INTRODUCTION
When there is a dispute over land, an employment contract or a contract for services or even goods, one party can decide to sue the other in court to invoke the adversarial system of litigation and trial. When it comes to maritime actions, things are a little different.
Maritime actions generally refer to lawsuits concerning matters pertaining to and on the sea. In the event of a dispute, a party may initiate a maritime action. This action may be initiated either against the offending party or against the ship or the vessel which is the subject matter of the dispute. An action against the offending party is referred to as an action in personam while one against the ship is termed as an action in rem.
Despite having initiated a maritime action, the suing party may also apply to the court for a warrant of arrest of the ship when an action in rem is commenced. This write-up aims to outline what a ship arrest entails, the purpose of a ship arrest and its legal basis in Ghana.
WHAT IS A SHIP ARREST?
International Convention on Arrest of Ships, 1999 defines an arrest as any detention or restriction on removal of a ship by order of a Court to secure a maritime claim but does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument. In broader terms it is the sanctioned seizure of property arising out of a maritime action in order to ensure that a judgment of court of competent jurisdiction can be satisfied.
HISTORICAL DEVELOPMENT
The concept of ship arrest arose out of the need to ensure that a defendant in a maritime claim would appear before the court and contest the suit brought against him.
A party seeking the arrest had to show that the ship or goods belonged to the defendant and were within the court’s jurisdiction.
In most common law countries, an arrest is practically undertaken by serving upon the vessel a ‘warrant of arrest’. This procedure is a very similar concept to criminal proceedings albeit this form of arrest is a civil law admiralty procedure and for different reasons. Once the plaintiff has obtained a writ in an action in rem he can apply for a warrant to arrest the ship.
At common law, arrest is restricted to maritime claims, requires the prior institution of an action in rem, and may be exercised only against ship, cargo and freight – and in many cases only against a ship.
PURPOSE OF A SHIP ARREST
When a claim involving a vessel is brought in one court, the ability of a successful litigant to obtain their reward often depends on whether there is a valuable asset (usually the ship) within legal reach of the court that can be sold to pay the claimant. It is crucial that a judgment of a court in favour of one party in a maritime claim is not rendered brutum fulmen. Consequently, the practical importance of an arrest procedure cannot be understated. If the vessel cannot be seized, the court may have no right over the vessel.
LEGAL BASIS IN GHANA
Ghana is not a party to any of the arrest conventions, however within the Ghanaian jurisdiction, ship arrest is governed by two main statutes namely: Order 62 of the High Court (Civil Procedures) Rules, C.I 47 and the Ghana Shipping Act, 2003 (ACT 645) As Amended by Ghana Maritime Security Act 2004 (ACT 675) and Ghana Shipping (Amendment) Act, 2011 (ACT 826). After a party issues a writ to commence a maritime action, a warrant of arrest may be issued at the instance of the plaintiff or a defendant who counterclaims. Order 62 Rule 1 of High Court (Civil Procedure) Rules, CI 47 rules is instructive about the process of a Ship Arrest. It provides that:
After a writ has been issued in an action, a warrant for the arrest of the property against which the action or any counterclaim in the action is brought may, subject to the provisions of this rule, be issued at the instance of the plaintiff or defendant.
A party that requires a warrant of arrest to be issued must file an application together with an affidavit either deposed to by themselves or their agent containing the name, address and occupation of the applicant for the warrant, the nature of the claim or counterclaim and the fact that the claim has not been satisfied and the nature of the property to be arrested and the name of the ship if the property to be arrested is a ship.
Such a warrant of arrest must be served. Order 62 Rule 8 provides as follows:
- Subject to subrule (2), service of a warrant of arrest or writ in an action against a ship, freight or cargo shall be effected by
- affixing the warrant or writ for a short time on any mast of the ship or on the outside of any suitable part of the ship’s superstructure; and
- on removing the warrant or writ, leaving a copy of it affixed, in the case of the warrant, in its place and in the case of the writ on a sheltered conspicuous part of the ship.
- Service of a warrant of arrest or writ in an action against freight or cargo or both shall, if the cargo has been landed or transshipped, be effected
- by placing the warrant or writ for a short time on the cargo and on removing the warrant or writ, leaving a copy of it on the cargo; or
- if the cargo is in the custody of a person who will not permit access to it, by leaving a copy of the warrant or writ with that person.
CONSEQUENCES OF SHIP ARREST
The concept of Arrest is very vital and a crucial aspect of the shipping industry.
The process of ship arrest is not an end on itself. As espoused above, it has a number of crucial functions within the bigger picture of maritime claims.
- Once a Ship is arrested, it is prevented from sailing and therefore cannot be moved without a court order.
- The arrest enables the court to keep the property as security to answer the judgment, and unaffected by chance events which may happen between the arrest and the judgment.
c. Under arrest, the ship becomes financial security for the claimant in rem. This means that unless the ship owner puts up security in order to have the ship released from arrest, the ship will be sold, and the claimants will be paid out of the proceeds of sale.
d. The arrest of ships breaks the time bar for maritime liens.
CONCLUSION
The concept of arrest is very vital and a crucial aspect of the shipping industry.
Though Ghana is not a party to any of the Arrest conventions, it has promulgated forward-looking laws which govern arrest in our Jurisdiction.
Ghana also should endeavour to sign onto the Arrest Convention, key amongst them the 1999 convention which would make our laws on Ship Arrest more robust and give foreign investors the proper and friendly climate to do more business.
Nana Osei Adutwum is a Senior Associate at Sam Okudzeto & Associates. His practice areas cover mainly civil and corporate litigation. His areas of interest include; Maritime Law, corporate and commercial law, insurance, property/land law, family law and applying ADR mechanisms to resolve disputes.
Nana Osei enjoys reading, watching movies, a football fanatic and music lover.
