SHIP ARREST IN IRELAND
Vessels can be arrested in Ireland under three separate pieces of legislation:
- The Court of Admiralty (Ireland) Act 1867 (the 1867 Act)
- The Court of Admiralty (Amendment) Act 1876
- The Jurisdictions of the Courts (Maritime Conventions) Act 1989 (the 1989 Act)
The 1867 Act introduced a right to arrest ships for claims beyond claims that gave rise to maritime liens. Under Sections 27 to 37 of Part II of the 1867 Act various types of claims may be exercised either by proceedings in rem or in personam. These claims are as follows:
All claims whatsoever relating to salvage and to enforce the payment thereof whether the service in respect of which salvage is claimed was performed on the High Seas or within the Body of any Country, or partly in one place and partly in another and whether the Wreck is found at sea or case upon Land or partly at sea and partly on land.
All claims and demands in the nature of towage and to enforce payment thereof whether such towage was performed in the body of a country or upon the High Sea.
Any claims for damage received or done by any ship whether within the body of a country or not.
Any claim for the building, equipping or repairing of any ships.
Any claim for Necessaries supplied to any ship elsewhere than in the port to which the ship belongs.
The Court of Admiralty shall have jurisdiction to decide all questions arising between the coowners regarding title to all the ownership, possession, employment and earnings of any ship registered at any port in Ireland or any share thereof, and may settle all Accounts outstanding and unsettled between the Parties in relation thereto, and may direct that the Ship or any share thereof be sold.
Any claim by a seaman of any ship for wages earned by him on board the ship whether due under a special contract or otherwise and also over a claim by the Master of any ship for wages earned by him on board the ship and for disbursements made by him on account of the ship.
Any claim in respect of any registered mortgage, registered according to the Merchant Shipping Act 1854 whether the ship or the proceeds thereof be under arrest.
Any claim by the owner or consignee or assignee or any Bill of Lading of any goods carried into any port in Ireland in any ship for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the Owner, Master or crew of the ship.
The Court of Admiralty (Amendment) Act of 1876 extended the jurisdiction of the Admiralty Court. Section 37 of the 1867 was extended to “goods shipped upon or about to be shipped upon or carried by any ship from any port in Ireland”. Section 16 added a new claim: “All claims arising out of any agreement made for or in relation to the use or hire of any ship, or for or in relation to the carriage of goods in any ship, and also all claims in tort in respect of goods carried in any ship”.
The 1989 Act gave force of law in Ireland to the 1952 Arrest Convention. A maritime claim is defined in Article 1(1) of the Arrest Convention as a claim arising out of one or more of the following:
- damage caused by any ship either in collision or otherwise
- loss of life or personal injury caused by any ship or occurring in connection with the operation of any ship
- agreement relating to the use or hire of any ship whether by charter/party or otherwise
- agreements relating to the carriage of goods in any ship whether by charter/party or otherwise
- loss of or damage to goods including baggage carried in any ship
- general average
- construction, repair or equipment of any ship or dock charges and dues
- wages of Masters, Officers, or crew
- Masters disbursements, including disbursements made by shippers, charterers or agents on behalf of a ship or her owner
- Disputes as to the title to or ownership of any ship
- Disputes between co-owners of any ship as to the ownership, possession, employment or earnings of that ship
- The mortgage or hypothecation of any ship
PROCEDURE FOR ARRESTING A VESSEL IN IRELAND
Proceedings for arresting a vessel in Ireland are generally brought against the ship ie. in rem proceedings. To arrest a vessel, a summons, a supporting affidavit, a notice or praecipe for a warrant and a warrant of arrest are required. An in rem Admiralty summons is issued by the High Court to found jurisdiction prior to the application for an arrest. The application to arrest a vessel within Irish waters is made ex parte in person before the Master or Admiralty Judge in the High Court in Dublin. The supporting affidavit must set out the details of the claim and the basis for the Court’s jurisdiction. The Affidavit must exhibit all relevant supporting documentations and evidence of the amount claimed. It must state the name and description of the party on whose behalf the warrant is to be issued, detail the nature of the claim or counter claim, the name and nature of the property to be arrested and confirmation that the claim or counter claim has not been satisfied. The affidavit needs to confirm that the vessel is within the jurisdiction i.e. within territorial waters. Finally the affidavit must contain an undertaking in writing from the solicitor applying for the issuance of the warrant of arrest to pay the fees and expenses of the Admiralty Marshall who executes the warrant for arrest. These fees include the daily fees of having a watch keeper on board the vessel whilst the vessel is under arrest and provisions for crew. There are no requirements to provide security for the cost of the arrest.
If the judge is satisfied he or she will sign the warrant for arrest and it will be then executed by the Admiralty Marshall in practice by the sending of the warrant to the local custom office at the port where the vessel is berthed. The local customs office will in turn arrest the vessel. Service of the original summons is effected by nailing or fixing it for a short period of time to the main mast or to a conspicuous part of the vessel and thereafter by leaving a true and certified copy nailed or fixed in its place. Once the summons has been served, the Irish Court has Jurisdiction to hear the claim unless the parties have expressly agreed another jurisdiction for example they may have agreed that all claims be submitted to a foreign arbitration.
The vessel remains under arrest until such time as appropriate security has been provided, for example a P&I Club letter of undertaking. Once security has been provided, an application has to be made in Court in person for the release of the vessel and release papers have to be signed to release the vessel from arrest.
Whilst the vessel is under arrest another party with a separate claim may prevent its release without prior notice to the vessel by filing a request in the Central Office of the High Court in Ireland that the vessel should not be released. This request, on a prescribed format, is known as a “caveat against release”. The information contained in the request is entered into the “caveat release book” which is retained in the Central Office of the High Court. The the request will be duly notified if the vessel is to be released and will therefore be afforded the opportunity to take over the arrest from the first arresting party.
A party may also seek to prevent the arrest of a ship by entering a caveat against the issue of the warrant for arrest. For example a ship owner who may be aware that a party may arrest his vessel for a particular claim can file such a caveat in the Central Office. In the caveat the ship owner or his appointed solicitor undertakes to enter an appearance in any in rem proceedings and provide security for the amount of any claim. The caveat is entered into the caveat warrant book and remains in force for no more than six months from the date of its issue. If a caveat has been entered the ship owner’s must within 12 days of service of proceedings provides security for the claim together with costs. The caveat in the caveat warrant book does not in itself prevent a party from taking out a warrant to arrest such a vessel. Such a party will be liable to have the warrant discharged and pay costs and damage unless he or she can demonstrate to the judge good and sufficient reason for having seeking an arrest of the vessel.
Under section 47 of the 1867 Act, an arresting party may be liable for all costs and expenses occasioned by the arrest and for damages for detention of the vessel unless he is able to demonstrate to the satisfaction of the Court that security could not have been obtained for the claim but for the arrest, or that there was a good and sufficient reason to maintain the arrest of the vessel.
The possibility of arresting a sistership was introduced into Ireland by Article 3 of the Arrest Convention. Prior to the 1989 Act no provision for arrest of a sistership existed under Irish law.
The issue was considered by the Irish Courts in the Tirgu Frumos – unreported judgement of Morris J In May 2000. The Irish Court had to ascertain whether the owner of the Tirgu Frumos was also the owner of the Costesti at the time the maritime claim arose. It was held by Mr Justice Morris that a maritime claim arose on the date the Costesti should have been delivered, as specified in a joint venture agreement. At that date, the owner of the Tirgu Frumos was not the owner of the Costesti, as the vessel was still being built and ownership had not been transferred. As the Costesti was not in the same ownership at the time the claim arose, it was held there was no entitlement to arrest the tirgu frumos.
Article 8(1) of the 1952 Arrest Convention provides that the Convention applies to any vessel flying the flag of a contracting state in the jurisdiction of any contracting state. Given that there was no jurisdiction under Irish law to arrest sisterships prior to the Convention being given force of law by the 1989 Act, a sistership arrest in Ireland is only permissible in relation to a maritime claim against the ship flying the flag of a contracting state. The Supreme Court has held that the 1952 Arrest Convention does not confer a right to arrest a ship flying the flag of a non contracting state in respect of a maritime claim against the sistership. This was held in the Supreme Court decision in the MV Marshall Gelovani  1IR159 and the M/V Kapitan Labunet  1IR430.
SALE OF ARRESTED SHIP
An order that the vessel be sold will be made in circumstances where the owner of the vessel is unable or unwilling to provide security and generally after the claimant has obtained judgement. In certain circumstances an order for sale may be made before judgement is made on the substantive claim for example if the arrested vessel is at risk of deterioration or if the owner agrees to the sale or abandon the vessel. The Court will appoint a ship broker to value the vessel and it will then usually be sold by public auction at the port of arrest “as is”. The proceeds of the sale are lodged into Court and distributed according to priority which is determined by the Court. The Admiralty Marshall expenses take priority and include all expenses incurred whilst under arrest such as watch keepers expenses. There is also stamp duty which is included in the Admiralty Marshall expenses on the proceeds of sale.Registered mortgages take priority after maritime liens for crew wages a salvors’ lien for a sunken vessel, a maritime lien for collision damage and a maritime lien for salvage. In Ireland registered mortgages over Irish registered vessels rank in priority in accordance with the date and time of registration and not the date of their creation.