Arrest of Ships

Comparative Overview

International

The Arrest of Sea-going Ships Convention, Brussels, 10 May 1952, entered into force 24 February 1956.

The Lisbon Draft Arrest Revision, 25 May 1985, is not in force.

And the Arrest of Ships Convention 1999, adopted by the IMO on 12 March 1999, is not yet in force. States required for coming into force: 10. States party as at 1 May 2005: 7 – Albania, Algeria, Bulgaria, Estonia, Latvia, Spain, Syrian Arab Repoublic. See UN Treaty website.

Canada

Canada has not adopted the 1952 Arrest Convention and has its own system of ship arrest, (largely modeled along the U.K.’s system). Federal Courts Act, R.S.C. 1985, c. F-7, sects. 22 and 43(2) and (3). (Action in rem and Marevainjunction, but probably no attachment or “saisie conservatoire”.) In Canada, the action in rem is no longer instituted by a writ in rem, but rather by a “statement of claim”, issued pursuant to Rules 477 and 479 and Form 477 of the Federal Court Rules 1998 (SOR 98/106, in force 25 April 1998).

United Kingdom

The U.K has ratified the 1952 Arrest Convention but has not fully implemented it. Under the Supreme Court Act 1981, U.K. 1981, c. 54, sects. 21(2), (3), (4) and (5), there is the writ in rem (now renamed the “claim form in rem”, pursuant to the Civil Procedure Rules 1998, S.I. 1998/3132, in force 26 April 1999, as amended with effect from March 25, 2002 by Part 61 (Admiralty Claims) and Practice Direction 61 (Admiralty Claims) adopted under those Rules) See aslso Civil Procedure (Amendment No. 5) Rules 2001 (adding CPR Rule 6.20(17A) re service out of the jurisdiction of certain Admiralty claims). There is no real attachment or saisie conservatoire, but the Mareva injunction (now renamed the “freezing injunction” (or “freezing order”), pursuant to the Civil Procedure Rules 1998), is recognized at sect. 37(3) of the Supreme Court Act 1981.

United States

The U.S. has its own very complete system which includes the maritime attachments and the action in rem. In virtue of the general maritime law, the U.S. system exists independently from the Supplemental Rules B & C, Supplemental Rules for Certain Admiralty and Maritime Claims, Federal Rules of Civil Procedure, 28 U.S. Code, as amended in 1985. See Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion 1986 AMC 1, 773 F. 2d 1528 (11 Cir. 1985), confirming the decision in Manro v. Almeida, 23 U.S. 473 (1825) at p. 7.

France

France is a party to the 1952 Arrest Convention which was promulgated by Decree No. 58-14 of 4 January 1958. There are two regimes of ship arrest (conservatory attachment): (a) arrest of ships belonging to states which are party to the 1952 Arrest Convention and (b) arrest of ships belonging to states which are not party to the Convention, as well as French ships in a French port by a French claimant. In the second regime, a ship may be arrested for any claim. There is sister ship arrest under both regimes, but in the second the owner of the sister ship must be personally liable on the claim. The arrest of a ship is subject to a single procedure – saisie conservatoire or attachment. See Law No. 67-5 of 3 January 1967 for ship attachment. See also Decree No. 67-967 of 27 October 1967 as amended by Decree No. 71-161 of 24 February 1971. The procedure relating to the attachment of cargo, freight and other assets (bank accounts, insurance proceeds, etc.) are subject to the general law of France on civil procedures of execution, found in Law No. 91-650 of 9 July 1991 as completed by Decree No. 92-755 of 31 July 1992.

China

The arrest of ships in the People’s Republic of China was governed by the Regulation of the Supreme People’s Court concerning Arrest of Ships prior to Litigation 1986. It is now governed, however, by the Chinese Maritime Procedure Code 2000, arts. 21-43, which came into force on 1 July 2000.

By William Tetley, Q.C.