Lloyd's Maritime and Commercial Law Quarterly
DAMAGES FOR THE WRONGFUL ARREST OF A VESSEL
Shane Nossal*
What is the remedy available to a shipowner when a plaintiff arrests his vessel in the mistaken belief that it belongs to a person against whom he has a legitimate cause of action? The arrest of his vessel will inevitably cause the shipowner some financial loss; it may also induce disastrous repercussions.1
Taking into account the warning of Brandon J., in The Moschanthy2
that “the power to exact security in support of a claim in rem is a very strong power and it must not be used oppressively”, one would have thought it reasonable to hold the plaintiff liable for the damages occasioned by the arrest and detention of the innocent shipowner’s vessel. The law, however, is not so straightforward. Indeed, the party who makes a wrongful arrest is in general protected and immunized from the consequences of his actions. This article examines the legal foundations of the law relating to damages for the wrongful arrest of a vessel. It is argued that there is no justification for the wide protection afforded by the law to plaintiffs who effect a wrongful arrest, that such protection is out of step with recent developments in analogous areas of the law, and that the inadequacies of the present law can be rectified by an abandonment of the narrow rule derived from, and a reversion to the broader principles enunciated in, The Evangelismos,3
the leading authority in this area.
The present law
The commonly accepted legal principles relating to damages for wrongful arrest of vessels can be clearly stated. Wrongful arrest alone does not entitle the shipowner to damages for the economic loss suffered as a consequence of the arrest and detention of his vessel. The court will only award such damages where the arrest (or its continuation) has been made with mala fides or crassa negligentia.4
The leading authority on which this narrow rule is based, The Evangelismos,5 an 1858 decision of the Privy Council, articulated the principle in broader terms. In that case, the
* Department of Law, University of Hong Kong.
1. If the shipowner, for example, does not have the funds necessary to secure the release of his vessel.
3. (1858) 12 Moo. RC. 352; 14 E.R. 945; Swab. 378; 166 E.R. 1174 (P.C.).
4. See, e.g., The Supreme Court Practice 1995 (Sweet & Maxwell; London, 1994), Vol. 1, 1294; “if property is arrested by reason of mala fides or crassa negligentia, damages may be recovered in Admiralty or, indeed, at common law”.
5. (1858) 12 Moo. P.C. 352; 14 E.R. 945; Swab. 378; 166 E.R. 1174 (P.C.).
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