Lloyd's Maritime and Commercial Law Quarterly
ARRESTING THE MISCONCEPTION
Susan K. Robinson
LL.B., of Messrs. Ingledew, Brown, Bennison & Garrett.
It is generally accepted that one of the most effective methods of enforcing a maritime lien or other claim arising under paras, (e) to (r) of s. 20(2) of the Supreme Court Act 19811 is to arrest a ship in the ownership of the person or persons against whom one is claiming. The power to do so arises out of s. 21(4) of the Act, which states as follows:—
“In the case of any such claim as is mentioned in Section 20(2) (e) to (r), where—
(a) the claim arises in connection with a ship: and
(b) the person who would be liable on the claim in an action in personam (“the relevant person”) was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship,
an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against—
(i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or
(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it”.
The relative ease with which one can arrest such vessels and the present economic climate, which make it increasingly important that there be a guarantee of satisfaction of any award made, have led to arrest or the threat of arrest being used more frequently.
In the majority of cases this has the desired result of security (usually in the form of a bank guarantee or P. & I. Club letter) being given. Only in a very few cases is the question of wrongful arrest raised. Those tending towards questioning the correctness of an arrest may feel less inclined to indulge in litigation in view of Lord Denning’s remark in The Lisboa ([1980] 2 Lloyd’s Rep. 546, at p. 549) that
“when the arrest is made in good faith—for the purpose of obtaining security for a just demand—then I am of the opinion that the English Courts should not restrain it by injunction even though it is said to be in breach of an exclusive jurisdiction clause”.
However, all may not be as straightforward as may appear on an initial cursory glance. In a recent article by Andrew Tettenborn ([1981] 4 LMCLQ 507) the meaning
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