generally TETLEY,M.L.C., supra note I, at 945-48, 956-58.
266. See Commercial Instruments &Maritime Liens Act, 46 U.S.c. § 31325(d)(I)(A),
(B) , (C) (1997) . Such not ice i snot requ ired i f the per son en ti tl ed to i thas no t been found in
the United States after "search satisfactory to the court." Id. § 31325(d)(2). Failure to notify
does not affect the jur isdiction of the court to hear the action inrem, but the unnotif ied par ty
may sue for damages in the amount of his interes t inthe vessel terminated by the action. See
id. § 3 I325(d)(3); see also TETLEY,M.L.C., supra note I , at 946-47.
[Vol. 73:1895 1999] MARITIME LA W PROCEDURES
8. Wrongful Arrest orAttachment
United States courts have not hesitated to grant damages for
wrongful arrest or attachment in marit ime cases. As in England and
Canada, however, damages are only granted where the arrest or
attachment is found to have been motivated by bad faith, malice or
gross negligence. The analogy to malicious prosecution is frequentlydrawn.256Where the arrest or attachment is merely erroneous, costs
may sometimes be awarded, but not damages.i" U.S. courts may
also condemn a party in damages for demanding excessivesecurity.i"
arrest or attachment, more detailed complaints (especially in
attachment cases) and speedy post-seizure hearings.?" At the post-
seizure hearing, the onus is on the arresting or attaching party to showthat he had "probable cause" for arresting or attaching the vessel.i"
Supplemental Rule C(4) also requires public notice of the action in
rem and the arrest, in a newspaper, if the property has not been
released within ten days after execution ofprocess ..;165
Further safeguards were enacted in the Commercial Instruments
and Maritime Liens Act in 1988, requiring "actual notice" of a civil
action in rem that has been brought to enforce a preferred mortgage
lien or a maritime lien. Notice must be given, in the manner directed
by the federal district court, to: (1) the master or individual in charge
of the vessel; (2) any person who recorded a notice of claim of an
undischarged lien on the vessel under 46 U.S.C. § 31343(a) or (d); and
(3) a mortgagee of an undischarged mortgage file or recorded under 46U.S.c. § 31321?66
9. Constitutional Safeguards of Shipowners' Property Rights
The Fifth Amendment of the United States Constitution,
adopted in 1791, prohibits depriving any person of life, l iberty or
property without due process of law in federal matters?" The
Fourteenth Amendment applies a similar prohibition in respect of
state matters.i" As a result of certain United States Supreme Court
decisions on civil (nonmarit ime) matters, such as garnishments,rendered in the 1960s and 1970s, the door was opened to
constitutional challenges of both maritime attachment and arrest in
rem, on grounds of due process, particularly regarding the question
whether these maritime enforcement procedures should be required
to provide for prior notice and hearing of the defendant shipowners
directly affected by them."? Various contradictory decisions were
rendered by U.S. courts on the issue, and legal academics engaged in
a vigorous debate on the matter in the law reviews.i"
Finally, in 1985, Supplemental Rules B and C were amended to
provide for the procedural safeguards considered compatible with due
process. The new rules provided for judicial authorization prior to
10. Conclusion-Attachment and Arrest-America
In addition to recognizing a larger number of marit ime liens
than any other nation, U.S. maritime law is uniquely rich in affording
admiralty claimants both the attachment and arrest in rem as
mechanisms for asserting their claims and obtaining pre-judgment
256. See TETLEY,M.L.C., supra note I, at 1071-76 (citi ng Frontera Fruit CO. V.
Dowling, 91 F.2d 293, 297,1937 AMC 1259, 1266 (5th Cir . 1937».
257. See Zak Marine CO. V. Exportkhleb, Nos. 92-0860, 92-0870, 1993 WL 323131, at
*3, 1993 AMC 1794, 1796-97 (E.D. La. 1992) .
258. See Wertman V. Mar del Sud, Ltd., 1995 AMC 1130, 1136 (D. Alaska 1995) .
259. See U.S. CONST.arnend. V.
260. See id. arnend. XlV.
261. See generally Shaffer V. Heitner , 433 U.S. 186 (1977) (boldingjur isdiction over
parties based on statutory presence violative of due process); Fuentes V. Shevin, 407 U.S. 67
(1972) (bolding Florida and Pennsylvania replevin provisions invalid under the fourteenth
Amendment); Sniadach v. Farnily Fin. Corp. , 395 U.S. 337 (1969) (bolding Wisconsin's
prejudgment garnishment of wages procedure violated due process); s ee a lso TETLEY,
M.L.C., supra note I, at 952-54.
262. See TETLEY,M.L.C., supra note I, at 954-56 nn.83-84.
1939
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1940 TULANE LA W REVIEW [Vol. 73:1895
security,"? The United States has also led the world in developing
and implementing effective constitutional protections of the private
property rights of shipowners with respect to both attachment and
arrest. In that domain in particular, U.S. maritime law can well serve
as a model for other nations.
Effectively, because of the broad interpretation of the
Commercial Instruments and Maritime Liens Act and, in particular, of
"necessaries," the claims permitting ship arrest and attachment in the
United States are contained in an "open list."
V. TH E SAISIE CONSERVATOIRE-FRANCE
A. Introduction
Civilian countries such as France never experienced the conflict
between admiralty and common-law courts that plagued the English
judiciary for centuries. Pre-judgment seizure of any property of a
debtor therefore was never "lost ," as it supposedly was in England.
Nor was there ever in civilian jurisdictions a separate in rem
proceeding, with the ship a notional defendant. Rather, c ivilian
countries to this day have but a single action, the action in personam,
which may, however, be combined with a saisie conservatoire, or
conservatory attachment, in order to give the claimant security for his
claim before judgment. In addition, France at least appears to have
been untroubled by the risk of marit ime attachment without prior
notice or hearing infringing on "due process" rights of defendants./"
B. Attachment of Ships and Other Assets
Ship attachment in France, as provided by Law No. 67-5 of
January 3, 1967,169 is governed by special regulatory provisions. The
procedures are found in Decree No. 67-967 of October 27, 1967,170as amended by Decree No. 71-161 of February 24, 1971.271
Procedures regulating the attachment of cargo.?" freight.i" and other
267. See generally Keith B. Letourneau, A Practical Guide toAdmiralty Supplemental
Rules A Through E (with Special Emphasis on the Southern Dis tr ic t of Texas), 22 TuL. MAR.
LJ. 417 (explaining arrest and attachment in U.S. maritime law).
268. See TETLEY,M.L.C., supra note I,at 962-63.
269 . Law No. 67-5 of J an . 3 , 1967 , J.O. , J an . 4 , 1967 , at 106 .
270. See Decree No. 67-967 ofOct. 27,1967, J .O., Nov. 4,1967, p. 10836.
271. See Decree No. 71-161 of Feb . 24, 1971, i .o., Mar. 2 , 1971, p . 2064. Re levan t
pr ovi sions of Dec ree No. 67-967, a s amended by Decree No. 71-161, are reproduced in
TETLEY,M.L.C., supra note I,at 1483-86.
272 . See , e.g. , Courde Cassation, Casso Com., Oct. 5,1993,1993 D.M.F., 722, note R.
Le Brun; C .A. Rouen , Dec. 23, 1992 , 1993 D.M.F. , 645 , note Y. Tassel; TETLEY,ML.C.,
supra note I,at 1483-86.
1999] MARITIME LAW PROCEDURES 1941
assets, such as bank accounts and insurance proceeds.i" on the other
hand, are subject to the general law of France on civil procedures of
execution, found in Law No. 91-650 of July 9,1991,275completed by
Decree No. 92-755 of July 31, 1992.276 In 1998, the Cour de
Cassation, reversing some previous case law of various courts of
appeal, held that, because bunkers were a "component of the ship"("element du navire"), their attachment, like that of the vessel itself,
was to be governed by maritime law (specifically, the 1967 Decree),
rather than by the general legislation of 1991/1992 on execution on
movable property?"
C. Attachment of Ships-Two Regimes
There are two regimes of ship attachment in France: the
"international" regime, based on the Arrest Convention 1952 to
which France is party?" and the "domestic," or "residuary," regime
governed by the 1967/1971 Decrees. The international regime
governs the attachment of seagoing ships'?' flying the flag of a state
that is party to the Arrest Convention 1952, as required by article8(1) of the Convention. The domestic regime applies to the
attachment of French vessels in French ports by French residents.i"
Under article 8(2) of the Arrest Convention 1952, where the ship
attached is not a French vessel and does not fly the flag of any other
state party to the Convention, it may be attached for a maritime claim
recognized under artic le 1(1) of the Convention or for any claim
permitting attachment under the law of the contracting state concerned
273. See Courde Cassation, CassoCom., Jan. 13, 1998, 1998 D.M.F. 823.
274. See, e.g., c.A. Par is , Oct. 21,1994,1995 D.M.F. 833, note P.Bonassies ; Trib. de
commerce Par is , Sept. 13,1994, 1995 D.M.F. 548, note Y. Tassel, cornmentaire P.Bonassies,1998 D.M.F., 119-120; TETLEY,M.L.C., supra note I,at 964.
275. See Law No. 91-650 of July 9, 1991, i.o., July 14, 1991, p. 9228.
276. See Decree No. 92-755 of July 31,1992, J.O:, Aug. 5,1992, p. 10530.
277. See Cour de Cassation, Casso Com., Jan. 13, 1998, 1998 D.M.F. 823; see also M.
Ndende, La problemat ique de la sa is ie des sautes: La res taura tion de l 'autori te du Dro it
maritime, 1998 D.M.F. 77 I. As a result of this decis ion, bunker attachment in France must
be au thorized by the pre sident o f the tribunal de commerce, ra the r than by a regu la r civi l
judge.
278. France ratif ied the Arres t Convention 1952, supra note 8, on May 25, 1957 and
published itby Decree No. 58-14 of January 4, 1958.
279 . The term "a rre st " i sused asa t ranslat ion of the French term "saisie" in the Arrest
Convention 1952, supra note 8, indicating that the Convention applies toboth arres t in rem in
common-law jurisdictions and conservatory attachment in civil-law jurisdictions. Moreover,
the French t it le o f the Conven tion i s: "Convention Internationale Pour l 'unification de
Certaines Regles sur laSaisie Conservatoire des Navires de Mer."
280. See Arrest Convention 1952, supra note 8, art . 8(4); see also MARTINEREMOND-GOUILLOUD,DROITMARITIME 288 (2d ed. 1993).
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1942 TULANE LA WREVIEW [Vol. 73:1895
287. See Law No. 67-5 of Jan. 3, 1967, lO., Jan. 4, 1967, p. 106, art. 31; TETLEY,
M.L.C., supra note I,at 1479-83 (identifying relevant provisions of Law No. 67-5); see also
id. at 902-05 (ranking maritime liens in France).
288. See Arrest Convention 1952, supra note 8, art. 1(1).
289. See, e.g., C.A. Montpe ll ie r, J uly 31, 1996, 1997 D.M.F. 31, note A. Arnaud,
commentaire P.Bonassies , 1997 D.M.F. Hors Ser ie No.2, 1998, No. 67; c.A. Aix , May 15,
1996,1997 D.M.F. 598, note Y. Tassel.
290. See Arrest Convention 1952, supra note 8, art. 3(1); TETLEY,M.L.C., supra note
I, at 966 n. 131;REMOND-GOUILLOUD,supra note 280, ~~ 291-292, 293(b); VIALARD,supra
note 282, ~ 371.
291. See Arrest Convention 1952, supra note 8, art. 3(1), (4).
1999] MARITIME LA WPROCEDURES
(France, in this casej.?" France's domestic regime may be applied in
this case, because article 8(3) permits a state party like France to
exclude from the benefit s of the Convention any noncont racting state
or any person who, at the time of the arrest or attachment, has no
habitual residence or principal place of business in a contracting
state.
282
In consequence, neither regime restr icts attachment to claims
giving rise to a maritime lien (a "privilege maritime"). France
nevertheless recognizes marit ime l iens on ships for: (1) law costs and
costs of judicial sale; (2) tonnage and port charges, pilotage, and costs
of preservation of the vessel since its entry into the last port (the port
where the attachment occurs); (3) claims resulting from the contract of
employment of the master, crew, and other persons engaged for on-
board work; (4) remuneration for salvage and assistance and general
average contributions; (5) damages for collis ions and other accidents
of navigation, damages to port installations or waterways, damages for
bodi ly injury to passengers and crew and compensat ion for loss of, or
damage to cargo or baggage; (6) claims arising from contracts
concluded or operations carr ied out by the master away from the ship's
home port, under his legal powers, for the real needs of preservation of
the ship or the continuation of the voyage (including both what are
deemed "master 's disbursements" and "necessaries" in common-law
jurisdictionsj.r" Most of these maritime lien claims, although
di fferently worded in some cases, are included, as "maritime claims"under article 1(1) of the Arrest Convention 1952.288 They would
therefore permit attachment under either regime in France. The
Convention is not to be construed, however, as creating marit ime liens
not recognized under the law of the court seized of the case or under
the Marit ime Liens and Mortgages Convention 1926.289
D. Claims Permitting Maritime Attachment
Ships under the international regime may be attached in France
only for "maritime claims" listed in article 1(1) of the Arrest
Convention 1952, that "closed list" being interpreted restr ic tively.'"
The judge merely verifies that the claim alleged falls into one of the
categories on the list.i"Under France's residuary regime, ships may be at tached for any
claim whatsoever, whether maritime or not, provided that the claim
appears "founded in principle.v'" The judge must, however, be
sati sfied that the claim is "certain and serious" before authorizing the
vessel's attachment.i"
281. See, e.g., C.A. Aix, May 22, 1997, 1998 D.M.F. 692, notes P.Delebecque & c.Bourayne.
282. See REMOND-GOUILLOUD,upra note 280, ~ 288, 294; RENE RomERE &
EMMANUELDUPONTAVICE,DROITMARITIME~ 178 (12th ed. 1997); TETLEY,M.L.C., supra
note I,at 964-65; ANTOINEVIALARD,DROITMARITIME 366 (1997).283. See REMOND-GOUILLOUD,upra note 280, ~ 289; RomERE & DUPONTAVICE,
supra note 282, ~ 178; TETLEY,M.L.C., supra note I,at 965; VIALARD,supra note 282,
~ 367. See, e.g., C.A. Aix , May 22, 1997, 1998 D.M.F. , 692 , notes P. Delebecque & c.Bourayne; C.A. Douai, Sept. 12, 1996, 1997 D.M.F. 36, note Gilles Gautier , commentaire P.
Bonassies , DMF Hors Ser ie No.2, 1998, No. 62. It has been held that attachment under the
Convention ispossible , even where the claim isa "maritime claim" only in part. See Cour de
Cassation, Casso Com. Feb. 3,1998,1998 D.M.F 260, note P.Bonassies.
284. See, e.g., CA. Aix , Dec. 6 ,1995,1997 D.M.F. 591 , note Y. Tassel, commentaireP. Bonass ie s, DMF Hors Se rie No.2 , 1998, No. 63; Cour de Cassa tion , Cas so Com., Feb . 3,
1998, 1998 D.M.F. 255. See also RomERE & DUPONTAVICE,upra note 282, ~ 178 n.6;
TETLEY,M.L.C., supra note I,a t 965-66. Some French judges, however, seem inten t on
determining whether the claim is in fact a "maritime claim." See, e.g., C.A. Aix , Nov. 14,
1996, 1997 D.M.F. 606, note Y . Tassel, commentaire P.Bonassies.
285. See Decree No. 67-967 of Oct. 27, 1967, J.O., Nov. 4, 1967, p. 10836, as
amended by Decr ee No. 71-161 , Feb . 24,1971 , J.O. , Mar. 2 , 1971, p. 2064, a rt . 29; see also
REMOND-GOUILLOUD,upra note 280 , ~ 289; RomERE & DUPONTAVICE,upra note 282,
~~ 176, 178. This "founded in principle" criterion has been assimilated to the concept of the
"good arguable case" in English law. See Y. Tassel, Note, c.A. Rouen, 1996 D.M.F. 377,
380. It isconsis tent with the basic principle ofcivil law that all of the debtor's property is the
pledge of his creditors. See CODECIVIL[C o CIV.]art. 2092 (Fr.); VIALARD,supra note 282,
~ 367.286. See, e.g., Cour de Cassation, Casso Com., Mar . 19, 1996, DMF 1996,503,504;
C.A. Aix, Sept. 12,1996,1997 D.M.F. 36, note G. Gautier , commentaire P.Bonassies , DMF
HOTSSerie No.2, 1998, no. 64; REMOND-GOUILLOUD,upra note 280, ~ 289.
E. Attachment of Ships andSister Ships
The ship concerned by the claim may be attached under both
the internal regime and article 3(1) and (4) of the Convention. Both
regimes also permit sister ship attachment where the owner is liable
on the claim.?" Where a charterer is liable on the claim, article 3(4)
of the Convention permits the attachment of either the "offending
ship" or another ship owned by the charterer. Only one ship may be
seized."! Under the domestic regime, there is authority for the view
1943
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1944 TULANE LA W REVIEW [Vol. 73:1895
that only a ship owned by the charterer may be seized, although a
privilege maritime (maritime lien) will enable a chartered ship to be
attached.?"
French courts have applied the theorie de l'apparence ( theory of
appearance) to "lift the corporate veil," so as to determine true
ownership, where a "community of interests" has been found betweenthe legal entities concerned, where they lack genuine operational
autonomy and particularly where the reality of related shipowners and
ships has been concealed behind the mask of "one-ship companies.t'""
The Cour de Cassation, France's Supreme Court, however, has more
recent ly taken a more conservative position on the applicat ion of this
theory, stressing the importance of respecting the integrity of corporate
personality.i" Increasingly, the corporate veil will only be lifted or
pierced where there is clear evidence that the corporate facade is being
manipulated as part of a sham in order to perpetrate a fraud on
creditors.?"
F . Attachment Procedure and JurisdictionUnder both the domestic and the international regimes in
France, the legal procedures for the attachment of ships are those of
articles 29 and 30 of Decree No. 67-967 as amended by Decree No.
71_161.296 Application for the saisie conservatoire is made by
motion to the president of the Tribunal de commerce or, if he is
unavailable, to a judge of the Cour d'instance (a lower court). The
order of seizure is served on the debtor by a bailiff, generally in the
292. See TETLEY,M.L.e., supra note 1,at 966-67.
293. See id. a t966 n.131, 1046; see also REMOND-GOUILLOUD,upra note 280, 'I] 292;
VIALARD,supra note 282, '1]'1]371,372; Antoine Via1ard, Les Societes Ecrans: Apparence ou
Transparence?, 503 D.M.F. 179 (1991); Jean-Serge Rohart, La saisie conservatoire desnavires apparentes, 1994 D.M.F. 339.
294 . Cou r de Cassa ti on , Casso Com., 1996 D .M.F ., Mar . 19, 1996, 1996 D .M.F . 503 ,
commentaire A. Vialard, Personnalite Morale des Societes D 'armement et Apparentement
Abusif des Navires Saisis, 1996 D .M.F . 467 ; P .Bona ss ies , DMF Hors Ser ie No.1 , 1997, no
31; Cour de Cass ation, Cas so Com., Jan. 21, 1997, 1997 D.M.F. 612, note A. Vialard,
commen tai re P .Bonassi es , DMF Hors Ser ie No.2, 1998, No . 65 ; C .A . A ix, May 22 , 1997 ,
1998 D.M.F. 692, notes, P.Delebecque & e. Bourayne.
295. See, e.g., C.A. Rennes, Jan. 15, 1997, 1997 D.M.F. 584, note I. Corbier,
commentaire P.Bonassies, DMF Hors Serie No.2, 1998, No. 65.
296. French domestic law governs a ttachment procedure under the Arrest Convent ion
1952, because art ic le 6 , second paragraph, of the Convent ion makes the rules ofprocedure
relat ing to the arrest of a ship, the obtaining ofjudicial authori ty to arrest and a ll mat te rs of
procedure subject to the law of the contrac ting sta te where the arrest was made or applied for .
For a comprehensive article on maritime attachment procedures in France, see Helene Cadiet
& Guillaume Brajeux, La Procedure de saisie conservatoire de navires entre droit commun et
regles speciales, 1998 D.M.F. 995.
1999] MARITIME LAWPROCEDURES 1945
presence of the master of the vessel. The bailiff appoints a
guardian."? The ship may be attached even where it is preparing to
set sail.i" Attachment prohibits the ship from leaving port.i" but
does not otherwise affect the rights of the owner. '?"
As a result of a 1995 decision of the Cour de Cassationr" it is
now uncertain whether attachment in France in itself suffices to foundthe international jurisdiction of the French court to adjudicate the
claim. The decision reversed what had been thought of as a settled
rule supporting the international jurisdiction of the forum arresti. The
Cour de Cassation now requires some connecting factor recognized
by French rules of private international law, apart from the place of
seizure, in order to confer jurisdiction over the merits of the claim.i'"
France, in common with other countries, does not permit the
attachment of ships belonging to the French Government, because
French law absolutely prohibits all measures of execution and all
forms of seizure against any property of "public persons.,,303
Similarly, France subscribes to the principle of restrictive foreign
sovereign immunity enshrined in the Immunity of State-Owned ShipsConvention 1926 and its Addit ional Protocol 1934/04 under which
irnmunity from seizure, arrest and detention of foreign state-owned
and state-operated vessels is recognized, but only in respect of such
vessels engaged exclusively in governmental, noncommercial service
297. See VIALARD,supra note 283, '1]374.
298. REMOND-GOUILLOUD,upra note 280, 'I] 297 bis; RODIERE& DUPONTAVICE,
supra note 282, '1]'1]176,180; TETLEY,M.L.e., supra note 1 , a t 969; VIALARD,supra note283, '1]375.
299. See Decr ee Np. 67-967 of Oct. 27, 1967, 10., Nov. 4, 1967, p. 10836. In
pract ice, the port service , on being not if ied of the a ttachment, refuses outwards c learance to
the vessel.
300. See id.; see also REMOND-GOUILLOuD,upra note 280, '1]297 bis; RODIERE&
DUPONTAVICE,upra note 282, '1]177; TETLEY,M.e.L., supra note I , a t969; VIALARD,supranote 283, '1]375.
301. See Cour de Cassation, Casso Corn., Jan. 17, 1995, 1996 D.M.F. 815,
commentaires Remond-Gouilloud, Forum Arresti: Le Jusant, DMF 1996, 787 & P.
Bonassi es , DMF 1997 , Hors Ser ie No . I , 1997 ,No . 36; see also TETLEY,M.L.e., supra note
l,at968.
302. But see Cou r de Cassa ti on , Casso com. , Feb . I I, 1997 , 1997 D.M.F. 616, not e P .
Bonassies & commentaire , DMF Hors Serie No.2, 1998, No. 72 (upholding the jurisdict ion
of the French forum arresti i n r espec t o f mat te rs r el at ing , not t o the me ri ts o f t he di sput e
itself, but rather to the execution of a foreign judgment that had been recognized and
rendered executory in France).
303. See TETLEY,M.L.C ., supra not e I , a t 1205-10 ; see also REMOND-GOUILLOUD,
supra note 280, '1]'1]76-77;RODIERE& DUPONTAVICE,upra note 282, '1]'1]248-253,462.
304. The Interna tional Convent ion for the Unifica tion of Certa in Rules concerning the
Immun ity o f S ta te-owned Ships , adop ted at Bru ssel s, Apr il 10 , 1926, and the Add it ional
Protocol, adopted a tBrusse ls on May 24, 1934. France rat if ied both instruments on July 27,
1955.
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1946 TULANE LA WREVIEW [Vol. 73:1895
when the cause of action arises.?" Because many vessels today that in
fact belong to states are formally owned and operated by state agencies
or state corporations, French courts, applying the "theorie de
I 'emanation" (theory of emanation), have at times denied immunity
where foreign governments, operating through such allegedly
"independent" bodies, have attempted to avoid their debts.?" As with
the theorie de I 'apparence in sister ship attachment, however, a more
conservative approach to the "emanation" doctrine is now being taken
by Frenchjudges and legal scholars.?"
G. Releasefrom Attachment and VoyageAuthorization
French law provides two modes of lifting the saiste
conservatoire. The shipowner may seek release of the ship, by
motion to the Tribunal de grande instance. If release is granted, the
seizing creditor loses all preference for his claim and wil l normally
be condemned to pay damages occasioned by the seizure, notably,
the costs of the release.?" Because release procedures in France tend
to be prot racted, however, shipowners often prefer the second optionfor lifting the saisie, which is a motion to the president of the
Tribunal de grande instance seeking an order authorizing the vessel
to leave the port of attachment for one or more determined voyages,
in return for the giving of adequate security by the shipowner.f" The
president must set a deadline for the vessel's return to the port of
seizure. Should the deadline be missed, the creditors are entitled to
the security. The security generally takes the form of a letter of
undertaking from the shipowner's P & I club, although a bank
guarantee may also be given. The security is regarded as taking the
place of the vessel."?
305. Immuni ty of St ate-owned Shi ps Convention 1926 art. 3; see al so TETLEY,
M.L.C., supra note I , at970-71.
306. See TETLEY,M.L.C., supra note I, at 1166.
307. See, e.g., C.A. Rauen , 1985, 1986 D.M.F. 349 ; see also Remond-Gouilloud,
L i :mana tion Mari time ' au Comment Fa ir e Ceder L 'ecran de la Per sonnal it e Mora le d 'un
Armement d'Etat, 1986 D.M.F. 333; Daniel Guyot, Immunite des Navires d'Etat: Les Theses
en Presence 1987 D.M.F. 405; M. Remond-Gouilloud, L'emanation Marit ime: Pour Sortir
de la Clandestinite 1992 D.M.F. 451; VIALARD,supra note 283, ~ 373; TETLEY,M.L.C.,
supra note I, a t 1166 n .25; see also Cour de Cassation, Casso Com., Jan. 4,1995, Bulletin
civil I ,no. 6; Cour de Cassation, Cass. Com., Oct. I , 1997, note P.Delebecque.
308. TETLEY,M.L.C., supra note I , at969-70.
309. See Decr ee No. 67-967 of Oct . 27,1967, J.O. , Nov . 4 ,1967, p . 10836; see also
REMOND-GOUILLOUD,upra note 280, ~ 300; RODIERE& DUPONTAVICE,upra note 282,
~ 177 n.3; VIALARD,supra note 283, ~ 377.
310. See Decree No. 67-967; TETLEY,M.L.C., supra note I, at 970.
1999] MARITIME LA WPROCEDURES 1947
As in other countries, judicial sale of the ship remains the fmal
mode of exercise of marit ime enforcement jurisdiction. I t is governed
in France by provisions of the Decree of 1967 on "saisie-execution"
(attachment in execution of the finaljudgment)."!
H WrongfulAttachment
Article 6, first paragraph, of the Arrest Convention 1952 leaves
to national law of the contracting state where the arrest was made or
applied for the question of liability for damages for arrest of ships.
There is no specif ic maritime legislat ion on this matter in France.?"
Nevertheless, jurisprudence shows that at least some French courts
are prepared to grant damages for the wrongful seizure of ships,
where it appears to have been motivated by malice or gross
negligence.l" Where the attachment is merely unfounded in law (in
other words, erroneous, as opposed to malicious), the seizing creditor
has been held liable to compensate the shipowner for the expenses of
maintaining the vessel during its period of attachment.?"
I Protection ofPrivate Property Rights ofShipowners
The Declaration of the Rights of Man and of the Citizen, 1789,
at article 2, declares the right to liberty, property, security and
resistance to oppression. Article 17 declares that property is an
inviolable and sacred right, of which no one may be deprived except
when public necessity, lawfully established, so requires, and on
condition of a 'just and prior indemnity." These lofty principles
were invoked successfully to challenge the attempted nationalization
of French banks in 1981.315 They have yet to be raised to contest the
constitutional validity of a ship attachment in France, however.
Nevertheless, the possibility of such a challenge cannot be
discounted.
J. Conclusion-France
Although France has no writ in rem, its maritime enforcement
procedures are clear and unified because France never permit ted the
311. See Decree No. 67-967, arts. 31-58.
312. See VIALARD,supra note 283, ~ 378.
313. See REMOND-GOUILLOUD,upra note 280, at ~ 300; TETLEY,M.L.C., supra note
1, at 1077-79.
314. See Cour de Cassation, Casso Com., Mar. 3, 1998, 1998 D.M.F. 699, note R.
Rezenthel.
315. See TETLEY,M.L.C., supra note 1,at 972-73.
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1948 TULANE LAW REVIEW [Vol. 73:1895 1999] MARITIME LAW PROCEDURES 1949
attachment and the action in rem to separate. The historic saisie
conservatoire, inheri ted from the general civil ian lex maritima of
Continental Europe, cont inues to flourish in civilian jurisdictions,
and in France has been adapted to the demands of international
shipping in the twentieth century. It provides ~ ~ogical an~ effecti_ve
procedural tool for providing modem mantIm~ creditors with
prejudgment security against the main asset .on .which they r~~y, the
ship. It remains to be hoped that France, with It~ noble tradition ?f
concern for fundamental rights and freedoms, will further refine Its
maritime legislation, as the United States has done, so as to provide
additional, constitutionally-grounded protection to shipowners' rights
of property in their vessels. .
It is noteworthy that, as a party to the Arrest Convention 1952,
France operates under a "closed list" of marit ime claims.
The power of the High Court under subsection (I) to grant an
interlocutory injunction restraining a party to any proceedings from
removing from the jurisdiction of the High Court, or otherwise dealing
with, assets located within that jurisdiction shall be exercisable in cases
where that party is, as well as in cases where he is not , domiciled,
resident or present within that jurisdiction.F"
In 1994, a "Practice Direction" was issued governing variousdetails of Mareva practice in the United Kingdom."!
VI. THEMAREVA INJUNCTION
A. Introduction
The reputed loss of the Admiralty attachment in England has
been partially mitigated by the inventi~n ofth~,"Mareva inj~ction."
Considered by its creator, Lord Denmng, as the greatest piece of
judicial law reform in my time,'?" the Mareva injunction draws its
name from the second decision granting the remedy that Lord
Denning rendered while Master of the Rolls in the English Court of
Appeal, Mareva Compania Naviera S.A. v... Inte,:nat~onalBulkcarriers S.A.317 The purpose of the Mareva injunction IS to
prohibit the defendant, before or during a suit, from re~~vil_lg .assets
(real or personal, movable or immovable) from the jUTIsdictI?n or
from dealing with them.l" where it appears to the court that WIthout
such an order the plaintiff's recovery on his claim will bejeopardized."? .. . .
Explicit authority for the issuance of Mareva Injunctions ISnow
conferred on the High Court of Justice in the United Kingdom by
section 37(3) of the Supreme Court Act, 1981, which provides:
B. ConditionsJor theIssuance oj a Mareva Injunction
The main conditions for the granting of a Mareva injunction
were determined very early on in some of the first Mareva decisions
in England, most of which were marit ime law judgments.f" InThird
Chandris Shipping Corp. v . Unimarine S.A., Lord Denning M.R. set
out five guidelines to ensure that the Mareva would not be granted
indiscriminately.'" The guidelines related to the contents of the
affidavit of the applicant for the injunction. They require: (1) full
and frank disclosure of all matters known to the applicant that arematerial for the judge to know; (2) disclosure of particulars of the
applicant's claim, including its grounds and amount, and a fair
statement of the points made against it by the defendant; (3) the
applicant's grounds for believing that the defendants have assets in
the jurisdict ion; (4) the appl icant' s grounds for bel ieving that there is
a risk of the assets being removed before the judgment or arbitral
award is satisfied; (5) the giving by the applicant of an undertaking in
damages to indemnify the defendant for his losses should the claim
fail or the injunction prove to be unjustified.l" A sixth condition or
guideline emerges from London's central position as a place for
foreigners to l itigate or arbitrate disputes efficiently before judges of
unquestioned learning and impartiality. As described in NinemiaMaritime Corp. v . Trave SchifJahrtsgesellschafl & Co. (TheNiedersachsenii" the plaintiff must show some evidence of a
320 . The Supreme Court Act , 1981, ch. 54, § 37(3) (Eng .).
321. See The Practice Direction of July 28, 1994, reproduced in [1994] 4 All E .R. 52.
Note that a new standard form of Mareva injunction was issued by t he High Court in its
Practice Direction of October 28, 1996. See [1996]1 w.L.R. 1552 (1997).
322. See. e.g., Third Chandris Shipping Corp. v. Unimarine S.A. (The Genie), [1979]
2 Lloyd's Rep. 184, 189;The Assios, [1979]1 Lloyd's Rep. 331, 333-34 (C.A.); The Siskina,
[1978]1 Lloyd's Rep. 1,4-7 (H.L. 1997) ; Rasu Mar it ima S.A. v.Per tamina, [1977]2 Lloyd's
Rep. 397, 402-03 (1977).
323 . [1979]2 L loyd' s Rep . a t 184 .
324. See TETLEY, M.L.C., supra note I , at987-88.
325 . [1983]2 L loyd' s Rep . 600 , 606-07.
3I6. [d. (c it at ion omi tt ed). Note, however, tha t c redi t f or the Mareva injunct ion
should also go to Geoff rey Brice, Q.c. , and M.N. Howard , who prepared, int roduced and
pled the motion for the injunction.317 . [1975] 2 Lloyd' s Rep. 509 , [ 1980]1 All E.R. 213 Note (C.A. ). The fi .rs tMar eva
injunction (as itwas later called) was issued in Nippon Yusen Kaisha v . Karageorgis, [1975]2
Lloyd's Rep. 137 (Lord Denning, M.R).318. See AlS DIS Svendborg & Another Eston ian Shipping Co. v . Wansa , [1996] 2
Lloyd's Rep. 559, 575-76.319. See TETLEY, M.L.C., supra note I, at 983-84, 988-89, 990-91.
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1950 TILANE LAW REVIEW [Vol. 73:1895
serious risk, not mere I that the assets in the jurisdiction will be
removed or dissipated, :iut that, without the injunction, there will be
no means in or outside the jurisdiction available to enforce the
judgment when rendered.?"
The basic criteria governing the grant of Ma r eva injunctions in
the United Kingdom today requi re the plaintiff to show: (1) a cause ofaction against the defendant in the jurisdiction at the time of the
appl ication.f" (2) a "good arguable case,'?" (3) that the defendant has
assets within the jurisdiction (tangible, nontangible, real or personal,
including, inter alia, ships, cargoes, bunkers, proceeds of sale, bank
accounts, etc.),329(4) that the defendant is likely to frustrate judgment
by removing his assets from the jurisdiction or dissipating them.l" and
(5) the balance of convenience favouring issue of the injunction."!
C. "Worldwide" Mareva Injunctions
The Mareva injunction was applied originally to prevent both
British and foreign defendants who had assets within England or
Wales from transferring or dissipating those assets. Since 1988,however, English courts have begun to issue so-called "worldwide"
Mareva injunctions, in order to restrain defendants subject to English
jurisdiction from dealing with or dissipating their assets situated
326. See TETLEY,M.L.C., supra note 1 , a t 988-89; see also AlS DIS Svendborg v.
Wansa, [1996] 2 Lloyd's Rep. 559,567-68.
327. The applicant must be asserting some legal or equitable r ight enforceable within
the jurisdiction. See Mercedes-Benz A.G. v . Leiduck, [1995] 2 Lloyd 's Rep. 417, 423-25
(P. c. ); Sou th Carol in a Ins . Co. v. Assu ran ti e Maat schappi j "De Zeven Provinci en" N .V. ,
[1986] 2 L loyd's Rep. 317, 324 (H.L.); T he Sis kina, [1978] 1 Lloyd's Rep. 1, 6 (H.L.);
TETLEY,M.L.C., supra note 1 ,a t 985-86. But see Mercedes-Benz, [1995 ] 2 L loyd' s Rep . at
430-31 (L.Nicholls, dissenting) (holding that the existence of a substantive cause of action in
t he jur isdi ct ion should not be an essent ia l cond it ion o f t he cou rt 's j ur isdi ct ion to g rant aMareva injunction).
328. See The Nieder sachsen , [1983 ] 2 L loyd 's Rep . 600 , 605 (ho ld ing tha t a "good
arguable case" meant "a case which ismore than barely capable of serious argument, and yet
not n ece ssar il y one which the Judge be li eves to have a bet ter t han 50 per cent . ch anc e o f
suc cess" ); Rasu Mar it ima S .A. v . The Pe rt amina , [1977] 2 L loyd 's Rep . 397 ,404 (C.A.) .
The "good arguable case" criterion replaced the "strong prima facie cas e" test f irst
propounded by Lord Denning inNippon Yusen Kaisha v. Karageorgis, [1975] 2 Lloyd 's Rep.
137, 138 (C.A.). See TETLEY,M.L.C., supra not e 1 , a t 986 , n. 251; see also Svendborg,
[1996] 2 Lloyd 's Rep. a t567.
329. See TETLEY,M.L.C., supra not e I , a t 987 .
330. See The Niedersa. hsen, [1983] 2 Lloyd 's Rep. a t 617; Barclay-Johnson v.Yuil l,
[1980] 1 W.L.R. 1259, 1265 {Ch.) ; Third Chandris Shipping Corp. v . Unimarine S.A. (The
Genie), [1979] 2 Lloyd's Rep. 184,189 (C.A.); TETLEY,M.L.C., supra note I , a t987 n.253.
331. See Fe1ixstowe Dock & Ry. Co. v .U .S . L ines Inc ., [ 1987 ] 2 L loyd' s Rep . 76, 93-
95 ; Ame ri can Cyanamid Co. v . E th icon Ltd ., [ 1975] 1 Al l E .R . 504 , 511 (H.L. ); TETLEY,
M.L.C., supra note 1 ,a t987 n.254.
1999] MARITIME LA WPROCEDURES 1951
outside of England and Wales.?" An order pursuant to a Mareva
injunction may also be issued requiring that assets outside the
jurisdiction be transferred to a jurisdiction where the Mareva remedy
will be recognized.l" Apart from the various matters that must be
proven in Mareva injunction applications generally, worldwide
Marevas also require the appl icant to satisfy the court that the partyenjoined lacks sufficient assets within the jurisdiction to satisfy the
claim and that the circumstances of the case "cry out" for the Marevaorder.?"
The issuance of worldwide Marevas continues to cause
consternation among many jurists, to whom the extra-territorial impact
of such injunctive relief suggests overreaching by U'K. courts,
particularly where the assets in question and those in possession of
them (for example, foreign banks) are located far from the BritishIsles.l"
D. Mareva Injunction Procedures-United Kingdom
Procedures relating to Mareva injunctions in the United
Kingdom are now largely codified in the Practice Direction 1994.336
Mareva procedures pay signi ficantly more heed to the protection of
the property rights of the party to be enjoined than do the procedures
applicable to the issuance of the writ in rem.
332. See, e.g., Derby & Co. v. Weldon (Nos . 3 & 4) , [1989] 2 w .L .R . 412 (C.A.) ;
Derby & Co. v .Weldon (No. I), [1989] 2 w.L.R. 276 (C.A.); Republic of Hai ti v .Duvalier ,
[1989 ] 2 w .L .R . 261 (C. '; .) ; Babana ft i nt 'I Co. S .A. v .Bassatne, [1988] 2 L loyd' s Rep. 435
(C.A.); TETLEY,M.L.C., supra no te I , a t 992 . For a more recent examp le in a mar it ime c ase
see Svendborg v. Wansa, [1996] 2 Lloyd's Rep. 559,575. '
333. See Derby & Co. Ltd . v .Weldon (No.6), [1990]1 W.L.R. 1139 (C.A.).
334. See TETLEY,M.L.C., supra note 1 ,a t 992.
335. See , . e.g ., i d. a t 992 n.280; David Capper , The Trans-Jurisdictional Effects of
Mareva Injunctions, 15 C tv. JUST. Q. 211 (1996); David Capper, Worldwide Mareva
Injunctions, 54 MOD.L. REv. 329 (1991); David Capper, The World wide Mareva Marches
On [1991] LLOYD'SMAR.& COM.L.Q. 26; Robert Crawford, 11,e Extra-Territorial Effect of
Mareva Injunc~ions-The Sleeping Giant in Fairyland, 18 AUSTL.Bus. L. REv. 28 (1990);
Peter Devonshire, The Impl icat ions o f Thi rd Part ie s Holding Asset s Subject to a Mareva
Injunction, [1996] LLOYD'SMAR. & COM.L.Q. 268; Paul D. Friedman, Worldwide Mareva
Injunctions-Assumption of Jurisdiction, 144 NEW L.J . 932 (1994 ); S teven Gee, Mercedes
and Mareva, 139 SOLIe. 1. 1076(2) n.41 (1995); Richard Harrison, Controlling the Mareva,
142 NEWL.J. 1511 (1992); Peter Kaye, Extraterritorial Mareva Orders and the Relevance of
Enforceability, 9 CIv. JUST.Q. 12(1990); Ali Malek & Caroline Lewis, Worldwide Mareva
Injunctions: The Position of International Banks, [1990] LLOYD'SMAR. & COM.L.Q. 88;
Campbell McLachlan, Transnational Applications of Mareva Injunctions and Anton Piller
Orders, 36 INT'L& COMPoL.Q. 669 (1987); Andrew Rogers, The Extra-Territorial Reach ofthe Mareva Injunction, [1991] LLOYD'SMAR.& COM. L.Q. 231.
336. See Practice Direction 1994, supra note 321.
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1952 TULANE LAW REVIEW [Vol. 73:1895
A Mareva injunction may issue before or after the start of the
trial. Where granted before trial, the injunction is customarily issued
after the writ , although it may be issued even before the writ is taken
out, provided that the applicant undertakes to issue the writ "forthwith"
or "as soon as practicable.Y'" A Mareva injunction may also be
sought by the defendant to the suit, in support of a counterclaim.l"
The applicant typically seeks the injunction at an ex parte hearing
before a judge in chambers, after submitting to the judge's clerk the
writ (where it is already out), the affidavit setting forth the relevant
facts and reasons for the application, and a draft minute of the order
sought.l" The applicant must also give a "cross-undertaking in
damages" to indemnify the defendant for losses resulting to himshould the claim be unsuccessful, as well as to compensate third
parties for any expenses that they may reasonably incur in complying
with the order or losses that the order may cause them.i"The Mareva injunction takes effect as soon as it is granted, but
the order must be served on the defendant as well as upon third parties
contemplated by its provisions.?" The Mareva may also be combined
with one or more "ancillary orders.'?" In particular, it may be
combined with an action in rem.?"
337. [d.Annex 2, Sched. 1(2), Annex 3,Sched. 1(2).
338. I n such cases, however , the counter claim must be se rved e ither immediately or
wi thin the t ime a llowed by the judge . See Fakih Bros. v. A.P. Muller (Copenhagen) Ltd.
Moller, [1994] I Lloyd's Rep. 103, 110(1993). .339. Paragraph A(I) of the Practice Direction 1994, supra note 321 , r equi re s the
application t o be lodged with the judge at l east two hours before the hearing "[w]here
practicable." In cases ofgreat urgency, however , the application may be made by telephone,
even if the documents are not submitted beforehand. See Allen v . J ambo Holdmgs Ltd. ,
[1980]1 w.L.R. 1252 (CA. 1979) .340. Paragraph A(2) of the Practice Direction 1994, supra note 321, provides that the
app lican t should be requ ir ed , in an appropriate case , to support h is c ross -under tak ing indamages by a payment into court or by an insurance company bond. Alternatively, the Judge
may order a payment by way of such securi ty to the app licant 's so li ci to r, which the lat ter
would hold as an off ice r o f the court . See id. Annex 2, Sched . 1( 6), Annex 3 , Sched . 1( 6)
(regarding cross-undertaking in respect of third parties).
341. See id. Annexes 2, 3, "Notice to the Defendant," ~ ( I) , and "Effect of this Order ,"
~~ (1)-(2). See id. Annex 2, Sched. 1(2), 1(5) & Annex 3, Sched. 1(2), 1(5); see also Baltic
Shipping Co. v.Translink Shipping Ltd., [1995]1 Lloyd's Rep. 673 ( invoking as one reason
to vary a Mareva order the failure to serve a worldwide Mareva order on a foreign bank
affected by the injunction was among the reasons invoked by the court in varying the order );
TETLEY,M.L.C, supra note I, at 990,1084.342. Ancillary orders could include, for example, orders for discovery or
interrogatories, orders for the cross-examination of the defendant on his affidavit declaring
his assets, orders for the investigation or the delivery of assets to a court-appointed receiver
or to the plaintiff 's solicitors, orders preventing the defendant from leaving the jurisdiction or
Anton Piller orders. See generally TETLEY,M.L.C, supra note I, a t991; see also Svendborg
v. Wansa [1996] 2 Lloyd's Rep. 559, 568-74; Gidrxslme Shipping Co. v. Tantomar
1999] MARITIME LA W PROCEDURES 1953
Worldwide Marevas today normally include a provision
requiring that the injunction be declared enforceable or that it actually
be enforced by a court in the relevant foreign jurisdiction, as a
condition of the effectiveness of the injunction against third parties
there who are not subject to the High Court's jurisdiction.l"
United Kingdom courts also discharge or vary Mareva
injunctions, particularly where they adversely affect the rights of
innocent third parties?" In some cases, the injunction is also varied or
discharged to benefit the defendant, provided that the purpose for
which the Mareva was originally issued IS not thereby
compromised.?"
E. Mareva Injunctions-Canada
Following the United Kingdom, Canada lost little time in
accepting the Mareva injunction, as early as 1979.347 The Supreme
Court of Canada, in Aetna Financial Services v. Feigelman,recognized the Mareva order, but warned that the English rules
regarding its use could not simply be transplanted into a federal statesuch as Canada without some adaptation.l" The court further held
that in Canada, a "strong prima facie" case, rather than merely a
"good arguable case," would have to be shown by the Mareva
applicant in order to obtain the injunction.l" Mareva injunctions
were also approved by the Federal Court of Canada.l" Canadian
Transportes Mar it imos LOA., [1994]2 Lloyd's Rep. 392, 393 (Q.B.) (combining wor ldwide
disclosure order with Mareva injunction affecting intra-jurisdictional assets).
343. See The Rena K, [1978]1 Lloyd's Rep. 545, 562-63.
344. See Practice Direction 1994, supra note 321 , Annex 2 ,~ 2 .
345. See Oceanica Castel a na Arrnadora S.A. v. Mineralimportexport Alaka
Navigation Inc. (The Theotakos), [1983]2 Lloyd's Rep. 204, 204; see also TETLEY,M.L.C.,
supra note I,at 993-94.346. See Iraqi Mini st ry of Defense v . Arcepey Shipping Co. S.A. (The Angel Bel l),
[1980] ILloyd's Rep. 632, 637 (1979); see also Comdel Commodities Ltd. v. Siporex Trade
S.A. , [ 1997] I L loyd' s Rep . 424 , 435 (CA. ) (d is charg ing a Mareva injunct ion due to the
c la imant' s unexp lained delay to prosecu te the c la im for some 19 months ); Svendborg v .
Wansa, [1996]2 Lloyd's Rep. 559,575,576 (CA.) ; TETLEY,M.L.C., supra note I, at 994-
96.
347. See TETLEY, M.L.C, supra note I, at 1002 (citing early Canadi an Mareva
decisions). Other British Commonwealth countries have also embraced the Mareva remedy.
See, e.g., Jackson v.Sterling Indus. Ltd. (1987) 61 A.L.J.R. 332 (Austl.).
348. [1985]1 S.CR. 2,4,34-37. The Supreme Court pointed out, for exampl e, that
the grant of Mareva injunction to prohibit the transfer of assets between Canadian provinces
might be unwarranted, in view of the possibility of interprovincial enforcement of
judgements throughout Canada See id. at 34-37.
349. See id. at 27; see also Pegasus Lines Ltd. S .A. v.Devil Shipping Ltd. [1996] 120
F.T.R. 241,268-69 (Fed. Ct.); TETLEY,M.L.C, supra note I, at 1004, 1083 .
350. See TETLEY,M.L.C, supra note I , at 1004-06.
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1954 TULANE LAW REVIEW [Vol. 73:1895
courts have also followed the British lead in issuing "worldwide"
Mareva injunctions."!
Mareva process in the Federal Court of Canada (where most
maritime law disputes are tried) is·governed by the general rules on
interlocutory and interim injunctions in the Federal Court Rules,
1998.352 The injunction is granted by the judge on motion. l" The
moving party for an interlocutory injunction is required to "undertake
to abide by any order concerning. damages caused by the granting or
extension of the injunction," unless a judge orders otherwise.l" This
is, in effect, the "cross-undertaking in damages" of the United
Kingdom, and the applicant may be required to put up security in case
the injunction proves to have been unjustified. An interim injunction
may be issued, on an ex parte motion, for a period not exceeding
fourteen days, when the judge is satisfied, in a case of urgency, that no
notice ispossible or that to give notice would defeat the purpose of the
motion."? As in the United Kingdom, the Mareva injunction in
Canada may be taken at the same time as the action in rem and
arrest?"
Although the matter has yet to be decided, it is by no means
certain that the issuance of a Mareva injunction ex parte could be
successfully challenged in Canada on grounds relating to the Bill of
Rights of 1960357 or the Canadian Charter of Rights and Freedoms of
1982,358 particularly because of the possibili ty of the defendant:
(1) obtaining the discharge or variance of the injunction, (2) giving
351. See, e.g., Community Ass 'n of S. Indian Lake, Inc. v. MacIver [1996]1 WWR
168,170 (Man. Ct. App.) ; Mooney v. Orr [1994]98 B.C.L.R. (2d) 318 (B.C. S.C); TETLEY,
M.L.C., supra note I, at 1004 n .344 ; John Arnold Epp , World-wide Mareva Injunctions in
Common Law Canada, 59 MOD. L. REv. 460 (1996); see also Vaughan Black & Edward
B~bin, Mareva Injunctions in Canada: Territorial Aspects, 28 CAN.Bus. LJ. 430 (1997);
Ehzabeth Edinger, Comments on Black and Babin, 'Mareva Injunctions in Canada:Territorial Aspects " 28 CAN.Bus. L.J . 477 (1997); Paul Michell , The Mareva Injunction in
Aid of Foreign Proceedings, 34 OSGOODEHALLL.J. 741 (1996); Michael Andrew Skene,
Commerc ia l L it igat ion Beyond the Pale: A Compar ison o f Ext ra te rr itorial An ti su it and
Mareva Jurisdiction Exercised by the Courts of England and British Columbia in
Commercial Disputes, 30 U. BRIT.COLUM.L. REV. 1 (1996). .
352. SOR 98 /106 , in fo rce Apri l 25, 1998. The Fede ra l Court 's juri sd ic tion to i ssue
Mareva injunct ions has been held to be derived from i ts power to pro tect and prese rve i ts
own process. SeeStandal Estate v, Swecan lnt 'l Ltd. [1990]1 F.C. 115,117.
353. Federal Court Rules , 1998, Rule 373(1).
354. Id . Rule 373(2).
355. See id. Rule 374(1).
356. See Parmar Fisheries Ltd. v. Parceria Maritima, [1982]141 D.L.R. (3d) 498,503-
05 (N.S. Supr. Ct.); TETLEY,M.L.C., supra note I, a t 1006.
357. See Canadian Bill ofRights , S .C., 8 & 9 Eliz. 2, ch. 44 (1960) (Can.).
358 . Pa rt I o f the Const itut ion Act , 1982, i sSchedu le B to the Canada Act , 1982, ch.
II (Eng.).
1999] MARITIME LAWPROCEDURES 1955
security to obtain release of the assets, (3) securing the enforcement of
the plaintiff's cross-undertaking in damages, or (4) suing for damages
for bad faith by the plaintiff in issuing the injunction wrongfully.'?
F . TheMareva Injunction, theAction In Rem, and theAttachment
Because the Mareva injunction is purely a court order freezingassets, it does not in itself found the jurisdiction of the court over the
merits of the underlying claim, nor does it place the "frozen" assets
under the court's authority so as to permit their judicial sale in
satisfaction of an eventual judgment allowing the claim. For these
reasons, the Mareva injunction is a less effective mechanism for
assisting the claimant in quest of pre-judgment security than the
civilian saisie conservatoire, the old English Admiralty attachment or
the modern U.S. maritime attachment.l'" Nevertheless, the Mareva
injunction also has certain advantages in comparison with those more
traditional maritime enforcement procedures.
The saisie conservatoire can immobilize either the defendant's
property or, in some cases, that of a third party, whereas the Marevaorder is limited to the defendant 's property?" On the other hand, the
Mareva injunction can "freeze" any or all of the defendant's assets in
our out of the jurisdiction and can be used in aid of any type of
claim.?" By comparison, the saisie conservatoire under the Arrest
Co~vention 1952 permits only the attachment of one ship by anyone
clannant. for an~ one "maritime claim" listed in article 1(1) of theConvention. Neither the Mareva nor the saisie conservatoire foundsjurisdiction.l"
The action in tern is more effective than the Mareva injunction in
that:
(1) Itgives the court jurisdiction to adjudicate the claim on its
merits and p.uts the ship or other res in the court's custody. TheMareva applicant, on the other hand, must establish the court's in
personam jurisdiction over the claim, and the injunction merely
3?9. See gener~lly TETLEY,M.L.C., supra note I, at 1014-15, 1085-86; see a lso
Canadian Charter of RIghts and Freedoms § I (permitting certain restrictions on basic rights
which are "demonstrably justified in a free and democratic society."),
" 360. See. Mercedes Benz A.G. v. Leiduck , [ 1995] 2 Lloyd' s Rep . 417,424 (P.C. )
( Moreover, I tISnow quite clear that Mareva relief takes effect inpersonam alone ' i t is not an
attachment; i t gives the claimant no propr ietary r ights in the assets seized and no advantage
over other creditors of the defendant. "). '
361. See id.
362. See id.
363. See TETLEY,M.L.C., supra note I , at 1017-18.
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1956 TULANE LAW REVIEW [Vol. 73:1895
prohibits the removal or dissipation of the assets affected, on pain of
contempt of court.(2) The action in rem plaintiffhas been held entitled to an arrest
warrant as of right, whereas the Mareva injunction petitioner must
depend onjudicial discretion.(3) The action in rem, asserting maritime liens or statutory
rights in rem, enforces those claims according to their respective
ranking, while theMareva injunction confers no special priority on the
underlying claim.(4) Moreover, under U.K. law, where the "offending ship" is
chartered, either it or a sister ship belonging to the charterer may be
arrested in rem if the charterer would have been personally liable on
the claim when it arose. By comparison, the Mareva injunction
permits only the property of the defendant (the charterer, in this
example) to be "frozen."(5) Arrest in rem claimants are rarely condemned in damages,
unless their arres t was ' 'wrongful'' (in other words, motivated by
malice or gross negligence). On the other hand, Mareva petitionersare more frequently found liable in damages, where their injunctions
are held to be either unjustified or abusive.
(6) Finally, third parties may assert certain well-defined
procedures where they are affected by an arrest in rem (for example, a
caveat against arrest) , whereas third parties prejudiced by Mareva
injunctions must take substantive proceedings to protect their rights.l"
Among the advantages of the Mareva injunction over the action
in rem are the following:(1) The action in rem permits only the arrest of the ship (or in
some cases, cargo, freight, bunkers or judicial sale proceeds) in the
jurisdiction. Mareva injunctions, on the contrary, may affect all types
of property of the defendant, located both inside the jurisdiction andabroad.
(2) Mareva injunctions may affect more than one ship, whereas
only one ship may be arrested for anyone marit ime claim under the
Arrest Convention 1952.
(3) The Mareva injunction leaves the "frozen" property in the
hands of the defendant, thus minimizing costs pending trial of the
claim. Arrest in rem, by comparison, entails significant costs of arrest
and expenses in custodia legis.
364. See id .at 1020-21.
1999] MARITIME LA W PROCEDURES 1957
(4) Mareva injunction applicants furnish undertakings to pay
damages if so ordered, while action in rem plaintiffs must furnish
security for the Marshal's expenses of arrest and custody.
(5) Mareva injunctions are obtainable when the judge is
available. On the other hand, actions in rem may be filed only when
the appropriate court offices are open.
(6) Mareva petitioners in the United Kingdom need onlyundertake to issue proceedings and file an affidavit . Action in rem
plaintiffs , however, must actually issue proceedings and file an
affidavit.
(7) Assets subject to a Mareva order may, with the court' s
permission, be used to pay ordinary trade debts or to carry on business
or personal life, whereas use of assets arrested in rem is inconsistent
with their custody by theAdmiralty Marshal.?"
G. Conclusion-Mareva Injunction
The Mareva injunction has become an entrenched part of legal
process, including maritime law process, in England and otherBrit ish Commonwealth countries, since its inception in 1975. It
compensates partially for the alleged extinction by non-user of the
old Admiralty attachment. One may well ask, however, whether
Lord Denning would not have been on more solid legal ground in
reviving the moribund attachment than in creating a wholly new
species of injunction with particular rules of its own. Had he
resuscitated the Admiralty attachment, Lord Denning would have
provided judges with a more useful pre-judgment security device,
which would have confirmed the court's jurisdiction and would also
have enabled the United Kingdom to comply more fully with the
essentially civilian regime of the Arrest Convention 1952 in respect
of seizures for any maritime claim.l"Civilian countries such as France, which never lost the saisie
conservatoire, and the United States, which preserved the attachment
after its presumed demise in England, are fortunate to. possess that
most useful weapon in the arsenal of their pre-judgment admiralty
procedures.
365. Seeid. at 1018-20.
366. See id. at 996-97.
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VII. THE ANTON PILLER ORDER
A. Introduction
At almost the same time that the English Court of Appeal
created the Mareva injunction, it also approved another type of
injunction, now known as the "Anton Piller order," the name being
attributable to the Court's 1975 decision in Anton Piller KG v .Manufacturing Processes Ltd.367 The House of Lords, in Rank Film
Distributors Ltd. v . Video Information Centrei" upheld the High
Court 's jurisdiction to grant Anton Piller orders, either as part of the
Court's inherent jurisdiction or under its power to issue injunctions,
now provided for in section 37(1) of the Supreme Court Act, 1981.369
The Anton Piller order is an ex parte injunction, enjoining the
party to whom it is addressed to consent, on pain of contempt of cour t,
to the applicant's entry into and search of premises controlled by the
defendant, as well as to the examination, removal and/or copying of
documents and/or other property found there and specified in the
order, for use in connection with actual or intended legal
proceedings.F" This type of court order has proven to be a valuableprocedure for securing and preserving evidence, particularly in
intellectual property lit igat ion, although it i s used in all types of suits,
including maritime cases.
B. The Anton Piller Order-United Kingdom
The applicant for an Anton Piller order must show evidence of:
(1) a strong prima facie case favouring issuance of the injunction,
(2) serious damage (actual or potent ial) to himself if the injunct ion is
refused, (3) possession by the defendant of incriminating documents
or things, and (4) the possibili ty that such evidence may be destroyed
before any application inter partes can be made.!" The balance of
convenience must also favour issuance of the order."? The
procedure requires a motion, ei ther before or after trial , supported by
an affidavit, in which the applicant must make "full and frank
367 . [1976] Ch. 55 (C.A. ). The fi rs t reported deci sion grant ing such an order was the
1974judgment ofTempleman J. inE.Ml Ltd. v. Pandit, [1975]1 W.L.R. 302 (Ch.).
368 . [1981]2 WL.R. 668 ,672-73 (H.L. ).
369. See The Supreme Court Act, 1981, ch. 54, § 37(1)(Eng.).370 . See genera ll y MARTINDOCKRAY,ANTONPILLERORDERS2; TETLEY,M.L.C.,
supra note I , at 1022-25.
371. See Anton Piller KG v.Manufacturing Processes Ltd., [1976] Ch. 55, 62 (C.A.).
372. See Columbia Picture Indus. Inc. v.Robinson, [1987] Ch. 38, 76; Lock Int 'l PLC.
v .Beswick , [1989]1 WL.R. 1268, 1281 (Ch .); Coca -Cola Co. v .Gi lbey , [1995] 4 All E.R.
711,715 (Ch.); DOCKRAY,upra note 370, at 19-20.
1999] MARITIME LAW PROCEDURES 1959
disclosure" of all relevant facts and the specific provisions he is
seeking.l"
C. Anton Piller Orders-United Kingdom Procedural Safeguards
Anton Piller orders gave rise to an understandable concern over
the civil rights of defendants, particular ly in respect of the privi lege
against sel f-incrimination.l" As a result, quite elaborate procedural
safeguards were established in the United Kingdom in an effort to
prevent any potential abuse of the injunction. These safeguards are
included in the same Practice Direction of July 28, 1994, that
regulates Mareva injunction process in the United Kingdom.?"
Among the most important procedural controls on Anton Piller
orders are: (1) applications for such an order are no longer heard by
judges in chambers; (2) the order is served by a "supervising solicitor ,"
independent of the law firm representing the applicant, who must
explain the order to the defendant fairly and in "everyday language,"
inform him of his right to seek legal advice and to apply for the
variance or discharge of the order, and report in writing to theplaint iff's solici tor on the carrying out of the order; (3) the defendant
may insist that nobody be present who could gain commercially from
anything he might read or see on the premises; (4) the defendant may
refuse entry to the premises to be searched before 9:30 a.m. or after
5:30 p.m. and al l day Saturday and Sunday; (5) the premises may only
be searched in the presence of the defendant or a person appearing to
be his responsible employee; (6) the items removed from the premises
must be listed before removal, with a copy of the list to be remitted to
the defendant; and (7) the defendant may seek to have the order varied
or discharged?"
The plaintiff applying for an Anton Piller order must undertake,
inter alia: (1) to compensate the defendant in damages for lossescaused by the order or it s carrying out; (2) to issue and serve a writ on
the defendant (if not al ready done) ; (3) to serve the defendant wi th the
affidavits and a notice of motion/summons, as well as with a copy of
the supervising solicitor's report on the carrying out of the order;
(4) not to use any information or documents obtained as a result of the
carrying out of the order, except for the legal proceedings concerned;
373. See DOCKRAY,upra note 370, at 26-32.
374. See id. at 1-2,20-25.
375. See Practice Direction 1994, supra note 321 , a t '1 1 (8) & Annex 1 ( the standard
form of Anton Piller order ). Note that the standard form of Anton Piller order was changed
by the Practice Direction of October 28, 1996. See [1996]1 WL.R. 1552.
376. See Universal Thermosensors Ltd. v.Hibben, [1992]1 W.L.R. 840, 859-60 (Ch.).
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1960 TULANE LAW REVIEW [Vol. 73:1895
and (5) not to inform anyone else of the proceedings until after the
return date."? Additional procedural obligat ions are imposed on the
plaintiff's solicitor, particularly regarding return of the items
removed.?"
Among the main grounds for discharging an Anton Piller order
are: (1) the applicant's bad faith or material nondisclosure in obtaining
the order, (2) the unfounded issuance or improper execution of the
order, and (3) the risk of incrimination of the party to whom the order
is addressed.?" Anton Piller orders have also been issued in the
United Kingdom with respect to foreign premises and foreign
proceedings.!"
D. Anton Piller Orders-Canada
The Canadian judiciary adopted the Anton Piller order in the
early 1980s, so that it is now an integral part of the legal process
available in both the superior courts of Canada's provinces and
territories and the Federal Court of Canada."! Nor has the injunction
escaped the attention of commentators on Canadian law.382As a result of the Supreme Court of Canada's decision in
Canadian Broadcasting Corp. v . Dagenaisl" discretionary court
orders are now subject to judicial review under the Canadian Charter
of Rights and Freedoms.?" Accordingly, in 1996, Judge Reed of the
Federal Court of Canada, in Fila Canada Inc. v . Doe, held that Anton
Piller orders were subject to section 8 of the Charter, prohibiting
unreasonable search and seizure.?" She took the opportunity to
suggest a few specific practices, resembling those of the United
377. See Practice Direction 1994, supra note 321, Annex I , Sched. 3.378. See id. Annex I , Sched. 4.
379. See DocKRAY, supra note 370, at69-74 (citing decisions).
380. See id. at 62-65.
381. See TETLEY,M.L.C., supra note I , at 1024n.448.
382. See, e.g., TETLEY,M.L.e., supra note I, a t 1024, n .448 ; J . Berryman, Anton
Piller Orders: A Canadian Common La w Approach, 34 U. TORONTOL.J. I (1984); Jeffrey
Berryman, Anton Piller Injunctions: An Update, 2 INTELL.PROP.1. 49 (1986); Mitchell P.
Mcinnes, The Righ t to S il ence in the Presence of Anton Piller: A Question of Self-Incrimination, 26 ALTA.L. REv. 332 (1988); Allan M. Rock, The "Anton Pi ll er" Order: An
Examination of i ts Nature, Development and Present Posit ion in Canada, 5 Anv. Q. 191
(1984-85); George Takach, Exploring the Outer Limits: The Anton Piller Order in Canada,
23 ALTA.L. REv. 310 (1985).
383. [1994] 3 S.C.R. 835, 836-37.
384 . Pa rt I o f the Const itut ion Act , 1982, i s Schedule B to the Canada Ac t, 1982, ch.
II (Eng.).
385. [1996]3 F.e. 493, 494.
1999] MARITIME LA W PROCEDURES 1961
Kingdom, which she believed should be adopted by the Federal Court
in respect of such orders, in the interests of civil rights of Canadians.!"
Canadian judges are showing caut ion in granting Anton Piller
orders, following English precedent. InProfekta International Inc. v .
Aun Lav Mai, for example, i t was held that Anton Piller orders should
be granted in only "the rarest of circumstances," because they confer
on the moving party a search and seizure power that runs contrary to
the principles of private property and trespass."? To obtain such an
order, as in England, the moving party must demonstrate to the
Canadian court: (1) "an ext remely st rong prima facie case," (2) the
potential for very serious damage, and (3) "clear evidence that the
other party has in it s possession incriminat ing documents or things,
and that there is a real possibili ty that the other party may destroy such
material before any application interpartes can be made.'?" After the
action has commenced, the court must also be convinced that it is
appropriate to proceed in the absence of the other party.389 The judge
in Profekta was loathe to grant the order ex parte, particularly as the
other party was represented by counsel, but did so because the plaintiff
had shown "compelling reasons" for believing that if notice of the
motion were given to the defendant, the evidence sought would
disappear, thus justi fying a derogat ion from the audi alteram partem
rule."? There was also ' ''compelling evidence that the defendant [was]
bent on flouting the process of the court by refusing to abide by the
ordinary procedure of discovery. ",391
E. Conclusion-Anton Piller Orders
Anton Piller orders ensure that vi tal evidence will be available
at trial, before it call be destroyed or spirited away by unscrupulous
386. See id. at499-500 (recommending, among other procedures were the f il ing of theapplication in the Federal Court at least two clear days before the hearing of the motion; the
requirement that the applicant show a "very strong prima facie case"; the requirement for the
presence of a supervising solicitor to observe and repor t on the service and execution of the
order ). J udge Reed al so recommended a number of pract ice s r elat ing to the mot ion for
review of the order 's execution and the development of a model Anton Piller order . See id. at
503-04; see also TETLEY,M.L.e., supra note I , at 1025n.454.
387 . [ 1997]1 EC. 223 , 227-28.
388. Id. at 228.
389. See id.
390. See id. at 229-34 (citing EMI Ltd. v.Pandit, [1975]1 W.L.R. 302 (Ch.) ; Yousifv.
Sa lama, [1980] I W.L.R. 1540 (e .A.); s ee a lso ROBERT1. SHARPE, INJUNCTIONSAND
SPECIFICPERFORMANCE-66 (2d ed. 1992).
391. Id. at 233 (quoting SHARPE,supra note 390). But cf Ultramar Canada Inc. v.
Soconav Inc. [1988]2 Ee. D-7 ( refusing where an order permitt ing the general inspection of
a ship and the production ofdocuments because evidence of the accident inquestion could be
obtained by the normal discovery process).
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1962 TULANE LA W REVIEW [Vol. 73:1895
defendants. The procedure must be closely regulated, however, to
safeguard basic property rights of honest individuals and
oorporations.l"
VIII. THEARRESTOF SHIPSCONVENTION999
A. IntroductionA Draft Revision of the Arrest Convention 1952 was adopted
by the Comite Maritime International (CMI) at its conference in
Lisbon in 1985.393 This "Lisbon Draft" was submitted by the CMI,
together with a draft revision of the Maritime Liens and Mortgages
Convention 1967,394to the International Maritime Organization
(IMO) and the United Nations Conference on Trade and
Development (UNCTAD). The Joint Intergovernmental Group of
Experts on Maritime Liens and Mortgages and Related Subjects
(JIGE), established by IMO and UNCTAD to review the marit ime
liens and mortgages conventions and related enforcement
procedures, recommended in 1989 that further work on revising the
Arrest Convention 1952 be postponed, pending the adoption of a
new Maritime Liens and Mortgages Convention?"
Following the adoption of the Maritime Mortgages and Liens
Convention 1993/96 work resumed within the JIGE on revising the
Arrest Convention 1952.
The JIGE completed its consideration of revisions to the Arrest
Convention at its ninth session, held in Geneva from December 2 to
December 6, 1996,397and requested the Secretariats of IMO and
UNCTAD, in consultation with the JIGE Chairman, to prepare a set of
draft articles on the basis of the decisions taken by the Group.!" The
"Draft Articles for a Convention on Arrest of Ships," dated April 14,
392. See generally Ronald Craigen, Anton Piller: Valuable Remedy or Oppress ive
Tool?, Anvoc. Soc. 1., Oct 1995, at II; Paul D. Godin, Anton Piller Orders in an Age of
Skepticism: Charter Application and Other Safeguards for Judicially-Ordered Searches, 54
U. TORONTO FAC. L. REv. 107 (1996) (discussing the practical safeguards available when
carrying out the order).
393. See BERLINGIERI,ARRESTOF SHIPS,supra note 8,at 186-90.
.394. ! he In te rnat iona l Conven tion for the Uni fi cat ion of Certain Rule s Re la ting to
Mari time LI ens and Mortgages, adop ted at Brussel s, May 27, 1967, but not in fo rce. See
TETLEY,M.L.C., supra note I, at 1421-28.
395. See BERLINGIERI,ARRESTOF SHIPS,supra note 8 ,a t 159 .
396. The International Convention on Mar it ime Liens and Mortgages , 1993, adopted
at Geneva, May 6, 1993 [hereinaf ter Mar it ime Liens and Mortgages Convention 1993] . See
TETLEY,M.L.C., supra note I, at 1429-38.
397. See JIGE(lX)/2, TDIB/IGE.I12, LEGIMLM/39.
398. See JIGE(lX)/4, IDIB/IGE.I/4, LEGIMLM/41, ~ 9.
1999] MARITIME LA W PROCEDURES 1963
1997, were accordingly prepared.?" for submission to a diplomatic
conference requested by the JIGE,400 which was subsequently
scheduled for March 1 to March 12, 1999, in Geneva. The final text
of the International Convention on the Arrest of Ships, 1999, was
adopted at Geneva onMarch 12, 1999.401The Convention will remain
open for signature from September 1, 1999, to August 31,2000, and
thereafter for accession.f" Itwill come into force six months after thedatewhen ten States have expressed their consent to be bound by it.403
B. General Observations on the Arrest Convention 1999
1. The Definition of"Arrest"
The new Convention defines "arrest" at article 1(2) 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. The main change from 1952, apart from the reference to
arbitral awards or "other enforceable instrument," is the inclusion of
the words "restriction on removal of a ship," which would seem toinclude Mareva injunctions issued in respect of vessels. The new
definition, l ike its predecessor, would also include civilian saisie
conservatoire, and the U.S. marit ime attachment, as well as arrest in
an action in rem. That the new Convention encompasses the two
styles of arrest, being the common-law arrest in rem and the civilian
saisie conservatoire, or attachment, is one of its strengths, just as it is
ofthe 1952 Convention.
It would also appear that the new Arrest Convention would
recognize many, but seemingly not all, "special legislative rightS.'>404
Special legislative rights are rights permitting governments and certain
other public bodies to seize, detain and, in some cases, sell or
confiscate ships, in order to guarantee certain claims (for example,
399. JIGE(IX)/5, IDIB/lGE.1/5, LEGIMLM/42.
400 . The JIGE , in Annex I of i ts report on i ts ninth ses sion , supra note 397, requested
the IMO Counci l and UNCTAD's Trade and Development Board to consider proposing to
the UN General Assembly the convening of a diplomatic conference to consider and adopt a
conven tion on the a rre st of s eago ing sh ips on the bas is o f the dra ft art icl es prepar ed by the
JIGE.
401. See U.N. Doc. No. NCONF/188.6 (Mar. 12, 1999). The final text of the
International Convention on the Arres t of Ships , 1999, is reprinted in the Appendix, infra
[hereinafter Arrest Convention, 1999].
402. See Arrest Convention, 1999, infra App., art. 12(1).
403. See id. art. 14(1).
404. On "special legislative rights" generally, see TETLEY,M.L.C., supra note I, at 63-
71,73-99,101-25,127-68,169-215.
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1964 TULANE LAW REVIEW [Vol. 73:1895
harbour dues, wreck removal costs , pollution expenses, or damages),
or as sanctions for certain offenses (for example, narcotics trafficking,
fisher ies violations, or il legal inunigrat ion). Governmental rights of
this type abound today, under both international conventions and
national legislation, in virtually all countries of the world, and they are
frequent ly accorded precedence by national law over marit ime liens
and ship mortgages. The failure to take account of them in theMaritime Liens and Mortgages Convention 1993 is a lacuna that
threatens to prevent many countries, especially major marit ime states
such as the United Kingdom and the United States, from becoming
parties to that Convent ion.t" The new Arrest Convention, for its part,
rightly provides at article 8(3):
This Convention does not affect any rights or powers vested in any
Govenunent or its departments, or in any public authority, or in any
dock or harbour authority, under any international convention or under
any domestic law or regulation, to detain or otherwise prevent from
sailing any ship within their jurisdiction.f" .
This provision is quite similar to the second phrase of article 2 of
the 1952 Convention, except that i t recognizes governmental rights of
detention of ships ar ising under international conventions, as well as
under national laws and regulations. This is an important addition,
because today many international conventions confer rights of ship
detention (or even confiscation) on governments, notably with respect
to drug trafficking?" and pollution.t"
Although many special legislative rights would be covered by
this rule, it unfortunately is limited to detention and thus does not
cover special legislative rights that empower publ ic bodies, without
court intervention, to sell the detained vessel, and to bepaid in
405. See id. at 76-77,175,214. The Mar it ime Liens and Mortgages Convention 1993,
a t a rt ic le 12(3), does permi t s tates to enact a spec ial l eg is la tive righ t aga inst jud icial sa le
proceeds ( rank ing before al l o ther mar it ime l ien c la ims on a ves se l) f or wr eck removal
expenses incur red by public authorities , but only where the removal has been effected in the
interes t of safe navigation or the protection of the mar ine environment. This r ight does not
extend to pollution damage, however. See id. at 68, 144 and 168.
406. Arres t Convention, 1999, infra App., art. 8(3).
407. See, e.g., U.N. Convention Against I ll ic it Drugs and Psychotropic Substances
1988, adopted at Vienna , Dec. 20, 1988, and in force Nov . II, 1990,28 I.L.M. 497 (1989),
art. 5(1)(a),(b); s e e a l so TETLEY,M.L.C., at 176.
408. See, e.g., Law of the Sea Convention 1982, adopted at Montego Bay, Jamaica, on
Dec . 10, 1982, and in force Nov . 16, 1994, 21 I .L.M. 1261 (1982), a rt . 220(2), (6 ); s e e a l so
TETLEY,M.L.C., at 141.
---------- -- ----------- ---
1999] MARITIME LA WPROCEDURES 1965
preference to most, if not all, other claimants out of the proceeds of
that sale.?"
2. A "Closed" List of "Maritime Claims"
The new Convention begins, as does the 1952 Convent ion, with
a lis t of "marit ime claims." Iti s important , of course, not to confuse
"maritime claims" with "maritime liens." In the 1952 and 1999
Arrest Conventions, "maritime claims" refers merely to claims
permitting the arrest of a ship. Some "maritime claims" are
"maritime liens" and some are not. Whether specific types of
"mari time claims" constitute "maritime liens," which follow the ship
and rank before ship mortgages, or merely statutory rights in rem,
which do not follow the ship and rank after the mortgage, depends on
other international conventions (governing maritime liens and
mortgages) and on national law.
The nGE could not reach agreement on whether the list of
"mari time claims" should be "closed" (in other words, exhaust ive), as
under the 1952 Convention, or "open-ended," to take account of new
types of maritime claims that may emerge with the passage of time.
Accordingly, ar ticle 1(1) of the Draft Art icles 1997 sets forth a list of
twenty-two specific "maritime claims.?"" but the preamble, or
"chapeau.?'" includes wording in brackets (in other words, wording
for decision by the diplomatic conference), which would have made
"maritime claims" an "open-ended" concept?"
The diplomatic conference appears to have opted for a "closed"
list of "maritime claims," as found in the Arrest Convention 1952.
Article 1(1) of the {\rrest Convention 1999 begins with the words:
'''Maritime Claim' means a claim arising out of one or more of the
following"; there follows the list of twenty-two categories of
409. See, e.g., the Canada Marine Act, S.c. 1998, ch. 10, § 122 (I), which gran ts a
por t authority, the Minis ter of Transport of Canada, or a person operating the St. Lawrence
Seaway under an agreement with the Government, a lien on the ship and proceeds of its
disposition for fees and interes t in respect of the ship or goods car ried on it and for damage to
prope rty caused by the ship or cr ew, which l ien takes precedence ove r " al l o ther righ ts ,
intere st s, claims and demands, o ther than claims for wages of s eamen unde r the Canada
Shipping Act."
410. See Arrest Convention, 1999, infra App., art. 1(1)(a)-(v).
411. See id. art. 1(1).
412. Article I of the Draft Articles 1997 began as follows: (I) 'Maritime claim'
means any [c la im concern ing or a ri sing out of the ownership, cons truct ion, pos se ssion ,
management, operation or trading of any ship, or concerning or arising out of a mor tgage or
an 'hypo theque' o r a r eg is trable charge of the same nature on any sh ip , such asany] claim in
respect of ....
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"maritime claims" that permit the arrest of a ship."? Inmy view, it is
regrettable that an "open-ended" list was rejected, because it would
have provided greater flexibility to courts applying the Arrest
Convention 1999 in future years.
4. Arrest of Ships About to SetSail or Sailing
The JIGE was unable to resolve whether article 2(3) permitting
the arrest of a ship about to set sail (as per article 3(1) of the 1952
Convention) should also permit the arrest of a ship after it has begun
to sail (as proposed in the Lisbon Draft 1985). The whole provision
was therefore bracketed for further discussion at the diplomaticconference. Although many expected that the final Convention text
would permit arrest in both situations,"? thereby facilitating the arrest
of ships just after they leave berth and while still within the
jurisdiction of the arresting court, there is no express reference to the
matter in the Convention as adopted. Itwould seem that the issue
has been left to national law, inasmuch as the Convention provides
that: "Subject to the provisions of this Convention, the procedure
relating to the arrest of a ship or its release shall be governed by the
law of the State in which the arrest was effected or applied for.'>418
3. Some Specific Maritime Claims
The Arrest Convention 1999 includes some new maritime
claims not contemplated in the 1952 Convention, notably costs of
repatriation of masters, officers and seamen, and social insurance
contributions payable on their behalf (specifically, the employee's
share payable by source deductions from wagesj.i" Other new
maritime claims are claims for insurance premiums (including
mutual insurance calls) in respect of the ship, payable by or on behalf
of the shipowner or demise charterer'" and claims for commissions
brokerages or agency fees payable in respect of the ship by or on
behalf of the shipowner or demise charteren?"
It would have been useful to add to article 1(1)(0) insurance
premiums payable in respect of the master and seamen, although sucha claim should not have marit ime lien status. No such addition was
made, however, so there is no right of arrest for life insurance
premiums under the Arrest Convention 1999.
Article 1(1)(n) of the Draft Articles 1997 concerning "port, canal
and other waterways dues and charges," was amended, however, to
include express mention of "dock charges" in the final text of that
provision. Dock charges were expressly referred to in article 1(1)(1)
of the Arrest Convention 1952and in the Lisbon Draft 1985. Such an
express mention better protects the interests of terminal operators in
particular.
Another amendment to the 1997 Draft Articles was made in
adding the word "reconstruction," so that artic le 1(I)(m) reads:"construction, reconstruction, repair, converting or equipping of the
ship" in the final text. The addition is important, because
reconstruction differs from conversion and because theMaritime Liens
and Mortgages Convention 1993, at article 7(1)(b), recognizes the ship
repairer's right of retention of the vessel for repair, including
reconstruction.
5. Arrest for Maritime Liens and Statutory Rights InRem
Article 3(1)(a)(i)-(v) of the Draft Articles 1997 expresslyprovided for arrest for marit ime liens recognized under article 4 of
the Maritime Liens and Mortgages Convention 1993. The final text
of the new Arrest Convention does not include any equivalent
provision. Rather, the Arrest Convention 1999 permits arrest of any
ship in respect of which a marit ime claim is asserted if "(e) the claim
is against the owner, demise charterer, manager or operator of the
ship and is secured by a marit ime lien that is granted or arises underthe law of the State where the arrest is applied for,"?" This could
presumably include ~aritime lien claims contemplated by article 4 of
the Liens and Mortgages Convention 1993 (if the State where the
arrest is applied for is a party to that Convention), as well as any
other maritime liens granted by or arising under that country's
national law.?"
413. See Arrest Convention, 1999, infra App., art. 1(1).
414. See id. art. 1(1)(0).
415. See id. art. I(I)(q).
416. See id. art.II)(r).
417. It is notewor thy that art ic le 28(3) of the United Nations Convention on the Law
of the Sea , adop ted in Montego Bay, Dec. 10, 1982 and in force Nov. 16 , 1994, expr es sly
permits arres t of a foreign ship by a coastal s tate in its ter ri torial sea or while passing through
the ter ri torial sea after leaving its internal waters, in accordance with its law, for purposes of
any civil proceeding.418. See Arrest Convention, 1999, infra App., art. 2(4).
419. See id. art. 3(1)(e)(emphasis added).
420 . "Nat iona l" mari time l iens, under a rt . 6 (b) and ( c) of the Liens and Mortgages
Conven tion 1993, ar e ex tingui shed s ix months af ter the claims which they secur e a ri se or
s ixty days after the "bona f ide" sale of the ship, whichever happens f ir st , and these mar it ime
l iens rank a fter, ra ther than be fore, ship mortgages . There a re no provi sions in the Arre st
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1968 TULANE LA W REVIEW [Vol. 73:1895 1999] MARITIME LA W PROCEDURES 1969
The Draft Articles 1997 had a bracketed provision, article
3(1)(b), which would have permitted arrest for maritime lines, other
than those under article 4 of the Maritime Liens and Mortgages
Convention 1993, which are recognized under the law of the State
where the arrest was requested. By using "recognized," the bracketed
provision would have permitted the arrest of a ship for foreign
maritime liens recognized by a state according to its conflict of lawsrules, even where equivalent maritime liens did not exist under its own
national law.?' The replacement of "recognized" by "grants or arises"
in article 3(1)(e) of the Arrest Convention 1999 in effect means that
the arrest of a ship is permitted only for foreign marit ime lien claims
that correspond to maritime liens existing under the law of the
arresting State (the United Kingdom positionj'" and not (as in the
United States?' and Canada'") for marit ime liens existing under the
properly applicable foreign law even if the equivalent claim is not
secured by a maritime lien in the arresting State. If so, such a decision,
providing for arrest for only those foreign maritime liens that are the
same as maritime liens granted under the law of the forum, is
regrettable, because it fails to take account of the true nature of amaritime lien as a substantive right, it encourages forum shopping and
is an unfortunate rejection of basic principles of private international
law.425
Arrest for claims under ship mortgages, hypothecs, and charges
of the same nature is permitted by article 3(1)(c), as is arrest for claims
related to ownership or possession of the ship at article 3(1)(d).426
Article 3(1)(a)-(b) appears to cover arrest for claims secured by
statutory rights in rem as understood in the maritime law of England
and most other British Commonwealth countries, including Canada.
These provisions permit arrest of any ship in respect of which a
maritime claim is asserted if:
(a) [Tlhe person who owned the ship at the time when the maritime
claim arose is liable for the claim and is owner of the ship when the
arrest is effected; or
(b) the demise charterer of the ship at the time when the marit ime
claim arose is liable for the claim and is demise charterer or owner ofthe ship when the arrest is effected .... 427
It is noteworthy that the relevant time for the arising of the
statutory right is properly identified as the time of arrest of the ship
(as under Canadian law), rather than the time of issue of the writ in
rem (as in the United Kingdom at present). The provision would
also encourage countries such as Canada to amend its law so as to
permit demise charterers to bind the ship in rem.
6. Sister Ship Arrest
The Arrest Convention 1999 permits sister ship arrest at article
3(2), which reads as follows:Arrest is also permissible of any other ship or ships which, when the
arrest is effected, is or are owned by the person who is liable for the
maritime claim and who was, when the claim arose:
(a) owner of the shipin respect ofwhich the marit ime claim arose; or
(b) demise charterer, time charterer orvoyage charterer of that ship.
This provision does not apply to claims in respect of ownership or
possession of a ship.428
Article 3(2) is useful, in authorizing the arrest of ships belonging
to all categories of charterers for marit ime claims on which they are
liable in respect of the "offending ship," as well as of sister ships
belonging to the owner of the "offending ship" who is personally
liable on such claims. The provision, like article 3(1) on arrest of the"offending ship" itself, also quite properly identifies the time of the
arrest, rather than the time ofthe issue of the writ inrem or the time of
the filing of the statement of claim, as the relevant moment for
determining when the right of arrest arises.
Article 3(2) may well prove to have a "fatal flaw," however, in
that it restricts sister-ship arrest to ships in the same legal ownership as
the "offending ship," rather than extending the right of arrest to all
sister ships legally or beneficially owned at the time of the arrest by
the owner of the "offending ship" who is personally liable on the
427. See id. art . 3(1)(a)-(b).
428. See id. art . 3(2).
Convention 1999, however , concerning the duration or extinction or ranking of mar it imeliens granted or arising under national law.
421. See the JlGE's report of its ninth session, JIGE(IX)4, TDIBIIGE.1I4,
LEGIMLMl41, at 'V 51.
422. See The Halcyon Is le , [ 1981] App . Cas. 221 , [1980] 2 Lloyd' s Rep . 325 , 1980
AMC 1221 (P.C).
423. See Ocean Ship Supply v. The Leah, 729 F.2d 971, 1984 AMC 2089 (4th Cir.
1984).
424. See The loannis Daskalelis [1974] S.C.R. 1248, [1974]1 Lloyd's Rep. 174,1973AMC 176 (Can.).
425. See TETLEY, INTERNATIONALONFLICT,supra note 74, at 533-87 (cr it ic izing the
United Kingdom posit ion on the nonrecognition of foreign mar it ime liens dif fering f rom
English ones, as set for th in The Halcyon Isle, [1981] App. Cas. 221, [1980]2 Lloyd's Rep.
325 , 1980 AMC 1221 (P.c.) and id. at 552-564, 564-70, supporting the recognition by United
States and Canadian courts respectively of foreign mar it ime liens under the proper law, even
ifdifferent from those recognized under the lexfori).
426. See Arrest Convention, 1999, infra App., art . 3(1)(c)-(d).
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1970 TULANE LAW REVIEW [Vol. 73:1895
maritime claim concerned. "Beneficial ownership" of ships in
marit ime law normally refers to the ownership of a party who is not
the legal (in other words, registered) owner of the vessel, but who
stands behind that legal owner and has rights over the vessel
(including notably the right to dispose of it) . A "beneficial owner"
would normally include, for example, a parent corporation or a
holding company. Today, many fleets of ships operate within largeshipowning groups, owned and controlled by the same parent
corporation or holding company, but with each vessel in the fleet or
group legally owned by (in other words, registered in the name of) a
separate, one-ship company. None of these companies is the
registered owner of any ofthe other vessels inthe fleet, but all of them
have the same "beneficial" owner, being the parent corporation or
holding company. The fact that article 3(2) of the new Convention
permits sister-ship arrest only of ships in the same legal ownership,
and not of vessels in the same beneficial ownership, fails to take
account of the reality of shipowning in contemporary maritime
commerce.
7. Limitation on Security for Release
The Arrest Convention 1999 limits the amount of security to be
required for the release of a ship from arrest, to the value of the
arrested ship.?" A similar limitation has been inserted into article
5(1)(a) with respect to the right ofre-arrest and multiple arrest.
8. Countersecurity and Wrongful Arrest
Article 6(1) of the new Convention authorizes the arresting
court to impose on the claimant the obligation to give countersecurity
for losses that may be incurred by the defendant as a result of the
arrest and for which the claimant may be found liable. These losseswould include, but not be restric ted to, losses resulting from the
arrest having been ' 'wrongful '' or "unjustified" or from excessive
security having been demanded and provided.
Article 6(2) will also enable the arresting court to grant damages
for ' 'wrongful '' or "unjustified" arrest, or for "excessive security"
having been demanded and provided, the claimant's liability in this
regard to be determined according to the law of the State where the
arrest was effected.t"
429. See id. arts. 4(2), 4(5)(b).
430. See id. art. 6(3).
1999] MARITIME LA WPROCEDURES 1971
These provisions are an important recognition of the need to
sanction arrests inspired by bad faith, malice or gross negligence on
the part of the claimant (in other words, "wrongful" arrests, as
understood in the United Kingdom, United States, Canada and other
countries of common law tradition). The Convention goes further,
however, in also permitting damages to be assessed and
countersecurity to be imposed, in respect of "unjustified" arrest (inother words, arrest effected erroneously, without proper legal
foundation, but not motivated by bad faith or gross negligence). This
position is taken by many civilian jurisdictions . Common-law
jurisdictions, on the other hand, have tended to award costs (at most)
for bonafide arrest effected by simple mistake of law. The fmal text
appears to have enshrined the civilian rule.
In America, where damages are usually very generous in
comparison to other jurisdictions, the giving of discretion to a judge to
award damages for ''wrongful'' or "unjustified" arrest or for
demanding and obtaining excessive security may seem like the
opening of the "floodgates" to "liability in an indeterminate
amount."?" This fear has proven to be unsubstantiated in civiljurisdictions, however.
9. Application ofthe Convention
Article 8(1) makes the new Convention apply to "any seagoing
ship within the jurisdiction of any State party, whether or not that
ship is flying the flag of a State Party.'r'" Itwould seem advisable to
modify this provision, so as to reintroduce the rule of article 8(2) of
the 1952 Convention, whereby a ship flying the flag of a non-
Contracting State could be arrested in a Contracting State either for a
maritime claim under article I of that Convention or for any other
claim under the law of the State of arrest. No such addition wasmade in the final text however. Rather, it appears that the
Convention will govern the arrest of all ships in States party to the
new Convention, regardless of their flags. This rule makes the
"maritime claims" enumerated in article 1(1) the sole basis on which
States party to the Convention may arrest ships of any flag orregistry.
431. See Judge Cardozo's famous dictum in Ultramares Corp. v.Touche, Niven & Co.,
255 N.Y 170 , 174 (N.Yc.A. 1931) , with re spec t to the recove rabi li ty in tort o f damages f or"pure economic loss."
432. Arres t Convention, 1999, infra App., art. 8(1).
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1972 [Vol. 73:1895ULANE LA W REVIEW
10. Convention Does Not Create Maritime Liens
Article 9 of the new Convention specifies that nothing in the
Convention shall be construed as creating a maritime lien. This
provision was originally included in article 8(3) of the Draft Articles
1997, where it did not really fit. It has been given greater
prominence in article 9. It is similar to article 9 of the 1952 ArrestConvention.
11. International Uniformity Is Essential
States must now decide whether or not to ratify or accede to the
Arrest Convention 1999 or to give effect to its provisions in their
national legislation. Because the new Convention marks a
significant advance over the 1952 text, it is to be hoped that
ratification, accession, and adherence will be forthcoming quickly
from many countries, particularly from the major shipping nations.
It is imperative that States respond positively to the challenge of
fostering greater uniformity in this vita lly important domain of
maritime law. Such an international outlook is especially necessarynow, because of the regrettable tendency of many countries, in recent
years, to "go it alone" in certain other sectors of maritime law,
notably the carriage of goods by sea. The benefits of legal
uniformity in the area of the arrest of ships, and the countervailing
disadvantages of legal disharmony in this field, are impossible to
exaggerate, from the standpoint of all partners in the maritime
community (shipowners, underwriters, claimants, judges, lawyers
and governments). But achieving the desirable goal of international
harmonization comes at a price to national law, while the desired
new international convention must not be encumbered with majordefects.?"
IX . THE CHALLENGES
In maritime law, as in all law generally, there can be no right
without some effective procedure to enforce it. Western countries,
ever conscious of the mobility of ships and the resulting risk on
433. The United States has unfor tunately never become a par ty to most international
co?ventions on private maritime law (for example, on ship collision, limitation of
shipowners' l iabili ty, and oil pollution). While itdid give effect, with some modif ications , to
the Hague Rules 1924 in its Carriage of Goods by Sea Act of 1936 (COGSA), 46 U.S.C. app.
§§ 1300-1315 (1997), the United States, unlike most other major shipping nations , has not
become a party to either the Visby Protocol of February 23, 1968, or the Visby S.D.R.
Protocol of December 21,1979, amending the Hague Rules ( the Hague/Visby Rules) or to
the Hamburg Rules 1978, on the car riage ofgoods by sea.
1999] MARITIME LA W PROCEDURES 1973
nonrecovery of marit ime claims by creditors, have been creative in
developing prejudgment security procedures suited to the demands of
justice and of international seagoing commerce. The general lex
maritima of medieval Europe gave birth to a form of enforcement
process for maritime claims, which slowly took on distinct features
in England and on the Continent. Continental countries maintainedtheir saisie conservatoire, or conservatory attachment, for use in
conjunction with the action in personam, their single form of action
for any claim. England, by comparison, under the pressure of
changing legal concepts and the conflict between the civilian
Admiralty Court and the common-law bench, was making an ever
sharper distinction, by the late seventeenth century, between the
action in rem and the action in personam and was restricting the
Admiralty judges almost exclusively to in rem enforcement. The
decli~e of in personam litigation led to the "withering" of the
~dmiraity attachment as well , which (supposedly) expired in the
eighteenth century, only to be replaced, rather imperfectly, in the
1970s by the Mareva injunction. Meanwhile, the United States,breaking its political ties with England before 1800, retained both the
att~chment and the action in rem in a uniquely rich maritime law,
while Commonwealth countries such as Canada inherited and
adapted English admiralty law and procedure. Procedures governing
arrest, attachment, saisie conservatoire, and Mareva injunctions are
now subject to detailed rules and regulations in every country, while
related procedures, such as the Anton Piller order, contribute to the
jud.icial "toolbox" available to courts in protecting the rights ofclaimants. \
There are at least two major challenges in the procedural law of
maritime claims enforcement today. At the national level the
increased regard for civil rights and their entrenchment in constitutionscan .~e expected to result sooner or later in the questioning of the
traditional legal process of ship arrest and attachment on grounds of
due p~ocess. T~e Unit~d ~tates has already responded creatively and
effectively to this questioning, At the international level, the adoption
of the Arrest Convention 1999 will challenge all countries to decide
whether the new Arrest Convention 1999 is a sufficient advance over
theArrest Convention 1952 tomerit their ratification or accession.
X. CONCLUSION
The new Arrest Convention 1999 contains changes that will be
of minor or major importance, depending on the present national law
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1974 TULANE LA W REVIEW [Vol. 73:1895
of a nation contemplating the Convention's ratification. There are
improvements and some steps backwards, which this Article has
briefly outlined above, whilst it bridges the civilian concept of saisie
conservatoire (attachment) and the common-law concept of arrest in
rem, as did the 1952 Convention.
Among the advances that the 1999 Convention marks over the1952 Convention are the following:
(1) The definition of "arrest" includes the detention of a ship
under a Ma r eva injunction.'"
(2) special legislative rights of detention of ships by
govemments, docklharbour and other public authorities are recognized
under the international conventions, rather than merely under domestic
laws and regulations.?"
(3) the definition of "maritime claims" includes important new
claims permitt ing ship arrest, notably repatriat ion costs and social
insurance contributions for crewmembers.?" insurance premiums and
P. & I. club calls relating to the ship;"? commissions and
brokerage/agency fees payable in respect of the ship?" and shipreconstruction claims.?"
(4) statutory rights in rem are more clearly recognized as
authorizing ship arrest, in respect of maritime claims created by both
owners and demise charterers.'"
(5) security for the release of ships from arrest and re-arrest is
properly limited to the value of the ship.?"
(6) countersecurity may be ordered and damages may be
awarded for all improper arrest, whether it be ''wrongful'' (in other
words, grossly negligent or ill bad faith) or "unjustified" (in other
words, erroneous), as well as where "excessive security" for the
release of the vessel is demanded and provided. (The extension of
damages and countersecurity to "unjustified" arrests is probably anatural evolution of the law in respect of ''wrongful '' arrest, and fears
about potentially unl imited liabil ity flowing from this change seem
exaggerated, especially in the light of the experience of civilian
countries, where damages have long been recoverable for both
"unjustified" and ''wrongful' ' conservatory attachments); and
434. See Arrest Convention, 1999, infra App., art. 1(2).
435. See id. art. 8(3).
436. See id. art. 1(1)(0).
437. See id. art. 1(1)(q).
438. See id. art. 1(1)(r).
439. See id. a rt . 1(J )(m).
440. See id. art. 3(J)(a)-(b).
441. See id. arts. 4(2), 4(5)(b), 5(1)(a).
1999] MARITIME LA W PROCEDURES 1975
(7) there are also interesting provisions on forum non
conveniens and on the recognition of foreign judgments at articles 7(2)
and 7(5) respectively.
On the other hand, the 1999 Arrest Convention contains some
disappointments and gaps, which may well cause many States,
including major shipping nations, to refuse ratif ication or accession.The following weaknesses in the new instrument are particularlyapparent:
(1) the list of "maritime claims" in article 1(1) is unfortunately
a "closed," rather than an "open-ended" list, thus, depriving the new
Convention of an important element of flexibility that an "open" l ist
would have afforded;
(2) special legislative rights of sale and of priority on the
?rocee~s. (as opposed to rights of mere detention) in respect of ships
immobi lized by orders of governments and public authori ties are not
mentioned in the Convention (although some measure of recognition
of these rights is afforded under the Liens and Mortgages Convention
1993);(3) the arrest of ships for foreign maritime liens differing from
those existing under the lex fori will not be permitted (article 3(1)(e)
permi ts arrest only for a mari time lien that is "granted or arises" under
the law of the State where the arrest is applied for, rather than for any
maritime lien "recognized" under that law); and
(4) the sister ship arrest provisions'? permit only the arrest of
vessels in the same legal ownership, and not of those in the same
beneficial ownership, as the "offending ship."
One therefore-wonders whether the new Convention has made
significant useful changes, changes that are sufficient to convince
those nations that are not party to the 1952 Convention to join in? And
are the changes sufficiently useful to convince the over seventy nationsthat are parties to the 1952 Convent ion to denounce that Convention
and to ratify or accede to the 1999 Convention?
442. See id. art. 3(2).
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1976 TULANE LAWREVIEW [Vol. 73:1895 1999] MARITIME LA WPROCEDURES 1977
Article 1
Definitions
For the purposes of this Convention:
1. "Maritime Claim" means a claim arising out of one or more of
the following:(a) loss or damage caused by the operation of the ship;
(b) loss of life or personal injury occurring, whether on land or
on water in direct connection with the operation of the ship;
(c)' salvage operat ions or any salvage agreement, including, .if
applicable, special compensat ion relat ing to salvage operations m
respect of a ship which by itself or its cargo threatened damage to the
environment;(d) damage or threat of damage caused by the ship to the
environment, coastline or related interests; measures taken to prevent,minimize or remove such damage; compensation for such damage;
costs of reasonable measures of reinstatement of the environment
actually undertaken or to be undertaken; loss incurred or likely to be
incurred by third parties in connection with such damage; and damage,
costs , or loss of a similar nature to those identif ied in this subparagraph
(d);(e) costs or expenses relat ing to the raising, removal, recovery,
destruction or the rendering harmless of a ship which is sunk, wrecked,
stranded or abandoned, including anything that is or has been on board
such ship, and costs or expenses relating to the preservation of an
abandoned ship and maintenance of its crew;
(f) any agreement relating to the use or hire of the ship,
whether contained in a charter party or otherwise;
(g) any agreement relating to the carriage of goods or
passengers on board the ship, whether contained in a charter party or
otherwise;(h) loss of or damage to or in connection with goods (including
luggage) carried on board the ship;
(i) general average;
G ) towage;
(k) pi lotage;
(1) goods, materials , provisions, bunkers, equipment (including
containers) supplied or services rendered to the ship for its operation,
management, preservation or maintenance;
(m) construction, reconstruction, repair, converting or equipping
of the ship;
(n) port, canal, dock, harbour and other waterway dues and
charges;(0) wages and other sums due to the master, officers and other
members of the ship's complement in respect of their employment on
the ship, including costs of repatriation and social insurance
contributions payable on their behalf;
(P) disbursements incurred on behalf of the ship or its owners;
(q) insurance premiums (including mutual insurance calls) in
respect ofthe ship, payable by or on behalf of the shipowner or demise
charterer;
(r) any commissions, brokerages or agency fees payable in
respect of the ship by or on behalf of the shipowner or demise
charterer;
(s) any dispute as to ownership or possession of the ship;
(t) any dispute between co-owners of the ship as to the
employment or earnings of the ship;
(u) a mortgage or a 'hypotheque' or a charge of the same
nature on the ship;
(v) any dispute arising out of a contract for the sale ofthe ship.
2. "Arrest" means 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 sat isfact ion of a judgment or other
enforceable instrument.~
3. "Person" means any individual or partnership or any public or
private body, whether corporate or not, including a State or any of its
constituent subdivisions.
4. "Claimant" means any person asserting a maritime claim.
5. "Court" means any competent judicial authority of a State.
APPENDIX
INTERNATIONAL CONVENTION ON THE ARREST OF SHIPS, 1999
Article 2
Powers of Arrest
1. A ship may be arrested or released from arrest only under the
author ity ofa Court of the State Party inwhich the arrest is effected.
2. A ship may only be arrested in respect of a maritime claim and
no other claim.
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1978 TULANE LAW REVIEW [Vol. 73:1895
the arrest is applied for, a judgment in respect of that claim can be
enforced against that ship byjudicial or forced sale ofthat ship.
1999] MARITIME LAW PROCEDURES
3. A ship may be arrested for the purpose of obtaining s.ecm:ity
notwithstanding that, by virtue of a jurisdiction claus~ ?r arbl~atI~n
clause in any relevant contract or otherwise, the. m~tIme. claim mrespect of which the arrest is effected is to be ad}udicated I? a State
other than the State where the arrest is effected, or IS to be arbitrated, or
is to be adjudicated subject to the law of another State.
4. Subject to the provisions of this Convention, the procedure
relating to the arrest of a ship or its release shall be g?vemed by the
law of the State inwhich the arrestwas effected or apphed for.
Article 4
Release From Arrest
I. A ship that has been arrested shall be released when sufficientsecurity has been provided in a satisfactory form, save in cases in
which a ship has been arrested inrespect of any of the maritime claims
enumerated in article 1, paragraphs l(s) and (t). In such cases, the
Court may permit the person in possession of the ship to continue
trading the ship, upon such person providing sufficient security, or
may otherwise deal with the operation of the ship during the period of
the arrest.
2. In the absence of agreement between the parties as to the
sufficiency and form of the security, the Court shall determine its
nature and the amount thereof, not exceeding the value of the arrested
ship.3. Any request for the ship to be released upon security being
provided shall not be construed as an acknowledgement ofliability nor
as a waiver ofany defense or any right to limit liability.
4. Ifa ship has been arrested ina non-party State and isnot released
although security in respect of that ship has been provided in a State
Party in respect of the same claim, that security shall be ordered to be
released on application to the Court in the State Party.
5. If in a nonparty State the ship is released upon satisfactory
security in respect of that ship being provided, any security provided in
a State Party in respect of the same claim shall be ordered to be
released to the extent that the total amount of security provided in the
two States exceeds:
(a) the claim for which the shiphas been arrested, or
(b) the value of the ship,
whichever is the lower. Such release shall , however, not be ordered
unless the security provided in the nonparty State will actually be
available to the claimant andwill be freely transferable.
6. Where, pursuant to paragraph 1 of this article security has been
provided, the person providing such security may at any time apply to
the Court to have that security reduced, modified, or cancelled.
Article 3
Exercise of Right of Arrest
1. Arrest is permissible of any ship in respect of which a maritime
claim is asserted if:
(a) the person who owned the ~hip at .the time when t~e
maritime claim arose is liable for the claim and IS owner of the ship
when the arrest is effected; or(b) the demise charterer of the .ship at. the t~me when the
maritime claim arose is liable for the claim and IS denuse charterer or
owner ofthe shipwhen the arrest is effected; or(c) the claim is based upon a mortgage or a 'hypotheque' or a
charge of the same nature on the ship; or . .(d) the claim relates to the ownership or possession of the ship;
or(e) the claim is against the owner,d~se c~artere~,manager or
operator of the ship and is secured by a mantime h~n whi~h IS granted
or arises under the law of the State where the arrest IS apphed for.
2. Arrest is also permissible of any other ship or ships which, when
the arrest is effected, is or are owned by the person who is liable forthe maritime claim and who was, when the claim arose:
(a) owner of the ship in respect of which the maritime claim
arose; or(b) demise charterer, time charterer or voyage charterer of that
ship. . . .This provision does not apply to claims m respect of ownership
or possession of a ship.
3. Notwithstanding the provisions of paragraphs 1 and 2. of this
article, the arrest of a ship which is not owned by the person liable for
the claim shall be perrnissible only if, under the law of the State where
1979
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1980 TULANE LAW REVIEW [Vol. 73:1895
Article 5
Right ofRe-arrest and Multiple Arrest
1. Where in any State a ship has already been arrested and released
or security in respect of that ship has already been provided to secure a
maritime claim, that ship shall not thereafter be rearrested or arrested
in respect of the same marit ime claim unless:
(a) the nature or amount of the security !n r~sp~ct of that ship
already provided in respect of the same claim IS inadequate, on
condition that the aggregate amount of security may not exceed the
value of the ship; or
(b) the person who has already provided the sec~ty i~ n~t, or
is unlikely to be, able to ful fil some or all of that person s obligations;
or
(c) the ship arrested or the security previously provided was
released either:
(i) upon the application or with the consent of the claimant
acting on reasonable grounds, or
(ii) because the claimant could not by taking reasonable steps
prevent the release.
2. Any other ship that would otherwise be subject to arrest in
respect ofthe same marit ime claim shall not be arrested unless:
(a) the nature or amount of the security already provided in
respect of the same claim is inadequate; or ..
(b) the provisions of paragraph 1 (b) or (c) of this article are
applicable.
3. "Release" for the purpose of this article shall not include any
unlawful release or escape from arrest .
Artic le 6
Protection of Owners and Demise Charterers of Arrested Ships
1. The Court may as a condition of the arrest of a ship, or of
permitting an arrest already effected to be maintained, impose upon
the claimant who seeks to arrest or who has procured the arrest of the
ship the obligat ion to provide security of a kind and for an amount, and
upon such terms, as may be determined by that Court for any loss
which may be incurred by the defendant as a result of the arrest, and
for which the claimant may be found liable, including but not
restricted to such loss or damage as may be incurred by that defendant
in consequence of:
1999] MARITIME LA W PROCEDURES 1981
(a) the arrest having been wrongful or unjusti fied; or
(b) excessive security having been demanded and provided.
2. The Courts of the State in which an arrest has been effected shall
have jurisdiction to determine the extent of the liabi lity, if any, of the
claimant for loss or damage caused by the arrest of a ship, including
but not restricted to such loss or damage as may be caused inconsequence of:
(a) the arrest having been wrongful or unjustified, or
(b) excessive security having been demanded and provided.
3. The liabili ty, ifany, of the claimant in accordance with paragraph
2 of this article shall be determined by application of the law of theState where the arrest was effected.
4. If a Court in another State or an arbitral tribunal is to determine
the merits of the case in accordance with the provisions of article 7,
then proceedings relating to the liabil ity of the claimant in accordance
with paragraph 2 of this artic le may be stayed pending that decision.
5. Where pursuant to paragraph 1 of this article security has beenprovided, the person providing such security may at any time apply to
the Court to have that security reduced, modified or cancelled.
Article 7
Jurisdiction on the Merits of the Case
1. The Courts of the State in which an arrest has been effected or
security provided to obtain the release of the ship shall have
jurisdiction to determine the case upon its merits, unless the parties
validly agree or have validly agreed to submit the dispute to a Court of
another State that accepts jurisdiction, or to arbitration.
2. Notwithstanding the provisions of paragraph 1 of this article, theCom;ts of the St~te in which an arrest has been effected, or security
provided to obtam the release of the ship, may refuse to exercise that
jurisdict ion where that refusal is permitted by the law of that State and
a Court of another State accepts jurisdiction.
3. In cases where a Court of the State where an arrest has been
effected or security provided to obtain the release of the ship:
(a) does not have jurisdiction to determine the case upon itsmerits; or
(b) has refused to exercise jurisdiction in accordance with the
provisions of paragraph 2 of this article, such Court may, and upon
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1982 TULANE LAW REVIEW [Vol. 73:1895
request shall, order a period of time within whic~ the ~laimant shall
bring proceedings before a competent Court or arbitral tnbunal.
4. If proceedings are not brought within the period of time ordered
in accordance with paragraph 3 of this article then the ship arrested or
the security provided shall , upon request, be ordered to be released.
5. Ifproceedings are brought within the period of time ordered inaccordance with paragraph 3 of this art icle, or if proceedings before a
competent Court or arbitral tribunal in another State are brought in the
absence of such order, any final decision resulting therefrom shall be
recognized and given effect with respect to the arreste~. ship or to the
security provided in order to obtain its release, on condition that:
(a) the defendant has been given reasonable notice of such
proceedings and a reasonable opportunity to present the case for the
defense; and
(b) such recognition is not against public policy (ordre public).
6. Nothing contained in the provisions of paragraph 5 of this article
shall restrict any further effect given to a foreign judgment or arbitral
award under the law of the State where the arrest of the ship was
effected or security provided to obtain its release.
Article 8
Application
1. This Convention shall apply to any ship within the jurisdiction of
any State Party, whether or not that ship is flying the flag of a State
Party.
2. This Convention shall not apply to any warship, naval auxiliary
or other ships owned or operated by a State and used, for the time
being, only on government noncommercial service.
3. This Convention does not affect any rights or powers vested in
any Government or its departments, or in any public authority, or in
any dock or harbour authority, under any international convention or
under any domestic law or regulation, to detain or otherwise prevent
from sailing any ship within their jurisdiction.
4. This Convention shall not affect the power of any State or Court
to make orders affecting the totality of a debtor 's assets.
5. Nothing in this Convention shall affect the application of
international conventions providing for limitation of liability, or
domestic law giving effect thereto, in the State where an arrest is
effected.
1999] MARITIME LA W PROCEDURES 1983
6. Nothing in this Convention shall modify or affect the rules of law
in.fo~ce in ~e ~t~te~ Parties relating to the arrest of any ship physically
WIthin the jurisdiction of the State of its flag procured by a person
whose habitual residence or principal place of business is in that State
or by an~ other person who has acquired a claim from such person by
subrogation, assignment or otherwise.
Article 9
Non-Creation of Maritime Liens
Nothing in this Convention shall be construed as creating amaritime lien.
Article 10
Reservations
1. Any State may, at the time of signature, ratification, acceptance,
approval, or accession, or at any time thereafter, reserve the right toexclude the application of this Convention to any or all of thefollowing:
(a) ships which are not seagoing;
(b) ships not flying the flag of a State Party;
(c) claims under article 1, paragraph 1(s).
2. . A .State m~y, when it is also a State Party to a specified treaty on
navigauon on l~and waterways, declare when signing, ratifying,
acceptmg, approvmg or acceding to this Convention that rules on
jurisdiction, .recognition ~d execution of court decisio~s provided for
m such treaties shall prevai l over the rules contained in article 7 of thisConvention.
Article 11
Depositary
This Convention shall be deposited with the Secretary-General ofthe United Nations.
Article 12
Signature, Ratification, Acceptance, Approval and Accession
1. This Convention shall be open for signature by any State at the
Headquarters of The United Nations, New York, from 1 September
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1984 TULANE LAW REVIEW [Vol. 73:1895 1999] MARITIME LAW PROCEDURES 1985
1999 to 31 August 2000 and shall thereafter remain open for
accession.
2. States may express their consent to be bound by this Convention
by:
(a) signature without reservation as to ratification, acceptance
or approval; or(b) signature subject to ratification, acceptance or approval,
followed by ratification, acceptance or approval; or
(c) accession.
3. Ratification, acceptance, approval or accession shall be effected
by the deposit of an instrument to that effect with the depositary.
Article 15
Revision and Amendment
1. A conference of States Parties for the purpose of revising or
amending this Convention shall be convened by the Secretary-General
of the United Nations at the request of one-third of the States Parties.
2. Any consent tobe bound by this Convention, expressed after the
date of entry into force of an amendment to this Convention, shall be
deemed to apply to the Convention, as amended.
Article 16
Article 13
States with More than One System of Law
1. If a State has two or more territorial units in which different
systems of law are applicable in relation to matters dealt with in this
Convention, it may at the time of signature, ratification, acceptance,approval or accession declare that this Convention shall extend to all
its territorial units or only to one or more of them and may modify this
declaration by submitting another declaration at any time.
2. Any such declaration shall be notified to the depositary and shall
state expressly the territorial units to which the Convention applies.
3. In relation to a State Party which has two or more systems oflaw
with regard to arrest of ships applicable in different territorial units,
references in this Convention to the Court of a State and the law of a
State shall be respectively construed as referring to the Court of the
relevant terri torial unit within that State and the law of the relevant
territorial unit of that State.
Denunciation
1. This Convention may be denounced by any State Party at any
time after the date on which this Convention enters into force for that
State.
2. Denunciation shall be effected by deposit of an instrument of
denunciation with the depositary.3. A denunciation shall take effect one year, or such longer period
as may be specified in the instrument of denunciation, after the receipt
of the instrument of denunciation by the depositary.
Article 14
Entry Into Force
1. This Convention shall enter into force six months following the
date on which ten States have expressed their consent to be bound by
it.
2. For a State that expresses its consent to be bound by this
Convention after the conditions for entry into force thereof have been
met, such consent shall take effect three months after the date of
expression of such consent.
Article 17
Languages
This Convention is established in a single original in the Arabic,
Chinese, English; French, Russian and Spanish languages, each text
being equally authentic.
DONE ATGeneva this twelfth day of March, one thousand nine
hundred and ninety-nine.
IN WITNESS WHEREOF the undersigned being duly
authorized by their respective Governments for that purpose have
signed this Convention.