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INDEX

Modern Maritime Law Volume 1: Jurisdiction and Risks

INDEX

INDEX

  • abuse of process, re-arrest 175
    • see also piercing corporate veil
  • action in personam see in personam claims/proceedings
  • action in rem see in rem claims/proceedings
  • Admiralty and Commercial Court Guide, 2011 (without notice application) 155
  • Admiralty Court
  • Admiralty Court jurisdiction 1–22
    • action in rem see action in rem
    • Arrest Convention 1952 8
    • civil law 8
    • and Common Law Courts 1, 2, 8, 9, 97, 109
    • conflict between Admiralty and common law courts 2
    • foreign aspects and extent 7
    • foreign sovereign 12–15
    • historical overview 1–4
    • international ambit 7
    • legislation since 1840 2–3
    • limitations 7
    • limits to invoking 12–15
    • need for consolidation of all courts 4
    • origins 1
    • present time 5–6
    • sources 5
    • subject matter jurisdiction 6
    • terminological changes 5–6
    • unique aspects 9–12
  • Admiralty Marshal, sale by 178–9
  • Admiralty Registry 9, 104
  • aircraft, enforcement of maritime claims 52
  • anti-suit injunctions
    • arbitration exception
    • breach of agreement
    • breach of arbitration agreement 346–8
    • cases of breach of an arbitration agreement 325–6
    • comity factor 322, 350–2, 355
    • common law vs. civil law regime 323–4
    • contract cases 340, 342–8
      • anti-suit injunctions for breach of jurisdiction agreement 342–6
      • breach of arbitration agreement 346–8
      • judicial discretion 348
      • ‘vexatious and oppressive’ 342, 343
    • declaratory relief 335–6
    • development of law 324–31
    • discord between court judgments of Member States 337–9
    • equitable damages awarded for breach of obligation to arbitrate 336–7
    • forum non-conveniens doctrine 324, 349, 350
    • Front Comor decision
    • hybrid cases 353
    • ‘interests of justice’ 354–5
    • issue estoppel 338
    • issues 324
    • lis pendens rule 340, 356
    • nature and scope 322–3
    • new trend for an anti-arbitration injunctions 339–40
    • non-contract cases 340, 348–52
      • historical development 349–50
      • modern approach (‘ends of justice’ and ‘comity’) 350–2
    • non-exclusive jurisdiction clause 341
    • outside scope of the Regulation 340–55
    • practical issues 356–7
    • precedence of New York Convention over Brussels I Regulation 336, 339
    • prohibition 331–40
      • breach of a jurisdiction agreement 331–3
      • breach of an arbitration agreement 333–4
    • recognition and enforcement issues 326–7
    • res judicata 336, 352
    • risk management 356–7
    • stay of proceedings 229
    • whether an ancillary measure 329–31
    • see also freezing injunctions
  • arbitration
    • agreement to arbitrate or litigate in particular forum 94
    • anti-suit injunctions 325–6, 327, 333–4, 336–7, 339–40, 346–8
    • arbitration awards or judgments, enforcement of claims regarding 50
    • breach of agreement 325–6, 333–4, 346–8
    • conflict between two arbitration agreements 244
    • curial law 249
    • dispute requirement for referral to arbitration 250–1
    • dispute to be covered by agreement 251–5
    • equitable damages awarded for breach of obligation to arbitrate 336–7
    • EU jurisdiction regime 309–11
    • law governing agreement 248–50
    • London Court of International Arbitration (LCIA) rules 241
    • option of one party to select 244–6
    • Section 9 of AA 1996 240
      • dispute requirement for referral to arbitration 250–1
      • dispute to be covered by agreement 251–5
      • law governing agreement 248–50
      • legal proceedings brought ‘in respect of a matter’ 255
      • preconditions to a stay of court proceedings under 241–55
      • validity requirement, arbitration agreement 241–3
      • whether conflicting or tiered dispute resolution clauses 244–8
    • Section 11 of AA 1996, scope 256–7
    • stay of English proceedings in favour of 239–57
      • preconditions to a stay of court proceedings under Section 9 241–55
      • Section 9 of AA 1996 240
    • validity requirement, arbitration agreement 241–3
    • whether conflicting or tiered dispute resolution clauses 244–8
      • option of one party to select arbitration 244–6
      • when mediation provision ineffective 246–8
  • arrest of ship
    • Admiralty Court Acts 2–4
    • aftermath 156–80
    • associated ship 118, 145, 148, 151
    • caution against 156
    • caution against release 155–6
    • conditions 116–19
    • effecting
    • groundless arrest 159, 165
    • non-truly in rem claims
      • arrest of relevant ship 117–18
      • arrest of sister ship 118
      • ownership, or possession, or control link when action brought 117
      • personal liability link when cause of action arose 117
      • subject matter of arrest 118–19
      • vs. truly in rem claims 10, 97
    • particular circumstances, release in 158
    • in personam liability
      • beneficial ownership see beneficial ownership
      • company structures and liable person 125
      • corporate veil see corporate veil; piercing corporate veil
      • liability in personam 119–51
      • meaning of ‘beneficial ownership’ 122–5
      • meaning of ‘charterer’ 120–1
      • meaning of ‘owner’ 119–20
      • meaning of ‘person in possession or control’ 121
      • minority shareholding 125–6
      • nature and function 98
      • restrictions 98–9
      • veil of one-ship companies 130–2
      • weaknesses 99
    • provision of security for claim 157–8
    • re-arrest
      • execution of foreign in rem judgment by rearrest in this jurisdiction 175–6
      • following judgment 171–4
      • with leave of court 174–5
      • prohibition by statute/conventions 176–7
      • and risk management 177
    • release from arrest 157–8
    • relevant ship 117–18
    • in rem proceedings
      • defendant in proceedings 106–7
      • effect of Indian Grace (No 2) on action in rem 108–11
      • execution of foreign in rem judgment by re-arrest in this jurisdiction 175–6
      • flaws of Indian Grace (No 2) decision 111–14
      • functions 99–106
      • issue 153–4
      • nature 99
      • service of claim form 154
      • traditional features of action in rem 107
      • warrant of arrest 155
    • ‘as of right,’ warrant as 155
    • sister ship 118, 145, 148
    • South African ship arrest and piercing corporate veil 147–51
    • subject matter of arrest 118–19
    • third party rights 156–7
    • truly in rem vs. non-truly in rem claims 116–17
    • unjustified arrest (Australia) 168
    • void for being equivalent to sequestration 102
    • warrant 154–5
    • ‘wrongdoing’ ship 148
    • wrongful 158–71
  • assets
    • dissipation of 69
    • substantive control over 78
  • assignment, of maritime lien 197
  • associated ship, arrest 118, 145, 148, 151
  • Australia, wrongful arrest 168
  • ‘backhoe dredger,’ as ship 20
  • bank duties, freezing injunctions 79
  • Belgium, wrongful arrest 170
  • beneficial ownership
    • corporate veil and beneficial owner principles for piercing the veil 126–30
    • defined 122–5
    • and privatisation of state-owned companies 142–4
    • risk management 145
  • bills of lading, ante-dated 43
  • bottomry, enforcement of claims regarding 61
  • bribery, rescinding of contract 240
  • Brussels I Regulation
  • burden of proof, forum non-conveniens doctrine 207, 210, 214, 236
  • Canada, wrongful arrest 168
  • cargo claims 201–2, 203
  • charterers
  • civil law
    • anti-suit injunctions 323–4
    • rules regarding 8
    • wrongful arrest 170
  • claims, maritime
    • cargo claims against carrying ship or owners 201–2
    • classification in different jurisdictions 189–91
    • competition see competition of claims
    • enforcement see enforcement of maritime claims
    • indemnity claims for liability to cargo owners 203
    • priorities in payment out of court fund 182–5
  • comity doctrine, anti-suit injunctions 322, 350–2, 355
  • Commercial Court 6
  • common law/Common Law Courts
    • and Admiralty Court jurisdiction 1, 2, 8, 9, 97, 109
    • anti-suit injunctions 323–4
    • wrongful arrest 168–9
  • Companies Courts, competition of claims brought in 180–1
  • competition of claims 180–1
  • conflict of laws 189–96
    • classification of claims in different jurisdictions 189–91
    • lex fori or lex causae 191–5
    • risk management 195–6
  • containers, enforcement of claims 49, 53
  • contribution claims 204
  • co-owners, claims arising as to possession, employment or earnings 30–1
  • corporate veil
    • and beneficial owner principles for piercing 126–30
    • lifting, examples 132–5
    • of one-ship companies 130–2, 134
    • piercing see piercing corporate veil
  • cost orders, and piercing corporate veil 145–7
  • court fund
  • Court of Justice of the European Union (CJEU) 261, 268
  • court order, bank duty not to be in contempt of 79
  • crassa negligentia test, wrongful arrest
    • Arrest Convention 1999 171
    • comparison of different jurisdictions 168, 169
    • inappropriateness of criminal law test to wrongful arrest of ships 163, 164
    • lifting the corporate veil 133
    • origin 159–60
    • other common law jurisdictions 169
    • release in particular circumstances 158
    • see also wrongful arrest
  • creditors, maritime 102
  • Crown, ships of 12
  • Crown Court 2
  • curial law, arbitration 249
  • damage claims
    • damage done by a ship
      • navigation act requirement 35
      • pollution damage included 35
      • whether economic loss claim can be enforced 36
      • whether limited to property only 33–4
      • whether physical contact necessary to cause damage 34–5
    • damage received by a ship 32
    • pollution damage 35
  • deceit, tort of 43
  • declaratory proceedings, ‘same cause of action’ 271
  • demise charterer, and meaning of ‘beneficial ownership’ 122, 123
  • Denmark, wrongful arrest 170
  • detention, preservation of statutory right 182
  • disbursements, enforcement of claims in respect of 59–61
  • dishonesty, evidence of 69
  • dismissal of claim, on time bar grounds 200–4
    • cargo claims against carrying ship or owners 201–2
    • contribution claims 204
    • indemnity claims for liability to cargo owners 203
    • loss of life or personal injury claims against carrying ship 203
    • passengers carried on passenger vessels 203–4
    • property or personal injury/loss of life claims 204
  • dissipation of assets, freezing injunctions 69
  • domicile rule
    • date of seisin 275, 277
    • exceptions to 265
    • Kalfelis test 267
    • mandatory derogation from 266
    • optional derogation from 266–8
    • piercing corporate veil 146
    • provisions of 264
  • drilling units, whether included within definition of ship 21
  • duty of care, to subsidiary company 129–30
  • economic loss claims, enforcement 36
  • enforcement of maritime claims 23–63
    • of charterers 59–61
    • claims enforceable under Section 20(2) of SCA 1981 28–63
      • arbitration awards or judgments 50
      • arising between co-owners of a ship as to possession, employment or earnings 30–1
      • bottomry, claims arising out of 61
      • carriage of goods on ship, agreement relating to 43–51
      • construction, repair or equipment of ship or dock charges/dues 54–5
      • containers 49, 53
      • damage done by a ship 33–6
      • damage received by a ship 32
      • ‘direct connection’ test 48, 51
      • disbursements 59–61
      • excluded claims 47–51
      • forfeiture or condemnation of a ship 62–3
      • general average acts 61
      • goods carried on ship, claims for loss of or damage to 42–3
      • goods or materials supplied to ship for operations or maintenance 52–4
      • guarantor, claims brought in rem against 51
      • insurance premiums 47–9
      • loss of life or personal injury 36–42
      • miscellaneous claims 47
      • payments under an FFA 50
      • pilotage, in respect of ship or aircraft 52
      • possession or ownership of a ship or of a share therein 28–30
      • in respect of a mortgage or of charge on a ship or any share therein 31–2
      • restoration of ship or goods after seizure or droits of Admiralty 62–3
      • salvage services 51
      • ship agents’ claims 53–4, 59–61
      • ‘supplied to a ship’ 53
      • tort, claims in 40–1, 43–4
      • towage, in respect of ship or aircraft 52
      • use or hire of a ship 44–7
      • wages of master or crew 55–9
    • freezing injunctions see freezing injunctions
    • interim relief 77
    • liens, maritime see liens, maritime
    • of ship agents 53–4, 59–61
    • statute as tool 23
    • statutory rights in rem 9, 25
    • subject matter jurisdiction 24–5
    • tracing orders 77
    • see also competition of claims; in personam claims/proceedings; in rem claims/proceedings
  • equitable liens 27
  • EU jurisdiction regime 259–319
    • aims and objectives 261
    • arbitration exception 309–11
    • background 260–3
    • ban of forum non-conveniens doctrine 289–97
      • defendant domiciled in a third State 295–7
      • defendant domiciled in a third State, where natural forum a Member State 294–5
      • defendant domiciled in a third State with proceedings in two Member States 292–4
      • defendant domiciled in Member State, where natural forum a third State 290–1
      • limitation of liability actions 295–7
      • proceeding in a third State and in a Member State 291–2
    • Brussels I Regulation
      • need for review 262–3
      • objectives 262
    • certainty and mutual trust 261
    • choice of court of a non-Member State 308
    • Council of European Union 314–19
    • entering an appearance 308
    • European Parliament 314–19
    • exclusive jurisdiction 309
    • exequatur, abolition 314
    • identical actions as between Member States 269–79
      • pending proceedings 276–7
      • in personam claims 272
      • power of court first seised 277–9
      • in rem and in personam claims 272–3
      • res judicata 273–4
      • ‘same cause of action’ 270–2
      • ‘between same parties’ 272–4
      • when court seised of proceedings 274–5
    • inception 260–1
    • lis pendens 269, 332
    • lis pendens rule, exceptions to general rule 306–7
    • multiple proceedings between Member States and third States 281–3
      • lis pendens rule 281–3
      • pending proceedings in court of a third State 281–3
      • related actions 283
    • multiple proceedings within Member States 269–81
    • prorogation of jurisdiction 297–308
      • choice of court agreements under Art 23 of Brussels I Regulation 297–8
      • choice of court agreements under Art 25 of Recast Regulation 298–307
    • protection of defendants domiciled in EU Member States 261
    • protective measures 311–13
      • application as between courts of Member States 311–13
      • limitations of Article 35 312
      • Van Uden status 312–14
    • public policy issue 314
    • Recast Regulation 263–9
      • application 263
      • conferment to specialised conventions 268–9
      • domicile rule 264
      • exceptions to domicile rule 265
      • interpretation of concepts 268
      • mandatory derogation from domicile rule 266
      • optional derogation from domicile rule 266–8
      • when national rules applicable 264–5
    • Recast Regulation (Art 25), choice of agreements under 298–307
      • conditions of application 299–306
      • conferring jurisdiction 307
      • consensus 300–1
      • evidenced in writing requirement 305
      • exceptions to general rule of lis pendens 306–7
      • form 305–6
      • substantive validity 301, 302
      • validity 301–4
    • reciprocal recognition and enforcement of judgments 261
    • recognition and enforcement of judgments 313–14
    • related actions as between Member States 279–81
    • specialised Conventions 283–8
      • Arrest Convention 1952, jurisdiction under 286
      • Arrest Convention 1999 288
      • Collision Convention 1952 288
      • Deichland trap, avoidance 287
      • delegation of jurisdiction by Article 71 to 285–8
      • interpretation of Article 71 284–5
      • submission to jurisdiction and bail 287
  • European Court of Justice (ECJ) 261
  • European Union see EU jurisdiction regime
  • expert evidence
    • condition of ship prior to sale 179
    • stay of proceedings 227–8
  • fieri facias, writ of 174
  • Finland, wrongful arrest 170
  • foreign sovereign, Admiralty Court jurisdiction 12–15
  • forum non-conveniens doctrine
    • ‘1936’ rule
    • anti-suit injunctions 324, 349, 350
    • balance of convenience 207
    • ban of see under EU jurisdiction regime
    • burden of proof 207, 210, 214, 236
    • certainty and mutual trust 261
    • Collision Convention 1952 288
    • conflicting dispute resolution clauses 245
    • defendant domiciled in a third State, proceedings in two Member States 292, 293, 294
    • defendant domiciled in a third State, where natural forum a Member State 294–5
    • defendant domiciled in Member State, where natural forum a third State 290
    • effect of founding jurisdiction as of right 213
    • EU jurisdiction regime 265
    • first stage (connecting factors) 213
    • general principle 213
    • gradual incorporation of Scottish doctrine into English law 208–12
    • jurisdiction not exercised 206
    • lis pendens rule 269, 283
    • national rules, application 265
    • natural forum 211
    • present formula 212–17
    • proceeding in a third State and in a Member State 291
    • related actions as between Member States 282
    • second stage (all the circumstances) 214
    • service out of the jurisdiction compared 218–22
    • Spiliada decision, impact upon 217–18, 293
    • stay on grounds of 206–25
    • treatment of a legitimate personal or juridical advantage 214–17
    • ‘vexatious and oppressive’ wording 206, 208, 209
    • see also forum shopping
  • forum shopping
    • non-exclusive jurisdiction clause 237
    • and risk management 236–9
    • by way of limitation actions 222–5
  • France, wrongful arrest 170
  • fraud
    • and freezing injunctions 76, 77
    • one-ship companies, corporate veil 131
    • rescinding of contract 240
  • freezing injunctions 65–79
    • as ancillary remedy 65
    • bank, duty of 79
    • cause-of-action defendant vs. non-cause-of-action defendant 78
    • comparison with other security measures 68
    • as discretionary remedy 65
    • dissipation of assets 69
    • extended jurisdiction for 70–6
    • extent of jurisdiction to third parties 77–8
    • and fraud 76, 77
    • free-standing 71–2
    • as Mareva injunctions 66
    • nature, scope and objective 66–7
    • origins of power to grant 66
    • person obtaining, no duty of care owed to 79
    • previous ‘Siskina’ barrier 71
    • requirements to be granted 68–70
    • ‘same cause of action’ 271
    • worldwide 72–6
    • see also anti-suit injunctions
  • Front Comor decision
  • general average acts, enforcement of claims regarding 61
  • Germany, wrongful arrest 170
  • goods, enforcement of claims regarding
    • agreement relating to carriage 43–51
    • carried on ship, loss or damage 42–3
    • containers 53
    • restoration following seizure or for droits of Admiralty, claims for 62–3
    • ship agents’ claims 53–4, 59–61
    • supplied for operations or maintenance 52–4
  • guarantor, claims brought in rem against 51
  • Heidelberg Report 2007, Brussels I Regulation 262, 310
  • High Court of Admiralty 1, 2
    • see also Admiralty Court jurisdiction
  • Hong Kong, wrongful arrest 169
  • hybrid cases 107, 111, 353
  • Indian Grace (No 2), effect on action in rem
    • Brussels Convention and CJJA 1982 114
    • evaluation 115–16
    • factual background 108
    • flaws of decision 111–14
      • misapplication of procedural theory decisions 112–13
      • sovereign immunity cases as inappropriate parallel 113–14
    • historical background 109–10
    • and maritime liens 110
    • other relevant authorities 111
    • res judicata 109
    • sovereign immunity cases 110–11
  • in personam claims/proceedings
    • beneficial ownership see beneficial ownership
    • breach of foreign jurisdiction clause 234
    • company structures and liable person 125
    • corporate veil
      • and beneficial owner 126–30
      • difference between lifting and piercing 132–5
      • of one-ship companies 130–2
      • piercing see piercing corporate veil
    • Crown ships 12
    • distribution of the court fund 187, 188
    • EU jurisdiction regime 272–3
    • Indian Grace (No 2) decision 108, 115
    • international ambit of Admiralty jurisdiction 7
    • jurisdiction bases 200
    • jurisdiction not exercised 205
    • liability in personam 119–51
    • meaning of ‘beneficial ownership’ 122–5
    • meaning of ‘charterer’ 120–1
    • meaning of ‘owner’ 119–20
    • meaning of ‘person in possession or control’ 121
    • minority shareholding 125–6
    • nature and function 98
    • old action (maritime attachment or quasi in rem) 11
    • origin of Admiralty Court jurisdiction 3
    • and personal service of claim form 98
    • procedural theory decisions, misapplication 112
    • res judicata 272, 273
    • restrictions imposed 98–9
    • Rule B1 attachment (Supplemental Rules for Admiralty or Maritime Claims of the Federal Rules of Civil Procedure), US 85–6
    • rules for service 12
    • statute as tool for enforcement 23
    • terminology 5
    • weaknesses of proceedings 99
  • in rem claims/proceedings
    • arrest of ship
      • caution against release 155–6
      • service of claim form 154
    • beneficial ownership, risk management 145
    • breach of foreign jurisdiction clause 234
    • classification of claims in different jurisdictions 190
    • competition of claims 180
    • containers 53
    • defendant in proceedings 106–7
    • distribution of the court fund 187, 188
    • EU jurisdiction regime 272
    • execution of foreign in rem judgment by rearrest in this jurisdiction 175–6
    • foundation 9
    • functions of proceedings 99–106
      • contingent security right 104
      • crystallisation of non-truly in rem claims on the property 28, 100–4
      • meaning of ‘action is brought’ 104–5
      • meaning of ‘jurisdiction is invoked’ 105–6
      • Monica S case 100–4
    • fundamental value of in rem proceeding 11
    • against guarantor 51
    • Indian Grace (No 2), effect on
      • Brussels Convention and CJJA 1982 114
      • evaluation 115–16
      • factual background 108
      • flaws of decision 111–14
      • historical background 109–10
      • other relevant authorities 111
      • procedural theory decisions, misapplication 112–13
      • res judicata 109
      • sovereign immunity cases 110–11, 113–14
    • Indian Grace (No 2), effect on action in rem 115
    • issue of proceedings 153–4
    • issuing of proceedings, effect 10
    • jurisdiction bases 200
    • nature of proceedings 99
    • origin of Admiralty Court jurisdiction 3
    • procedural theory decisions, misapplication 112
    • quasi in rem proceedings 10, 11
    • re-arrest 175, 176
    • registration in Admiralty Registry 9, 104
    • and right to detain 184
    • service of claim form 154
    • service of proceedings, effect 11
    • ship agents’ claims 54
    • ship personification vs. procedure 10
    • statute as tool for enforcement 23
    • statutory rights 9, 25
    • subject matter of proceedings (the ship) 15–22
    • terminology 5
    • tort, claims in 43
    • traditional features 107
    • truly in rem claims, vs. non-truly in rem claims 10, 97
    • wages of master or crew, claims for 55
    • writs of prohibition 109
    • wrongful arrest 164
  • insurance premiums, claims for 47–9
  • Inter-Club NYPE Agreement 203
  • ‘interests of justice’, anti-suit injunctions 354–5
  • interim relief 77
  • issue estoppel, anti-suit injunctions 338
  • jet ski, as ‘ship’ 17–18
  • Jeune, Sir Francis 106, 110
  • jurisdiction
    • Admiralty Court see Admiralty Court jurisdiction
    • ambiguity of term 65
    • bases 199–200
    • breach of agreement 331–3
    • classification of claims in different jurisdictions 189–91
    • common law 168–9
    • defendants’ tangible or intangible personal property within (Rule B1
    • attachment) 84–5
    • equitable 66
    • European Union regime see EU jurisdiction regime
    • exclusive 309, 345–6
    • extended 70–6
    • extent of jurisdiction to third parties 77–8
    • foreign jurisdiction agreement, stay of English proceedings on ground of 225–39
    • freezing injunctions
      • extended jurisdiction 70–6
      • extent of jurisdiction to third parties 77–8
    • meaning of ‘jurisdiction is invoked’ 105–6
    • no leave for service out 205–6
    • non-exclusive jurisdiction clause 237
    • not exercised or discontinued 200, 205–6
    • to prohibit dealing with a ship 30
    • purpose 66
    • service of process base 200
    • service out of
    • special, provided against a third party 146
    • subject matter jurisdiction 6, 24–5
  • lex fori (law of the forum)
    • or lex causae 191–5
    • or lex loci contractus 32, 191
    • priorities in payment of claims out of court fund 182
  • liens, maritime
    • action in rem 9
    • advantage over other statutory rights in rem 28
    • applicable law 189–96
    • assignment 197
    • claims attracting 27
    • compared to a mortgage on a ship 27
    • contractual 190
    • equitable 27
    • extinction 196
    • Indian Grace (No 2) case 110
    • means of enforcement 28
    • nature 25–7
    • and possessory liens 27
    • ranking pari passu 187, 188
    • ship-repairers 185–7
    • statutory 25
    • transferability 196–8
    • unable to be registered 104
    • whether loss of life/personal injury claims attract 41–2
  • lifting the corporate veil
    • defined 132
    • examples 132–5
    • vs. piercing the corporate veil 132–5
  • limitation fund, transferability of claim to 184–5
  • limitation periods, wages claims 204
  • lis pendens 269, 332
  • lis pendens rule 281–3, 317
    • anti-suit injunctions 340, 356
    • and arbitration exception 327
    • breach 338–9
    • certainty and mutual trust 261
    • conferment to specialised conventions 269
    • defendant domiciled in a third State, proceedings in two Member States 293
    • defendant domiciled in a third State, where natural forum a Member State 295
    • delegation of jurisdiction by Article 71 to specialised conventions 285, 286
    • EU jurisdiction regime 261, 262, 269, 270
    • exceptions to 306–7
    • forum non-conveniens doctrine 211, 283
      • ban of 289
    • identical actions as between Member States 269
    • limitation of liability actions 297
    • national rules, application 265
    • when court first seised of proceedings 274
  • Lord High Admiral 1, 2, 3, 4
  • loss of life or personal injury claims
    • defects in ship, apparel or equipment 38–40
    • dismissal of claim, on time bar grounds 203, 204
    • by foreigners against foreign ship for tort committed on high seas 40–1
    • incidents occurring on board another ship 37
    • maritime lien, whether attracting 41–2
    • origins of statutory provision 36
    • or property 204
    • wrongful act, neglect or default in navigation or management of a ship 37
  • mala fides test
    • confusion as to meaning 165
    • inappropriateness of criminal law test to wrongful arrest of ships 163
    • lifting the corporate veil 133
    • meaning 159
    • release in particular circumstances 158
    • wrongful arrest 158, 159, 163, 165
    • see also crassa negligentia test, wrongful arrest; wrongful arrest
  • malice test, wrongful arrest 159–60
  • malicious prosecution, stringent test 160–2
  • Mareva injunction see freezing injunctions
  • master of ship, claims by
  • minority shareholding, action in personam 125–6
  • mortgages or charges on ship, claims in respect of
    • lex fori or lex loci contractus 32
    • maritime lien compared to mortgage on a ship 27
    • mortgagee’s protection 31–2
    • whether mere charge on ship protected 32
  • navigation
    • damage claims 35
    • definition of a ship 19–21
    • loss of life or personal injury claims 37
  • necessaries
    • Admiralty Court jurisdiction 3, 4
    • applicable law to maritime liens and conflict of laws 190–1, 193, 194, 195
    • enforcement of maritime claims 39, 53, 54
    • in rem claims/proceedings 99, 101
  • neglect, loss of life or personal injury claims 37
  • New York Produce Exchange (NYPE) 119, 203
  • Nigeria, wrongful arrest 168
  • non-truly in rem claims
    • arrest of relevant ship 117–18
    • arrest of sister ship 118
    • crystallisation of 28, 100–4
    • ownership or possession, or control link when action brought 117
    • personal liability link when cause of action arose 117
    • subject matter of arrest 118–19
    • vs. truly in rem claims 10, 97
  • Norway, wrongful arrest 170
  • Nuyts Report 2007, Brussels I Regulation, 262
  • one-ship companies, corporate veil 130–2 , 134
  • ownership or possession
    • beneficial ownership
      • meaning of ‘beneficial ownership’ 122–5
      • principles for piercing the veil 126–30
      • and privatisation of state-owned companies 142–4
      • risk management 145
    • cargo claims against owners 201–2
    • jurisdiction to prohibit dealing with a ship 30
    • maritime claims 28–30
    • meaning of ‘owner’ 119–20
    • meaning of ‘person in possession or control’ 121
    • non-truly in rem claims 117
    • statutory or inherent power of court 28
    • substantive vs. procedural rights 30
  • parent company liability, corporate veil and beneficial owner principles 129
  • passengers, claims of 203–4
  • piercing corporate veil 135–41
    • ancillary relief proceedings 140
    • applications to vacate attachment
      • amendment 93
      • de novo review 93
    • post attachment hearings (Aqua Stoli case) 90–2
    • post-attachment procedures 93
    • beneficial owner principles 126–30
    • conditions 88
    • and cost orders 145–7
    • domicile rule 146
    • effect on contractual transactions 138–41
    • façade, concealing true facts 135
    • factors or indicators of dominated corporation 88–9
    • ‘flag of convenience’ state 135
    • vs. lifting the corporate veil 132–5
    • risks faced by defendants 89–90
    • ‘sham transfers’ 136
    • South African ship arrest 147–51
    • substitute security, providing 93
    • ‘wrongdoing’ ship arrest 148
    • see also corporate veil; Rule B1 attachment (Supplemental Rules for Admiralty or Maritime Claims of the Federal Rules of Civil Procedure), US
  • pilotage, enforcement of claims in respect of ship or aircraft 52
  • Poland, wrongful arrest 170
  • pollution damage, claims enforceable under Section 20(2) of SCA 1981 35
  • port authorities
    • detention, preservation of statutory right 182
    • practical issues 185
    • statutory powers 182–5
    • transferability of claim to limitation fund or court fund 184–5
    • whether able to sell ship free of encumbrances 182–4
  • Portugal, wrongful arrest 170
  • possession or ownership of a ship or of share, maritime claims see ownership or possession
  • possessory liens
    • and maritime liens 27
    • ship-repairers, lien of 185
  • privatisation, and beneficial ownership 142–4
  • prohibition, writs of 109
  • public policy issue
    • anti-suit injunctions 339
    • EU jurisdiction regime 314
  • quasi in rem proceedings 10, 11
  • ratio decidendi 112, 210
  • re-arrest
    • execution of foreign in rem judgment by re-arrest in this jurisdiction 175–6
    • following judgment 171–4
    • with leave of court 174–5
    • prohibition by statute/conventions 176–7
    • and risk management 177
  • Recast Regulation
    • application 263
    • conferment to specialised conventions 268–9
    • domicile rule 264
      • exceptions to 265
      • mandatory derogation from 266
      • optional derogation from 266–8
    • interpretation of concepts 268
    • when national rules applicable 264–5
  • recognition and enforcement of judgments, EU jurisdiction regime 313–14
  • res judicata
    • anti-suit injunctions 336, 352
    • EU jurisdiction regime 273–4
    • Indian Grace (No 2), effect on action in rem 115
    • in personam claims 272, 273
    • in rem claims 108, 109, 115
  • risk management
    • anti-suit injunctions 356–7
    • beneficial ownership 145
    • conflict of laws 195–6
    • and forum shopping 236–9
    • re-arrest 177
  • rowing boat, as ‘ship’ 15
  • Rule B1 attachment (Supplemental Rules for Admiralty or Maritime Claims of the Federal Rules of Civil Procedure), US 80–96
    • agreement to arbitrate or litigate in particular forum 94
    • counterclaims and countersecurity 95
    • distinction from other forms of security 80–1
    • history 80
    • procedural requirements
      • amount sued for 86
      • answer by garnishee/defendant 87
      • court review 87–8
      • garnishees named in process 87
      • no bond requirement 86–7
      • notice to defendant 86
      • in personam action (filing complaint with affidavit) 85–6
    • purpose 80
    • substantive requirements
      • Admiralty or maritime claim 81–2
      • defendant not to be found within the district 82–3
      • defendants’ tangible or intangible personal property within jurisdiction 84–5
      • ‘found’ within district determined at time of filing 83
      • general appearance not ending effects of valid attachment 83–4
    • wrongful attachment principles and remedies 95–6
    • see also piercing corporate veil
  • rule of law, ‘same cause of action’ 270
  • sale
    • by Admiralty Marshal 178–9
    • expert evidence on condition prior to 179
    • ordered pending action (pendente lite) 179
    • port authorities, statutory powers 182–5
  • salvage claims 51, 204
  • Scandinavian countries, wrongful arrest 170
  • sculling boat, as ‘ship’ 15
  • ‘seagoing’, defined 18
  • security for maritime claims
    • arrest of ship 157–8
    • vs. freezing injunctions 67–8
    • release in particular circumstances 158
    • substitute security, providing 93
    • see also Rule B1 attachment (Supplemental Rules for Admiralty or Maritime Claims of the Federal Rules of Civil Procedure), US
  • separability principle, stay of proceedings 240
  • sequestration, arrest void for being equivalent to 102
  • ship
    • action in rem 15–22
    • another, incidents occurring on board 37
    • arrest of see arrest of ship
    • associated, arrest of 118, 145, 148, 151
    • construction, repair or equipment: claims in respect of 54–5
    • Crown ships 12
    • damage done by
      • navigation act requirement 35
      • pollution damage included 35
      • whether economic loss claim can be enforced 36
      • whether limited to property only 33–4
      • whether physical contact necessary to cause damage 34–5
    • damage received by 32
    • defects in ship, apparel or equipment 38–40
    • defined see ship, definition
    • dock charges or dues, claims in respect of 54–5
    • foreign, claims by foreigners against for tort committed on the high seas 40–1
    • forfeiture or condemnation, claims for 62–3
    • goods carried on, claims for loss of or damage to 42–3
    • goods or materials supplied to for operations or maintenance, claims in respect of 52–4
    • jurisdiction to prohibit dealing 30
    • master or crew, wages claims 55–9
    • mortgages or charges, claims in respect of
      • lex fori or lex loci contractus 32
      • maritime lien compared to mortgage on a ship 27
      • mortgagee’s protection 31–2
      • whether mere charge on ship protected 32
    • one-ship companies, corporate veil 130–2, 134
    • personification vs. procedure, in action in rem 10
    • possession or ownership, maritime claims
      • jurisdiction to prohibit dealing with a ship 30
      • ownership or possession 29–30
      • statutory or inherent power of court 28
      • substantive vs. procedural rights 30
    • restoration following seizure or for droits of Admiralty, claims for 62–3
    • rowing boat as 15
    • sale see sale
    • sculling boat as 15
    • sister, arrest of 118, 145, 148
    • towage in respect of, enforcement of claims 52
    • use or hire of
      • claims arising out of related agreement 44–5
      • specification of ship 45–7
    • whether mere charge protected 32
    • ‘wrongdoing’ 148
    • wrongful act, neglect or default in navigation or management of 37
  • ship, definition 15–21
    • importance 15
    • modern definitions 17–21
    • old authorities 16–17
    • physical appearance 17–18
    • as problematic 16
    • used in navigation 19–21
    • whether drilling units included within 21
    • see also ship
  • shippers, enforcement of claims by 59–61
  • ship-repairers, lien of 185–7
  • Singapore, wrongful arrest 169
  • sister ship, arrest 118, 145, 148
  • slot charterer, and meaning of ‘charterer’ 120
  • South Africa
    • piercing corporate veil 147–51
    • wrongful arrest 168
  • special jurisdiction, provided against third party 146
  • specific performance, ‘same cause of action’ 271
  • Spiliada decision
    • connecting factors 232–3
    • impact upon forum non-conveniens doctrine 217–18
  • stay of proceedings
    • arbitration, in favour of 239–57
      • preconditions to a stay of court proceedings under Section 9 241–55
      • Section 9 of AA 1996 240
    • ‘broad judicial discretion’ 229
    • English proceedings, on ground of a foreign jurisdiction agreement 225–39
      • availability of factual evidence in England not in itself a strong cause 233–4
      • breach of foreign jurisdiction clause 226–333
      • expert evidence in England 227–8
      • general principle 226
      • matters not constituting a strong cause or reason 233–6
      • multiplicity of proceedings 228–32
      • Spiliada decision, connecting factors 232–3
      • stay unless strong reason shown 226–333
      • time bar in contractual jurisdiction not in itself a strong cause 234–6
    • forum non-conveniens doctrine, on grounds of 206–25
    • multiplicity of proceedings 228–32
  • subject matter jurisdiction
    • Admiralty Court 6
    • enforcement of maritime claims 24–5
  • Supreme Court of Judicature, origins 4
  • time bar grounds, dismissal of claim 200–4
  • time charterer, and meaning of ‘charterer’ 120
  • Tomlin orders, lis pendens rule, exception to 306
  • tort, claims in
    • carriage of goods on ship or use or hire of ship 43–4
    • by foreigners against foreign ship 40–1
  • towage, enforcement of claims in respect of ship or aircraft 52
  • tracing orders 77
  • truly in rem claims 116–17
    • arrest of ship 98
    • maritime liens 25
    • vs. non-truly in rem claims 10, 97
  • Turkey, wrongful arrest 170
  • United States (US)
    • classification of claims in different jurisdictions 190–1
    • security for maritime claims see Rule B1
    • attachment (Supplemental Rules for Admiralty or Maritime Claims of the Federal Rules of Civil Procedure), US
  • ‘vessel’, defined 16, 18
  • ‘vexatious and oppressive’ wording
    • anti-suit injunctions 342, 343
    • forum non-conveniens doctrine 206, 208, 209
  • voyage charterer, and meaning of ‘charterer’ 120
  • wages of master or crew, claims for
    • dismissal, on time bar grounds 204
    • distribution of the court fund 188–9
    • employees’ contributions 55
    • extent of seamen’s wages 55–7
    • severance payments and pensions, treatment of 58–9
  • Woolf Reform of Civil Justice 5
  • wrongful act, loss of life or personal injury claims 37
  • wrongful arrest 158–71
    • Arrest Convention 1999 170–1
    • civil law jurisdictions 170
    • common law jurisdictions, other 168–9
    • confusion 165–6
    • crassa negligentia test see crassa negligentia test, wrongful arrest
    • inappropriateness of criminal law test 162–5
    • malice test 159–60
    • recent decisions 166–7
    • stringent test, malicious prosecution 160–2
    • without reasonable and/or probable cause concept 160, 161, 165, 166

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