By Margareth Galho
Escritório de Advogados
The Ship Arrest Concept
According to the provisions of the International Convention on the Arrest of Sea-Going Ships, signed at Brussels 10 May 1952, capture means the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment.
The same is done targeting, for example, the intended cargo and payment of a debt, such as serious invasion of the right of many (payment of claims, credit guarantees, sale of the ship, among others), market implications, such as trouble them with the Ship-owners, charter contracts, load receptors, their insurers, the ship that has no profits for not being chartered, which leads to conflict under the contract of affreightment, the Ship-owners liquidity problems that can result in problems with the mortgage and unpaid crew.
The consequences of a seizure are numerous.
Relatively to the general procedure of seizure, an action is brought against the ship itself, because it alone is endowed with legal personality (arrest in rem – action against the thing). However, the execution is usually limited, unless it be written against “sistership” (against a sister ship), issue to be analyzed later.
Usually, arrests of ships or “sisterships” occurs only if the owner is responsible for a maritime claim or the claim is related to the ship or shipping company. The risk is to incur “wrongful arrest”, to be obtained negligently, maliciously or without cause.
The United Nations Convention for the Law of the Sea 1982 (UNCLOS/LOS Convention) provides the choice of procedure for dispute settlement. The signatories under the same document choose and indicated the International Court for the Law of the Sea (ITLOS) as the only international court settlement of disputes on issues therein specified.
UNCLOS provides for the immediate release of ships and crews in situations where the flag State of the detainee is not in accordance with provisions of the Convention.
A vessel may also be arrested if proved that all necessary duties on UNCLOS criteria of “hot pursuit” has been taken into account.
On suspicion of piracy, military forces (ships, and aircraft) the port-state may hold the ship. When the act takes place within the 200-mile, applies to the law of the coastal state, the investigations may spread by 10 days, and so the detention.
In the light of the law of the sea, when it is carried out seizure of a foreign ship, the coastal State shall notify the flag state though the appropriate channels (usually post or diplomatic transmitter) over any action against the ship and penalties resulting from such action.