В статье рассматриваются наиболее важные моменты порядка ареста морских судов в Индии. Автор приходит к выводу, что процедура ареста судна в индийских судах довольно проста и соответствует международным стандартам, хотя Индия не является стороной ни одной из международных конвенций, посвященных правилам ареста судов.
Preface:
India has seen a steady rise in the number of maritime disputes leading to many parties exploring the possibility of arresting vessels in India. Although the procedure is cumbersome, it is relatively quick to obtain an arrest in urgent situations. This article will highlight the various procedures involved so that an arresting party has a check-list in hand before deciding to proceed with an arrest in India.
Broadly speaking, the following are the most important points which any Claimant wishing to arrest a vessel in India must remember:
A. Court:
At present the High Courts of Bombay (Mumbai), Madras (Chennai), Calcutta (Kolkata), Gujarat (Ahmedabad), Andhra Pradesh (Hyderabad), Orissa (Cuttack) and Kerala (Cochin) exercise admiralty jurisdiction over vessels within Indian territorial waters. Most of these High Courts only exercise jurisdiction over vessels within their respective state territorial waters. Hence the High Court of Madras for example will not arrest a vessel which is in Mumbai or anywhere in Indian waters except the waters of Tamil Nadu which is the state in which Madras is located.
The High Courts of Bombay and Calcutta on the other hand exercise admiralty jurisdiction over vessels anywhere in Indian territorial waters and not just to vessels in their respective state territorial waters. Thus for example, the Bombay High Court can arrest a vessel in Madras (Chennai). This crucial difference makes Mumbai and Kolkata a preferred Court to arrest vessels wherever the vessel is provided the vessel is within Indian territorial waters.
B. Claims for which arrest is permissible:
The principles of maritime law and admiralty jurisdiction are largely similar to those in England. The admiralty jurisdiction of India dates back to the Letters Patent and the Admiralty Courts Act, 1840. There have been subsequent legislations providing for admiralty jurisdiction of certain Courts in India. Most of these have been adopted from England. The Admiralty Courts Act, 1840 and Admiralty Courts Act, 1861, provide a list of claims for which a vessel can be arrested.
India is not a signatory to either the Arrest Convention 1952 or the Arrest Convention 1999. However, the Supreme Court of India has held that India can arrest vessels relying on the Arrest Conventions 1952 and 1999 as the principles set out in these Conventions reflect the principles internationally and followed by maritime jurisdictions worldwide, provided that the principles are not in conflict with municipal Indian laws. India has thus widened the scope of the Court’s jurisdiction to include claims beyond those which are recognized under English law by allowing arrest for claims listed in the Arrest Convention, 1999. India also allows arrest of vessels for security pending foreign arbitration and recognizes the concept of sister-ship arrest, beneficial ownership / associated ship arrest.
Of the claims listed in the Arrest Conventions 1952 and 1999, claims relating to damage done by a ship, salvage, seamen’s and master’s wages, master’s disbursements and bottomry and respodentia constitute maritime liens and the vessel can be arrested for such a claim even if there is a change in the ownership of the vessel. In respect of the other claims, if there has been a change in the ownership of the vessel, the claim will be defeated and no arrest is possible unless the change of ownership is a sham / fraud transaction.
C. Documentation:
First and foremost, it is advisable that a foreign Plaintiff should issue a power of attorney in favour of local attorneys (who should not be the lawyers instructed) authorizing them to sign the relevant Court documents. Based on the Power of Attorney, the attorney will sign a Vakalatnama (Note of appearance) authorizing a lawyer to act for, appear and plead the case in Court on behalf of the Plaintiff.
In order to apply for an arrest, the Claimant (Plaintiff) will have to file a substantive Suit setting out the facts in detail, the nature of the dispute, the particulars of the claim, etc. The Suit will also contain all the supporting documents such as the contract, correspondence exchanged between the parties, proof of vessel ownership, etc. The Suit will essentially be a substantive statement of claim. A prayer in the Suit for arrest, detention and sale of the vessel, a decree for the claim amount / security in respect of arbitration proceedings, and interim orders for urgent arrest will be made as the case may be. The Plaintiff will also pay Court fees the quantum of which depend on the claim amount and vary from Court to Court.
In addition, the Plaintiff will file an affidavit in support of the Plaint, a draft Judge’s order ordering the arrest of the vessel with an affidavit in support thereof, a Warrant of Arrest which is required to be issued by the Court pursuant to the Judge’s Order and served upon the vessel and an Undertaking to pay damages for wrongful arrest. The Undertaking cannot be invoked merely because the Court eventually vacates the arrest but only if the Court eventually holds that the arrest was wrongful for example if obtained with mala fide intentions or in bad faith or a case involving gross negligence. No counter-security is normally required to be furnished.
The Plaintiff will also have to undertake a search with the registry to ascertain if any caveat against arrest of the vessel has been registered with the Registry. If no caveat has been registered, the application for arrest can be made ex-parte upon producing a Certificate from the Admiralty Registrar confirming that no caveat against arrest of the vessel has been registered. Additionally, if the claim is for possession, wages or necessaries, a notice to the local Consulate of the Country in which the vessel is registered is required to be issued.
D. Other procedural requirements:
Normally, a day or two are required for preparing the necessary documentation and filing the Suit. The Plaintiff can request the Court to take up the application for arrest out of turn on an urgent basis either the same day of filing the Suit or the next day depending on the Court’s commitments. The Courts are quite accommodating and usually allow the application to be taken up the same day of filing the Suit. Once the Court has passed an order of arrest, the Judge will sign the Judge’s Order on which basis the Registry will issue a Warrant of Arrest of the vessel. The Warrant of Arrest is required to be served by the Sheriff through a nominated Court Bailiff. The Sheriff will instruct a Court Bailiff to serve the Warrant of Arrest with a covering letter from the Sheriff upon the vessel and also the port and customs authorities with a request that the port and customs do not grant outward clearance to the vessel nor permit the vessel to sail. The Bailiff will then personally serve the Warrant of Arrest and the letter upon the vessel, port and customs authorities. The Bailiff will file an affidavit confirming that he carried out the service. This is to show that the vessel was served and is important if after service, the vessel does not appear through a lawyer in Court.
E. After the arrest:
Once the vessel has been served with the Warrant of Arrest, the vessel through its owner can either appear and settle the claim or contest the arrest. If the Owner wishes to contest the arrest, the Owner can either furnish security for the claim on a without prejudice basis so that the vessel can sail and then contest the arrest or the Owner can contest the arrest by keeping the vessel under arrest. Normally, the former is preferred as the vessel can sail and be employed for gain. If the Owner does not appear, the Court has the power to order sale of the vessel and the sale proceeds will lie in Court. The sale proceeds will eventually be paid to the Claimant on obtaining a decree subject to issues of priorities and any other creditors.
Conclusion:
The fact that despite the various procedural requirements, the process is quite quick coupled with the fact that no counter-security is usually required to be provided and the Undertaking cannot be invoked in all cases where the arrest is vacated or set aside, makes India a friendly arrest jurisdiction. Further, most Claimants prefer applying in the Bombay High Court as it exercises jurisdiction over vessels anywhere in Indian territorial waters. Also, India recognizes the concept of beneficial ownership / associated ownership, sister-ship arrest and also allows arrest for security pending foreign arbitration. These make India a friendly arrest jurisdiction.
Автор: Harsh Pratap
Источник: http://www.forwarderlaw.com/library/view.php?article_id=878