MARENG 4
UNIT 4
Below you will find a list of the vocabulary that has to be researched for the test of Unit 4,followed by additional research material that should be used, all in preparation for your test of Unit 4.
VOCABULARY
An arrest of a vessel is the prerequisite for the court to establish jurisdiction. If the vessel cannot be seized, the court may have no right over the vessel. Arrest is the physical process by which, in case of theUnited States
Once seized, the court, through the marshal's service or substitute custodian, maintains possession of the vessel and the owner loses all control. To avoid this situation and its effect on commerce, the court will allow the owner to post a bond or other suitable
security. Once the security is accepted, the vessel is returned to the owner and the litigation continues with the security as the subject of execution of judgement.
Once the marshal has seized a vessel, he is obligated to preserve the vessel and its equipment. Generally, the custodian of a seized vessel should not interfere with the conduct of cargo and other operations normal to a vessel in berth unless directed so by court order. In theUnited States , the "Manual for United States
obligations and duties for the marshal and how he should perform them.
It is important to realize that the Marshal does not put hull insurance on a seized vessel. It is necessary for the owner or the Plaintiff to place adequate Port Risk Insurance on the vessel to protect their interest against loss.
If a vessel is not released by the posting of security, the court may order an interlocutory sale. An interlocutory sale means a sale prior to the completion of the litigation and the entering of a judgment. As a general rule the sale will not be allowed for four months. The rules provide for sale if the arrested property is perishable, liable to deterioration, of if the cost of keeping it is excessive or disproportionate.
Regardless as whether the sale is interlocutory or a judgment sale, the purchaser at the auction does not have any right in the vessel, until the sale is confirmed by the court. If a higher bid is received within three days by the court, the court has the option of voiding the auction and ordering a new sale. Once confirmation is received, the buyer receives
title which extinguishes all other liens and provided him with a clear title. An "in rem" action resolves claims of the entire world against the vessel and no lien for past debts can be created or asserted.
The proceeds of the sale are paid into the court and are used to satisfy any expenses incurred by the keeping of the vessel and fees to the marshal. The balance is paid to the claimants and any balance left over is paid to the owner. If the sums received are not sufficient to pay all claims, the claimants pay proportionately to the shortfall.
Unless the claimant/plaintiff who seized the vessel acts in bad faith, the owner of the vessel may not recover damages due to the arrest or for loss of profits.
A vessel sold at a marshal's sale to foreclose on a preferred ship's mortgage or maritime lien does not, as a result of the sale, become qualified as a "U.S. built" for the purpose of the Jones Act, requiring vessels trading between U.S. ports to be U.S. built. However, if the vessel is forfeited to the U.S. Government as a drug, customs or other "seizure", then when purchased from a marshal's sale, will become "U.S.
Offshore
Salvage
ADMIRALTY COURT
VOCABULARY
wreck removal
service and execution of process
seaman’s wage claim
salvors
salvage projects
salvage
pure salvage
offshore salvage
marshal
maritime lien
maritime lien
maritime law tort
letters of undertaking
higher priority
harbor salvage
general average
first preferred ship's mortgage
custodian
contract salvage
clearance salvage
arrest of a vessel
arrest of a vessel
afloat salvage
admiralty courts
"in rem"
RESEARCH MATERIAL
MARITIME ENGLISH III
UNIT 4
LEGAL SHIPPING TERMS
VESSEL ARREST
Arrest of a vessel is part of the process by which an Admiralty Court
Generally, the vessel, itself, is responsible for payment of liens, mortgages or any other maritime lien that may arise. When the owner encumbers a vessel with a First Preferred Ship's Mortgage, it is the ship that guarantees payment rather than the owner. However,
the owner may separately contract by a personal promise to pay or other type of guarantee to be personally liable.
Generally, the vessel, itself, is responsible for payment of liens, mortgages or any other maritime lien that may arise. When the owner encumbers a vessel with a First Preferred Ship's Mortgage, it is the ship that guarantees payment rather than the owner. However,
the owner may separately contract by a personal promise to pay or other type of guarantee to be personally liable.
An arrest of a vessel is the prerequisite for the court to establish jurisdiction. If the vessel cannot be seized, the court may have no right over the vessel. Arrest is the physical process by which, in case of the
Once seized, the court, through the marshal's service or substitute custodian, maintains possession of the vessel and the owner loses all control. To avoid this situation and its effect on commerce, the court will allow the owner to post a bond or other suitable
security. Once the security is accepted, the vessel is returned to the owner and the litigation continues with the security as the subject of execution of judgement.
Letters of undertaking are stipulations by the owner or his insurance
company to appear and defend any claim that is made, just as if the vessel had
been arrested. If a judgment is entered, the owner or the insurer must pay the
judgement. This amounts to stipulated jurisdiction for the admiralty court and
prevents the disruption of the owner's business during the litigation.
Once the marshal has seized a vessel, he is obligated to preserve the vessel and its equipment. Generally, the custodian of a seized vessel should not interfere with the conduct of cargo and other operations normal to a vessel in berth unless directed so by court order. In the
obligations and duties for the marshal and how he should perform them.
It is important to realize that the Marshal does not put hull insurance on a seized vessel. It is necessary for the owner or the Plaintiff to place adequate Port Risk Insurance on the vessel to protect their interest against loss.
If a vessel is not released by the posting of security, the court may order an interlocutory sale. An interlocutory sale means a sale prior to the completion of the litigation and the entering of a judgment. As a general rule the sale will not be allowed for four months. The rules provide for sale if the arrested property is perishable, liable to deterioration, of if the cost of keeping it is excessive or disproportionate.
Regardless as whether the sale is interlocutory or a judgment sale, the purchaser at the auction does not have any right in the vessel, until the sale is confirmed by the court. If a higher bid is received within three days by the court, the court has the option of voiding the auction and ordering a new sale. Once confirmation is received, the buyer receives
title which extinguishes all other liens and provided him with a clear title. An "in rem" action resolves claims of the entire world against the vessel and no lien for past debts can be created or asserted.
The proceeds of the sale are paid into the court and are used to satisfy any expenses incurred by the keeping of the vessel and fees to the marshal. The balance is paid to the claimants and any balance left over is paid to the owner. If the sums received are not sufficient to pay all claims, the claimants pay proportionately to the shortfall.
Unless the claimant/plaintiff who seized the vessel acts in bad faith, the owner of the vessel may not recover damages due to the arrest or for loss of profits.
A vessel sold at a marshal's sale to foreclose on a preferred ship's mortgage or maritime lien does not, as a result of the sale, become qualified as a "U.S. built" for the purpose of the Jones Act, requiring vessels trading between U.S. ports to be U.S. built. However, if the vessel is forfeited to the U.S. Government as a drug, customs or other "seizure", then when purchased from a marshal's sale, will become "
MARITIME LIENS
A maritime lien
is a lien on a vessel, given to secure the claim of a creditor who provided
maritime services to the vessel or who suffered an injury from the vessel's
use. Maritime liens are sometimes referred to as tacit hypothecation.
Maritime liens have little in common with other liens under the laws of most
jurisdictions.
The maritime lien has been described as "one of the
most striking peculiarities of Admiralty
law". A maritime lien constitutes a security interest upon ships of a
nature otherwise unknown to the common law or equity. It arises purely by operation
of law and exists as a claim upon the property concerned, both secret and
invisible, often given priority by statute over other forms of registered
security interest. Although
characteristics vary under the laws of different countries, it can be described
as:
- A
privileged claim,
- Upon
maritime property,
- For
service to it or damage done by it,
- Accruing
from the moment that the claim attaches,
- Travelling
with the property unconditionally,
- Enforced
by an action in rem.
A maritime lien is
a very different concept from a consensual land lien. The maritime lien arises
out of contract or tort. Only certain types of maritime claims can give rise to
a lien and the parties cannot by agreement modify the status of a claim. The
maritime lien can only be foreclosed, or "executed" in maritime
parlance; by an admiralty court acting in
rem. Priority among the same class of competing maritime liens is
determined by the time of their attachment but in inverse order: last in time
is first in right. The maritime lien is often referred to as "secret"
or "hidden" because it depends neither on possession nor notice
through filing (with the exception of the preferred ship mortgage which is
statutory). It is also said to be "indelible" because since it can
only be executed by admiralty court acting in
rem it is valid against the whole world, including a bona fide
purchaser of the vessel without regard to even bankruptcy or reorganization.
Aside from the obvious way of extinguishing a maritime lien by paying
the underlying claim, a lien can also be extinguished by laches. The in rem
decree of an admiralty court following a judicial sale extinguishes all liens
regardless of whether a claimant has participated in the proceeding.
As we have seen
earlier, the demise charter places the ship in the custody and control of the
charterer. The question then arises as to the effect on the ship of actions by
the charterer which may or may not be authorized by the owner. The law seems to
be settled on this point in that the ship itself is to be treated as a
principal, and as personally liable for the negligence of anyone who is
lawfully in possession of her.
A claim needs to be maritime in nature to give rise to a lien. This
brings us back to the section on jurisdiction, i.e. what types of structures
are deemed vessels, which contracts are maritime, which torts are maritime.
Once again, it must be stated that it is not possible to provide an exhaustive
list. A tentative rank of liens, however, can be the following:
1) Seamen's claims for wages. As Justice Gray wrote in the John G.
Stevens, "sacred liens, and, so long as a plank of the ship remains, the
sailor is entitled, against all other persons, to the proceeds as a security
for his wages.";
2) Salvage;
3) Tort. This includes both collision and personal injury claims;
4) General Average. The lien can be in favor of the vessel against cargo
or the other way around;
5) The preferred ship mortgage. As we have seen, lien status is given by
statute;
6) Supplies and repairs;
7) Towage, wharfage, pilotage, stevedoring and related services;
8) Cargo damage caused by improper loading, stowage and custody;
9) Ship's claims against cargo for unpaid freight;
10) Charter party breach either by the owner or the charterer;
11) Claims for marine pollution.
The Maritime Lien Act was enacted by Congress in 1910 and amended in
1920 with further amendments in 1971.
SEAMEN´S CLAIMS FOR WAGES
The maritime lien is extremely useful to seamen because it allows the seaman’s
claim for unpaid wages to attach to the vessel, like a barnacle, and follow the
vessel wherever it goes, even into the hands of a new buyer. The seaman can
have a maritime lien for wages, and a right against the vessel on which they
worked, regardless of whether they had a contract with the owner of the vessel,
whether the owner is bankrupt or not, and even when they can’t find the owner.
The seaman’s wage claim can only arise if the person making the claim
actually worked on the vessel. The seaman need not have actually navigated the
vessel in order to have a seaman’s wage lien, but it is helpful if they worked
on the vessel while it was navigating. For example, a musician or hairstylist
on a cruise ship can have a seaman’s wage lien because they worked on the
vessel during cruise, but a worked that labors on the vessel while in port,
such as shipyard welder, likely does not have a seaman’s wage claim.
When ship-owner are faced with a seaman’s wage claim they must consider
carefully the work by that person to ensure they are “seaman” and therefore
whether they are actually entitled to the extraordinary remedies of a maritime
lien for wages. In many cases they will not be, and this is often of benefit to
the owner and their creditors.
SALVAGE
Salvage is the process of
rescuing a ship, its cargo, or other property from peril. Salvage encompasses
rescue towing, refloating a sunken or grounded vessel, or patching or repairing
a ship. Today the protection of the environment from cargoes such as oil or
other contaminants is often considered a high priority.
"Salvors" are seamen and engineers who carry
out salvage to vessels that are not owned by themselves, and who are not
members of the vessel's original crew. When salvaging large ships, they may use
cranes,
floating dry docks and divers
to lift and repair ships for short journeys to safety towed by a tugboat. The aim
of the salvage may be to repair the vessel at a harbour or dry dock, or
to clear a channel for navigation. Another reason for salvage may be to prevent
pollution
or damage to the marine environment. Alternatively the vessel or
valuable parts of the vessel or its cargo may be recovered for its resale
value, or for scrap.
Classification of Salvage
Offshore
Salvage
The refloating of ships stranded or sunk in exposed
waters is called offshore salvage. In this type of salvage, vessels are exposed
to waves, currents and weather and are the most vulnerable and
difficult to work on. They also tend to deteriorate more rapidly than such
vessels in protected harbors. Offshore salvage may provide only a short window of
opportunity for the salvage team due to unusually high tide
or inclement weather for instance. The work window may not come around again
for as long as weeks or months and in the interim, the vessel will continue to
deteriorate. As a result, it is often imperative to work quickly. Typically, offshore
salvage is conducted from pre-outfitted salvage vessels and tugs. In addition,
portable diving facilities may be transported by helicopter
or small boat to the work area. From a tactical point of view, working in
unprotected waters is less hospitable for floating
cranes, construction tenders, dredges and equipment
barges. Plus, it
is often difficult to depend upon a stable workforce (welders, carpenters,
etc.) as all personnel must be present on site for the duration.
Harbor Salvage
The term harbor salvage refers to the salvage of vessels
stranded or sunk in sheltered waters. Such vessels are not normally subject to
the same deterioration caused by marine and weather conditions as offshore
salvage vessels are. In addition, unless the vessel to be salvaged is
obstructing navigation, then there is no need to work as swiftly as in offshore
salvage. Also, harbor pre-salvage survey and planning stages tend to be less
time consuming and environmentally dependent. It is also easier to gain access
to local labor resources and heavy equipment such as floating cranes and barges.
Cargo and Equipment Salvage
Saving the cargo and equipment aboard a vessel may be of
higher priority than saving the vessel itself. The cargo may pose an
environmental hazard or may include expensive materials such as machinery or
precious metals. In this form of salvage, the main focus is on the rapid
removal of goods and may include deliberate dissection, disassembly or
destruction of the hull.
Wreck Removal
Wreck removal focuses on the removal of hazardous or unsightly
wrecks
that have little or no salvage value. Because the objectives here are not to
save the vessel, the wrecks are usually refloated or removed by the cheapest
and most practical method possible. In many cases, hazardous
materials must be removed prior to disposing of the wreck. The most common
techniques used in wreck removal are cutting the hull into easily handled
sections or refloating the vessel and scuttling it
in deeper waters.
Afloat Salvage
The salvage of a vessel that is damaged but still afloat
is called afloat salvage. This type of salvage is mostly unobtrusive and
involves primarily damage control work such as hull welding, stabilization
(rebalancing ballast tanks and shifting cargo) and structural
bracing. The vessel can remain underway with little disruption to its original
purpose and crew.
Clearance Salvage
Clearance salvage is the coordinated removal or salvage
of numerous vessels in a harbor or waterway. It typically follows a
catastrophic event such as a tsunami, hurricane or an act of war
(i.e. Pearl Harbor). There may be multiple vessel
obstructions with varying degrees of damage due to collision, fire or
explosions.
TOOLS USED IN
SALVAGE
 |
| FLOTATION AIR B AG |
 |
| DIVING HELMET |
 |
| UNDER WATER CUTTING EQUIPMENT |
 |
| HYRADULIC SALVAGE PUMP |
 |
| AIR COMPRESOR |
 |
| HYDRAULIC WINCH |
SALVAGE
URGENCY AND COST CONSIDERATIONS
Salvage projects may vary with respect to urgency and
cost considerations. When the vessel to be returned to service is commercial,
the salvage operation is typically driven by its commercial value and impact on
navigational
waterways. Military vessels on the other hand are often salvaged at any
cost – even to exceed their operational value because of national prestige and
anti “abandonment” policies. Another consideration may be loss of revenue and
service or the cost of the space it occupies.
TYPES OF
SALVAGE
There are three type of salvage:
·
Contract salvage:
In contract salvage the owner of the property and salvor
enter into a salvage contract prior to the commencement of salvage operations
and the amount that the salvor is paid is determined by the contract. This can
be a fixed amount, based on a "time and materials" basis, or any
other terms that both parties agree to. The contract may also state that
payment is only due if the salvage operation is successful (a.k.a. "No
Cure - No Pay"), or that payment is due even if the operation is not
successful.
·
Pure Salvage:
In pure salvage (also called "merit
salvage"), there is no contract between the owner of the goods and the
salvor. The relationship is one which is implied by law. The salvor of property
under pure salvage must bring his claim for salvage in federal court, which
will award salvage based upon the "merit" of the service and the
value of the salvaged property.
Pure salvage claims are divided into
"high-order" and "low-order" salvage. In high-order
salvage, the salvor exposes himself and his crew to the risk of injury and loss
or damage to his equipment in order to salvage the property that is in peril.
Examples of high-order salvage are boarding a sinking ship in heavy weather,
boarding a ship which is on fire, raising a ship, plane, or other sunken
property, or towing a ship which is in the surf away from the shore. Low-order
salvage occurs where the salvor is exposed to little or no personal risk.
Examples of low-order salvage include towing another vessel in calm seas, supplying
a vessel with fuel, or pulling a vessel off a sand bar. Salvors performing high
order salvage receive substantially greater salvage award than those performing
low order salvage.
In order for a claim to be awarded three
requirements must be met: The property must be in peril, the services must be
rendered voluntarily (no duty to act), and finally the salvage must be
successful in whole or in part.
There are several factors that would be considered by a
court in establishing the amount of the salvor’s award. Some of these include
the difficulty of the operation, the risk involved to the salvor, the value of
the property saved, the degree of danger to which the property was exposed, and
the potential environmental impacts. It would be a rare case in which the
salvage award would be greater than 50 percent of the value of the property
salvaged. More commonly, salvage awards amount to 10 percent to 25 percent of
the value of the property.
Private boat owners, to protect themselves from salvage
laws in the event of a rescue, would be wise to clarify with their rescuer if
the operation is to be considered salvage, or simply assistance towing. If this
is not done, the boat owner may be shocked to discover that the rescuer may be
eligible for a substantial salvage award, and a lien may be placed on the
vessel if it is not paid.
- Naval Salvage:
Several Navies have Rescue Salvage
vessels which are to support their fleet and to come to the aid of vessels in
distress.
TORT
Maritime
law tort is a term covering cases where injury, loss or damage is caused to a
person or their interests by another party’s action or negligence. The word
“tort” derives from a Latinate Middle English word meaning “injury”. In this
light, maritime tort applies to cases where injury, loss or damage is caused to
a person or their interests in a maritime setting. This gives maritime tort law
a very broad range of coverage, particularly as no malice or premeditation is
required to designate liability under the tenets of tort law.
Under
maritime law, by its very nature, cases will generally be brought against a
corporation rather than an individual, as the carriage of persons or goods
carries with it an element of responsibility for their safety. Damage to goods
can, and usually does, occur as a result of inadequately secure storage on the
part of the carrier and leaves them liable to face a claim for damages. In the
case of Canal Barge Co. vs Torco Oil Co. heard in July 2000 however, the
plaintiff – a shipping company which had chartered its vessel to a company for
the transportation of a cargo of oil brought a case when the cargo left a heavy
residue. As the defendant’s negligent loading of their product was proven in
court, the case was upheld and Torco were found liable for material damages.
GENERAL AVERAGE
The law of general
average is a legal principle of maritime
law according to which all parties in a
sea venture proportionally share any losses resulting from a voluntary
sacrifice of part of the ship or cargo to save the whole
in an emergency. In the exigencies of hazards faced at sea, crew members often
have precious little time in which to determine precisely whose cargo they are
jettisoning. Thus, to avoid quarrelling that could waste valuable time, there
arose the equitable practice whereby all the merchants whose cargo landed
safely would be called on to contribute a portion, based upon a share or
percentage, to the merchant or merchants whose goods had been tossed overboard
to avert imminent peril. While general average traces its origins in ancient
maritime law, still it remains part of the admiralty law of most countries.
The first codification of general average was the York Antwerp Rules of
1890. American companies accepted it in 1949.
Admiralty courts, also known as maritime courts, are courts exercising
jurisdiction over all maritime contracts, torts, injuries and offences.
The principal matters arising in admiralty court concern shipping,
boating, insurance matters, collisions at sea, civil matters involving seamen,
passengers and cargo, salvage claims, and marine pollution. The most well-known
action by an admiralty court is the issuance of
a maritime lien against a ship, which allows the court or its appointees
to arrest and seize the ship in satisfaction of claims against it. Whether it
can be seized in other countries is governed by the admiralty courts of those
countries and any treaties that may be in effect therein.
ADMIRALTY RULES
Subject to the succeeding
provisions of this section, this Act applies in relation to:
(a) All ships, irrespective of the places of residence or domicile of
their owners; and
(b) All maritime claims, wherever arising.
This Act does
not apply in relation to a proceeding commenced before the commencement of this
Act.
This Act does not apply in
relation to a cause of action that arose:
(a) In respect of an inland waterways vessel; or
(b) In respect of the use or intended use of a ship on inland waters.
4-
Paragraph (3) (b) does not have effect in relation to a cause of action
if, at the time when the cause of action arose, the ship concerned was a
foreign ship.
Certain
rights not created or affected
The provisions of this Act (other than
section 34) do not have effect to create:
(a) A new
maritime lien or other charge; or
(b) A cause of
action that would not have existed if this Act had not been passed.
This Act binds
the Crown in all its capacities.
(2) This Act does not
authorise:
(a) A
proceeding to be commenced as an action in
rem against a government ship or government property; or
(b) The arrest,
detention or sale of a government ship or government property.
(3) Where a proceeding
has been commenced as an action in rem against
a government ship or government property, the court may, if it is satisfied
that the proceeding was so commenced in the reasonable belief that the ship was
not a government ship, or the property was not government property:
(a) Order that
the proceeding be treated as though it were a proceeding commenced as an action
in personam on the claim against a
person specified as defendant in the order; and
(b) Make such
consequential orders as are necessary.
Admiralty jurisdiction in personam
(1) Jurisdiction is
conferred on the Federal Court, the Federal Magistrates Court and on the courts
of the Territories, and the courts of the States are invested with federal
jurisdiction, in respect of proceedings commenced as actions in personam:
(a) On a
maritime claim; or
(b) On a claim
for damage done to a ship.
(2) Subsection (1)
does not confer on a court other than the Federal Court or a Supreme Court of a
Territory, or invest a court of a State other than the Supreme Court of a State
with, jurisdiction in respect of limitation proceedings.
Rights to Proceed
in Admiralty
- Admiralty actions in rem to be commenced under
this Act
In a matter of Admiralty or maritime jurisdiction, a proceeding shall
not be commenced as an action in rem against a ship or other property except as
provided by this Act.
·
Right
to proceed in rem on maritime liens
etc.
(1) A proceeding on a
maritime lien or other charge in respect of a ship or other property subject to
the lien or charge may be commenced as an action in rem against the ship or
property.
(2) A reference in
subsection (1) to a maritime lien includes a reference to a lien for:
(a) Salvage;
(b) Damage done
by a ship;
(c) Wages of
the master, or of a member of the crew, of a ship; or
(d) Master’s
disbursements.
·
Right
to proceed in rem on proprietary
maritime claims
A proceeding on a
proprietary maritime claim concerning a ship or other property may be commenced
as an action in rem against the ship
or property.
- Right to proceed in rem on owner’s liabilities
Where, in
relation to a general maritime claim concerning a ship or other property, a
relevant person:
(a) Was, when the cause of action arose, the owner or charterer of,
or in possession or control of, the ship or property; and
(b) Is, when the proceeding is commenced, the owner of the ship or
property; a proceeding on the claim may be commenced as an action in rem
against the ship or property.
·
Right to proceed in rem on demise charterer’s liabilities
Where, in relation to a maritime claim concerning a ship, a relevant
person:
(a) Was, when
the cause of action arose, the owner or charterer, or in possession or control,
of the ship; and
(b) Is, when the proceeding is commenced, a demise
charterer of the ship; a proceeding on the claim may be commenced as an action in rem against the ship.
A
proceeding on a general maritime claim concerning a ship may be commenced as an
action in rem against some other ship
if:
(a) A relevant
person in relation to the claim was, when the cause of action arose, the owner
or charterer of, or in possession or control of, the first‑mentioned ship; and
(b) That person
is, when the proceeding is commenced, the owner of the second‑mentioned ship.
(1) Where service of
initiating process in a proceeding commenced been effected on a ship, service
of initiating process in the proceeding shall not be effected on any other ship
unless the service on the first‑mentioned ship has been set aside or the
proceeding, so far as it relates to that ship, has been discontinued, dismissed
or struck out.
(2) Where service of
initiating process in a proceeding commenced has been effected on a ship,
service of initiating process in some other proceeding on the same claim
commenced as mentioned in any of those sections shall not be effected on any
other ship unless the first‑mentioned proceeding has been discontinued,
dismissed or struck out.
(3) Where a ship has
been arrested in a proceeding commenced, no other ship shall be arrested in the
proceeding unless the first‑mentioned ship:
(a) Was
invalidly arrested and has been released from arrest; or
(b) Was
unlawfully removed from the custody of the Marshal and the Marshal has not
regained custody of the ship.
(4) Where:
(a) A person has a claim that is both:
(i) A claim on a maritime lien or other charge;
and
(ii) A
general maritime claim;
In respect of a ship; and
(b) The person
has commenced a proceeding under section 19 against a surrogate ship;
A
ship or other property arrested in a proceeding on a maritime claim may not be
re‑arrested in the proceeding in relation to the claim unless the court so
orders, whether because default has been made in the performance of a guarantee
or undertaking given to procure the release of the ship or property from the
earlier arrest or for some other sufficient reason.
(1) Subject to
subsection (4):
(a) Initiating
process in a proceeding commenced as an action in rem in the Federal Court may be served on a ship or other
property; and
(b) A ship or other property may be arrested in such a proceeding;
At any place within
Australia , including a place
within the limits of the territorial sea of Australia
(2) Subject to
subsection (4), initiating process in a proceeding commenced as an action in rem in a court of a State or a
Territory may be served on a ship or other property:
(a) If, at a
time when the process was effective for service, the ship or property was
within the locality within which the court may exercise jurisdiction—at any
place within Australia, including a place within the limits of the territorial
sea of Australia; or
(b) In any
case—at any place within the State or Territory, including a place within the
limits of the territorial sea of Australia
(3) Subject to
subsection (4), in a proceeding commenced as an action in rem in a court of a State or
Territory, a ship or other property may be arrested at any place within Australia , including a place within the limits
of the territorial sea of Australia
(4) Where the arrest
of a foreign ship, or of cargo on board a foreign ship, would be inconsistent
with a right of innocent passage that is being exercised by the ship, this Act
does not authorise the service of process on the ship or the arrest of the ship
or cargo.
The
Service and Execution of Process Act 1992
does not apply to the service of initiating process on, or the arrest of, a
ship or other property under this Act.
Where,
but for the sale of a ship or other property under this Act, a proceeding could
have been commenced as an action in rem against
the ship or property, the proceeding may be commenced as an action in rem against the proceeds of the sale
that have been paid into a court under this Act.
(1) A person who
apprehends that a claim for compensation under a law (including a law of a
State or a Territory) that gives effect to provisions of a Liability Convention
may be made against the person by some other person may apply to the Federal
Court to determine the question whether the liability of the first‑mentioned
person in respect of the claim may be limited under that law.
(2) Subsection (1)
does not affect the jurisdiction of any other court.
(3) On an application
under subsection (1), the Federal Court may, in accordance with the law
referred to in that subsection:
(a) Determine
whether the applicant’s liability may be so limited and, if it may be so
limited, determine the limit of that liability;
(b) Order the
constitution of a limitation fund for the payment of claims in respect of which
the applicant is entitled to limit his or her liability; and
(c) Make such
orders as are just with respect to the administration and distribution of that
fund.
(4) Where a court has
jurisdiction under this Act in respect of a proceeding, that jurisdiction
extends to entertaining a defence in the proceeding by way of limitation of
liability under a law that gives effect to provisions of a Liability
Convention.
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