|Introduction: What does a claimant who has ascertained that his claims against a ship are such as can found her arrest do? Does he report the matter to the nearest police station and have the ship’s master and crew locked away in a dingy cell? Not so. |
The procedure for ship arrest is spelt out in the Admiralty Jurisdiction Procedure Rules of the Federal High Court1 and involves the procurement of a judicial order of arrest of the ship as well as the service of that order (embodied in a warrant of arrest) upon the ship or her master.
Once this is done, the ship comes into the effectual custody of the court’s admiralty marshal and will not be permitted to sail until the arrest order is discharged, vacated or set aside.
Application to Court: In order to arrest a ship, an action against it must be undertaken in rem in the judicial division of the Federal High Court where the ship is located. An ex-parte motion disclosing a strong prima facie case for a ship’s arrest must be filed together with the originating process.
An arrest application must be accompanied by: exhibits supporting the claim;an undertaking to indemnify the ship against wrongful arrest;an undertaking to indemnify the admiralty marshal for the expenses of the arrest;statement to the effect that a search has conducted in the caveat register of the court and;an affidavit of urgency stating why the application must be heard expeditiously.
Warrant of Arrest: Where a motion ex-parte is heard and granted, a warrant of arrest will be issued. A warrant of arrest is usually served alongside a writ of summons and statement of claim by affixing sealed copies of the processes to a mast or some other conspicuous part of the ship.
It may also be served on the ship’s master or other person on board who is in control of the ship. Copies of the processes must also be served on the appropriate officers of the Nigerian Ports Authority (for example the harbour master, port manager and traffic manager).
Effect of an Arrest: As mentioned earlier, a ship under arrest will not be allowed to sail until she is released from that arrest courtesy of another order of the court. All the relevant authorities and organs of the state like the Nigerian Ports Authority, the Nigerian Navy and the maritime administration – typically notified of the warrant of arrest – will take positive steps to ensure that the order is complied with.
The arrestor will also assume responsibility for the expenses of the admiralty marshal in keeping the ship in his custody.
Conclusion: Persons claiming against ships should be careful to comply with the detailed procedural requirements, otherwise valid claims may be compromised by the additional possibility of liability in damages.
Ship interests equally need not go into panic mode on the arrest of the ship. A detailed review of the processes filed for compliance or non-compliance with arrest procedures should be the first step, possibly coupled with other extenuating measures.
—1 The court vested with exclusive first instance jurisdiction in admiralty matters.
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