Maritime Jurisdiction

Conflict of Laws

Issues relating to shipping and the carriage of goods often raise questions about which country’s law and courts should adjudicate disputes. For a comprehensive understanding, see sections on conflict of laws concerning European Union judgments, regulations, and the Rome Conventions on contractual and non-contractual obligations.

The Judgments Regulation permits plaintiffs, but not defendants, to sue in the courts of a State other than the defendant’s domicile in certain cases. Contract disputes may be brought in the courts of the State where the obligations were due to be performed.

Each country determines the place of performance according to its own internal rules. The obligation to deliver in accordance with a bill of lading is commonly, though not always, the place of discharge. If a claim relates to unseaworthiness from the outset, the place of performance may be where the cargo was loaded.

The Judgments Convention specifies that, in relation to the sale of goods, the place of delivery is the place of performance unless otherwise agreed. Similarly, the location for the provision of services is presumed to be where the services were or should have been rendered.

Tort claims can generally be brought in the jurisdiction where the harmful event occurred. European courts have held that this includes both the location where the damage was caused and where it occurred.

Jurisdiction may also be pre-determined by a written agreement, established practices between the parties, or within the norms of international trade or commerce, particularly where the agreement is widely recognised or regularly applied in that trade or commerce sector.

Claims in Rem

A claim in rem may be served if proceedings are served on a solicitor authorised to accept service or if the owner acknowledges service. Proceedings may be served by attaching a claim to the outside of the asset in a place reasonably visible.

Where service of in rem proceedings accompanies an arrest, the provisions of the Arrest Convention must be considered, which stipulates that a ship flying the flag of a contracting State may be arrested within the jurisdiction of any such State for a maritime claim, but not for other claims.

The Convention grants jurisdiction to the courts of the arresting country to adjudicate the case on its merits if the domestic law confers jurisdiction to those courts, if the claimant has their habitual residence or principal place of business in the arresting country, or if the claim arose within that country. Interaction between the Arrest Convention and the Judgments Convention must also be considered. In the absence of equivalent provisions in the Arrest Convention, matters should be addressed under the Judgments Convention or relevant regulations.

The Commission’s Jurisdiction Convention also provides jurisdiction to the courts of the State where an arrest could have occurred in cases arising from a collision. Claims in rem may be brought before the High Court. However, not all claims within the Admiralty jurisdiction of the High Court are in rem claims. Items involved in in rem claims may include ships, cargo, aircraft, freight, or proceeds from the sale of any of these.

Admiralty Jurisdiction

Admiralty jurisdiction encompasses the following claim types:

• Claims related to the possession or ownership of a ship or share therein;
• Questions between co-owners regarding the possession, employment, or earnings of a ship;
• Claims concerning mortgages or charges on a ship or share therein;
• Claims for damage received by or caused by a ship;
• Claims for loss of life or personal injuries resulting from a defect in a ship or due to wrongful acts, neglect, or default by owners, charterers, crew, or others responsible for ship navigation, cargo handling, or passenger embarkation;
• Claims for loss or damage to goods carried in the ship;
• Claims arising from any agreements related to the carriage of goods or hire of the ship.

Claims can also arise from contracts regarding salvage services or other similar claims, as well as claims for towage or pilotage services for ships or aircraft, and claims by a master ship or charterer for disbursements made on account of a ship.

The category of in rem claims is narrower than that of general Admiralty claims.

Ownership claims in rem include possession or ownership of a ship or shares, disputes between co-owners, and actions by a mortgagee of a ship or share therein. Maritime liens or other charges on ships, aircraft, or property are also claims in rem and may be directed against a ship, aircraft, or other property, provided the claim qualifies as a maritime claim under domestic law.

Maritime Claims

Common law maritime claims include:

• Damage caused by a ship (though statutory liability for oil pollution is unclear as a maritime lien);
• Salvage;
• Seamen’s and master’s wages and disbursements;
• Bottomry and respondentia.

A maritime claim attaches to an asset from the date of the claim, unaffected by subsequent ownership transfers. Such claims are enforceable against the vessel, even if sold without notice to the purchaser. Third parties bear no personal liability; their liability is limited to the asset’s value, typically the ship.

A maritime lien is extinguished if the asset is sold under court order. Liens apply exclusively to the primary vessel, not to any other vessels under common ownership. A statutory lien may support the arrest of a secondary vessel, though only one vessel can be arrested per claim. A second arrest may occur if the first is discharged without security.

Additional statutory liens may arise. For an in rem claim to be valid, it must be linked to a ship, and the liable person must have been, at the time of the incident, the ship’s owner, charterer, or in possession or control of it.

Where these criteria apply, an in rem action can be brought against two classes of ships: one owned or chartered by the relevant person or any other ship owned by the relevant person.

Maritime liens remain attached despite ownership changes, but statutory liens are enforceable only if the writ is issued before ownership changes. Statutory liens can only be directed against ships, not other defendant properties, but may extend to other vessels owned by the same party.

Arrest

The Arrest Convention 1952 has been replaced by the Arrest Convention 1999, effective six months after ratification by ten States. The new Convention expands categories of arrestable claims to include:

• Loss or damage from ship operation;
• Salvage;
• Environmental claims, including threat and damage;
• Claims for goods or materials supplied to a ship, such as provisions or equipment;
• Claims for construction, repair, or equipping of ships;
• Port dues and wages;
• Claims for both registered and unregistered mortgage debts;
• Claims for wreck recovery and cargo salvage;
• Insurance premiums;
• Claims related to commissions, brokerage, and fees;
• Disputes over ship sales.

The Convention permits freezing orders and allows arrest even if another State has jurisdiction over the claim. National law governs ownership questions.

Arrest is precluded if the shipowner is not personally liable, except where judicial sale is permitted. The Convention authorises additional security where initial security is insufficient. For wrongful arrests, courts may require the claimant to provide security for any shipowner loss, although this is uncommon.

Jurisdiction to adjudicate on merits is typically vested in the arresting State unless another State’s jurisdiction is agreed upon. The Convention’s provisions also extend to non-seagoing vessels, allowing States to make reservations.

Defendants may be sued in personam in Admiralty Courts for most claims within their jurisdiction, following standard service requirements. In rem proceedings may be served by attaching a copy of the initiating document to the outside of the asset in a visible location.

When a claim is against freight, service may be directed at the cargo that earned the freight or the carrying ship. A defendant may acknowledge service by providing security via a bill or bond.

Once served, proceedings proceed as in personam claims, though the defendant’s exposure is limited to the asset’s value unless they are personally liable. For example, proceedings against a new owner limit liability to the asset value.

A warrant for arrest can be issued for an in rem claim, with an affidavit detailing jurisdictional basis. Property arrested is typically a ship within State territorial waters but may include other property such as cargo.

Service of in rem proceedings enables claimants to secure against the defendant. Only the Admiralty Marshal or delegate can execute arrests (in England), detaining the ship until security is provided. If security is lacking, the Marshal may sell the asset, distributing proceeds to creditors.

Priority

In an in rem action, the court may order the survey, appraisal, or sale of the vessel. If the Marshal sells the vessel for lack of security, proceeds are distributed in this order:

• Admiralty Marshal’s costs;
• Statutory claims by harbour authorities;
• Maritime claims, in the following priority:
  • Damage liens;
  • Salvage liens;
  • Wages and master’s disbursement liens;
  • Bottomry and respondentia;
  • Registered mortgages;
  • Equitable mortgages;
  • Statutory liens.

Any remaining balance is distributed to judgment creditors, followed by the ship-owner.