First-step analysis: shipping law and practice in United Kingdom

Newbuilding contracts

Transfer of title

When does title in the ship pass from the shipbuilder to the shipowner? Can the parties agree to change when title will pass?

The shipbuilding contract will contain detailed provisions dealing with when title in the ship will pass. The parties are, in principle, free to agree whatever they like. However, title normally passes on delivery. In most shipbuilding contracts payment is by instalments and payment of the final instalment and delivery are simultaneous. This is often marked by a formal closing meeting.

It sometimes happens that, for whatever reason, the shipbuilder is not able to provide a refund guarantee (to secure the return of any pre-delivery instalments in the event of non-delivery). In such cases the contract might provide for the progressive transfer of title as the construction progresses.

Refund guarantee

What formalities need to be complied with for the refund guarantee to be valid?

Under section 4 of the Statute of Frauds 1677, a contract of guarantee is unenforceable unless it is made in writing, or is evidenced in a written note or memorandum and requires that it be signed by the guarantor or by its agent. The note or memorandum must acknowledge the existence of the agreement and include the material terms of that agreement. There have been some interesting decisions on the validity of guarantees in the English courts. In one case, the Court of Appeal held that a guarantee could be found in a chain of emails for the purposes of the Statute of Frauds, even though no hard copy of the final form of guarantee had been signed. The Court of Appeal also held that an email salutation by a broker authorised to act on behalf of the guarantor was sufficient to constitute a signature for the purposes of the Statute of Frauds, irrespective of the intention with which the broker signed, and it was irrelevant whether or not the broker thought he or she was signing a guarantee. In another case, the Commercial Court considered the validity of a guarantee issued and sent by SWIFT (a secure international messaging service used by financial institutions). The guarantor bank’s name appeared in the header that was automatically inserted into the SWIFT message and the court’s conclusion was that this constituted sufficient signature for the purposes of the Statute of Frauds.

Court-ordered delivery

Are there any remedies available in local courts to compel delivery of the vessel when the yard refuses to do so?

An order for specific performance of a contract is a discretionary remedy. Such an order is not normally granted if compliance with it would require detailed judicial supervision. Thus, an order for specific performance of a shipbuilding contract compelling the builder to complete and deliver the vessel is unlikely to be granted. The situation may be different where the vessel is complete, it is possible for the yard to deliver it and damages are not an adequate remedy.

Defects

Where the vessel is defective and damage results, would a claim lie in contract or under product liability against the shipbuilder at the suit of the shipowner; a purchaser from the original shipowner; or a third party that has sustained damage?

The Consumer Protection Act 1987 (CPA) imposes a measure of strict liability for damage caused by a defective product. The person liable is the ‘producer’ of the product and, since the definition of a product in the CPA expressly includes ‘ship’, the possibility arises, in theory at any rate, of anyone being able to make a claim against the shipbuilder under the CPA. However, damage to the product itself is expressly excluded under the CPA. Similarly, so far as concerns loss of or damage to property, the CPA only applies in respect of damage to property ordinarily intended for the private use or consumption of the person who suffers the damage. In short, therefore, the CPA is unlikely to apply to loss of or damage to commercial property, for example, to cargo on the ship or to other vessels, although there is a possible exception where the vessel is used privately. Where the CPA does not apply, any remedy will depend upon the application of the usual principles of contract and tort.

Where the vessel is defective because of defects in workmanship or materials, the purchaser’s right to reject the vessel will depend on the terms of the contract and also on whether the defects are material and whether the shipbuilder is in repudiatory breach of contract. In practice, if the shipbuilder can, and is willing to, rectify the defects within the agreed delivery time, there will be no repudiatory breach of contract. Where the defects are minor and do not deprive the purchaser of substantially the whole benefit of the contract, there will be no right of rejection and the purchaser will be limited to a claim in damages. More usually, the purchaser will require the shipbuilder to remedy the defects at its own cost. Once the vessel has been accepted for delivery after sea trials, it is usually provided in the contract that such acceptance is final and binding such that the builder is not liable for pre-delivery defects. Contracts will, however, often also contain contractual warranties whereby the builder agrees to remedy defects discovered after delivery, subject to specific time limits within which claims can be made. They may also contain terms seeking to limit or exclude liability on grounds other than time. For example, statutory implied terms as to compliance with description, satisfactory quality and fitness for purpose are often excluded, as is liability for consequential losses. However, in England and Wales there are statutory provisions in place that, where applicable, affect a contracting party’s freedom. Where the Unfair Contract Terms Act 1977 applies, liability for death or personal injury caused by negligence cannot be excluded. Those who enter into shipbuilding contracts as consumers, rather than businesses, have further statutory rights and protections under the Consumer Rights Act 2015, most of which cannot be contracted out of.

It may be that a purchaser from the original shipowner or other third party will be able to rely upon the Contracts (Rights of Third Parties) Act 1999 to bring a claim against the shipbuilder. Commercial contracts usually, however, contain an express clause excluding the operation of that Act. Purchasers from the original shipowner may take an assignment of any guarantee in the shipbuilding contract and this may well be enforceable through the original buyer, even if there is a prohibition against assignment in the shipbuilding contract.

Nevertheless, a claim will lie at the suit of a third party if he or she can demonstrate a negligent breach by the shipbuilder of a duty of care under the principles established in Donoghue v Stevenson [1932] AC 562.

Ship registration and mortgages

Eligibility for registration

What vessels are eligible for registration under the flag of your country? Is it possible to register vessels under construction under the flag of your country?

For a vessel to be registered as a British ship under the Merchant Shipping Act 1995 (MSA 1995) it must be ‘a vessel used in navigation’ and it must be owned by persons qualified to own a British ship. Vessels eligible for registration in the Register of British Ships mirror the four parts of the register:

• Part I: British ships that are not fishing vessels or small ships (ie, merchant or pleasure vessels that are over 24 metres in length, are owned by a company or are (or will be) subject to a mortgage);
• Part II: fishing vessels;
• Part III: small ships under 24 metres in length owned by individuals who require simple registration that is not a registration of title; and
• Part IV: bareboat charter ships (ships that are registered in another jurisdiction but are bareboat chartered to persons qualified to own British ships).

A ship cannot be registered on more than one part of the register simultaneously.

Vessels operated by the Royal Navy are not able to register on the British Ship Register, but Royal Fleet Auxiliary vessels are.

The Merchant Shipping (Registration of Ships) Regulations 1993 provides, to be a British ship, the legal and beneficial owners of every share of a ‘majority interest’ (ie, 33 per cent of the shares) in the vessel must be companies or subjects of the UK, or a British territory, or citizens of an European Economic Area (EEA) state. Each of the shares to be counted in the majority interest must be wholly owned by such qualified people. In the MSA 1995, ‘ship’ is defined as any vessel used in navigation, but this is likely to be interpreted more widely to include units capable of movement at sea, whether self-propelled or not. The Department of Trade has indicated that it considers submersibles and jack-up rigs to be ships capable of being registered under the MSA 1995. The Registrar of Shipping and Seamen should be consulted if eligibility for registration is not clear.

It is not possible to register vessels under construction under the UK flag.

Who may apply to register a ship in your jurisdiction?

The following are eligible to be owners of ships entered on the UK register:

• British citizens;
• British Dependent Territories citizens;
• British Overseas citizens;
• companies incorporated in an EEA state;
• citizens of EU member states exercising their rights under articles 48 or 52 of the EU Treaty in the UK;
• companies incorporated in British overseas possessions, so long as their principal place of business is either in the UK or in those possessions; and
• European economic interest groupings.

However, there has been a recent extension under the Merchant Shipping (Registration of Ships) (Amendment) (EU Exit) Regulations 2019 to include the following categories:

• Commonwealth citizens;
• citizens of certain approved countries listed in Schedule 6;
• non-United Kingdom nationals who are settled in the United Kingdom;
• bodies corporate incorporated in a Commonwealth state; and
• bodies corporate in a country listed in Schedule 6.

If none of the above criteria can be met, a representative may be appointed. The representative must be either an individual resident in the UK or a company incorporated in an EEA state that has a place of business in the UK.

A maximum of five persons or companies may be registered as owners of a British ship.

All applications for registration are to be made to the Registrar at the Registry of Shipping and Seamen. This can be done in person or by post (provision is also made for acceptance of certain application documents electronically) and must be supported by a declaration of eligibility in the approved form, which is to include a declaration of British connection, a declaration of ownership by every owner setting out their qualification to own a British ship and a statement of the number of shares in the ship and their ownership.

Documentary requirements

What are the documentary requirements for registration?

The following documents will generally need to be submitted to register:

• application to register;
• declaration of eligibility;
• bill of sale (for an existing vessel);
• copy of certificate of incorporation or equivalent document;
• for fishing vessels the maximum continuous engine power must be declared and, if the vessel is 12 metres in length or over, a UK fishing vessel safety certificate must be produced;
• certificate of survey for tonnage and measurement;
• international tonnage certificate (for vessels greater than 500 GT);
• builder’s certificate (for a new-build vessel);
• deletion certificate or transcript from current register or an undertaking to provide one within six weeks;
• copy of ship’s current continuous synopsis record (for vessels greater than 500 GT); and
• mortgage registration forms (if appropriate).

The above list is a minimum and further documents and information may be required in relation to, for example, safe manning, certificates of equivalent competency, maritime security (ISPS Code), radio communications, ISM Code, seafarer employment agreements, accommodation, Maritime Labour Crew Convention (MLCC), survey, stability and civil liability certification.

Once the documentation is received, a Carving and Marking Note will be issued to the attending surveyor. Once signed and returned, the Certificate of Registry can be issued.

Often, a limited company is incorporated in Britain for the purpose of being the registered owner of a vessel on the Register. The basic requirements to incorporate a company under the Companies Act 2006 (CA 2006) are as follows:

• memorandum of association: the memorandum simply states that the subscribers:
• wish to form a company under the CA 2006;
• have agreed to become members (subscribers) of the company; and
• where the company is to have share capital, have agreed to take at least one share each (or one share for a single subscriber);
• articles of association: the internal arrangements of a company are governed by its articles of association. A company may adopt its own articles or adopt one of the model articles of association prescribed for companies by the CA 2006, either with or without modification. The relevant model articles applicable to the type of company in question will apply by default to newly incorporated companies unless they choose to vary or exclude those articles;
• shareholders: whether the incorporated company is a public limited company or a private limited company limited by shares, only one shareholder is required, irrespective of that shareholder’s nationality or place of residence;
• directors: a private limited company may have only one director, if permitted in its articles, while a public limited company must have at least two directors. At least one director must be a natural person, but a director’s nationality or place of residence is irrelevant for legal purposes;
• company secretary: a private limited company does not need to have a company secretary, unless required to do so by its articles of association; a public limited company must have a formally qualified secretary; and
• filing: the memorandum of association and articles of association (if not adopting the relevant model articles), together with the payment of the requisite fee, must be filed at Companies House with form IN01 (application for registration), which discloses certain details to Companies House, including the proposed registered address and accounting reference date of the company and details of its proposed directors.

Dual registration

Is dual registration and flagging out possible and what is the procedure?

The dual registry system allows a charterer, leasing a ship registered in one country, to benefit from the advantages offered by another registry. It also allows the shipowner to maintain the original registration, which is merely suspended during the dual registration but regains its effectiveness upon termination of the charter.

The UK only expressly allows dual charter registration under a bareboat charter and has recently introduced a system for bareboat charter out, so that ships can temporarily reflag for the period of a charter before returning to the UK flag when that agreement ends. Ships can be bareboat chartered into the UK register from any other registry provided that the eligibility requirements for both vessel and charterer are met. As with owned ships, a representative person or managing charterer must be appointed. Once the initial paperwork is submitted, the chosen name and port will be confirmed and an official number issued. Once these details have been marked on the ship, the certificate of registry will be issued and will last for five years or the duration of the bareboat charter agreement, whichever is the shorter. Registration may be renewed on presentation of a fresh declaration of eligibility and a certificate of bareboat charter.

Mortgage register

Who maintains the register of mortgages and what information does it contain?

The Registrar General of Shipping and Seamen maintains the mortgage register of a merchant ship or fishing vessel on the British register. The register contains:

• type of mortgage;
• date of creation;
• date and time of registration;
• name and address of the mortgagee;
• number of shares mortgaged; and
• where relevant, original principal amount secured.

English law does not permit mortgages in favour of a bearer, so the mortgagee must be named. The amount is secured and the repayments are not recorded. If the mortgage is discharged, this is endorsed on the reverse side of the mortgage, and registered.

Limitation of liability

Regime

What limitation regime applies? What claims can be limited? Which parties can limit their liability?

The UK is party to the 1976 Convention on Limitation of Liability for Maritime Claims (the 1976 Convention) as amended by the 1996 Protocol. Amendments to the 1996 Protocol were announced by the International Maritime Organization (IMO) in April 2012, introducing new liability limits that came into force on 8 June 2015 and that resulted in a 51 per cent increase on the previous limits. These limits came into force in the UK on 30 November 2016.

Under the 1976 Convention, the persons entitled to limit their liability include shipowners, charterers (including slot charterers, according to a decision of the English High Court), managers, operators and salvors, as well as any person for whose act, neglect or default those parties are responsible, and the liability insurers of any of those parties. The English courts have held that the 1976 Convention also entitles the charterers to limit for claims brought against them by shipowners although, in those circumstances, charterers can only limit their liability for claims in respect of which limitation is available under article 2 of the 1976 Convention. By way of example, charterers can limit their liability in respect of an indemnity claim for any cargo claims brought against the shipowners, but they cannot limit their liability in respect of a claim for an indemnity for salvage costs or in respect of general average.

The 1976 Convention applies to seagoing ships, but the implementing legislation in the MSA 1995 extends the right to limit to non-seagoing ships, as well as to hovercraft. The UK maintains a reservation in respect of article 2(1)(d) of the 1976 Convention with the result that liability for the cost of wreck removal is unlimited. That said, there are arguments that it is still possible to limit liability in respect of the recourse claims relating to wreck removal expenses.

Section 191 of the MSA 1995 also extends the right of limitation to harbour authorities, conservancy authorities and owners of docks and canals. The claims that can be limited are set out in the 1976 Convention. It should be noted that the UK excludes claims for ‘loss of life or personal injury’ suffered by passengers on seagoing ships from the list of claims subject to limitation. All such claims are subject to the Athens Convention 1974 and its 2002 Protocol, which entered into force on 23 April 2014. Since 31 December 2012, the key provisions of the Athens Convention 1974 and the 2002 Protocol have been implemented in the EU and the EEA by the EU Passenger Liability Regulation, Regulation 392/2009 (PLR).

Under section 22 of the Pilotage Act 1987, pilots and pilotage authorities may limit their liability to £1,000 plus the pilotage fee for individual liability of the pilot and to £1,000 multiplied by the number of pilots employed by the pilotage authority in cases where the latter is liable for the acts of its pilots.

Procedure

What is the procedure for establishing limitation?

Rule 61.11 of the Civil Procedure Rules stipulates that a limitation action must be started in the Admiralty Court by issuing a claim form. At least one defendant must be named in the claim form, but other defendants may be described generically. If the action is successful and a limitation decree granted, the limiting party will be entitled to limit liability against any and all claims. It is possible to invoke limitation of liability without setting up a fund when commencing an action. However, in some circumstances there may be advantages in so doing, for example to protect against later increases in the fund or to make use of the rights contained in article 13 of the 1976 Convention; principally, freedom from ship arrest in states party to the Convention. The prior initiation of legal proceedings under the 1976 Convention is not a condition precedent for an application to constitute a limitation fund.

One issue that has come before the English courts is whether a limitation fund can be set up by way of a protection and indemnity (P&I) club letter of undertaking. The English Court of Appeal has clarified that it is possible (subject to certain requirements) to constitute a tonnage limitation fund in England with a guarantee, including a P&I club letter of undertaking.

Limitation may also be pleaded by way of defence. Success with that defence, however, will only establish the right to limit liability to the claimant in that particular action, and not liability to any other claimants. It is not necessary to set up a limitation fund where limitation is pleaded by way of defence.

The limits are calculated on the basis of the vessel’s limitation tonnage.

Break of limitation

In what circumstances can the limit be broken? Has limitation been broken in your jurisdiction?

Article 4 of the 1976 Convention provides that a person shall not be entitled to limit his or her liability if it is proved that the loss resulted from his or her personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result. The cases demonstrate that it is extremely difficult to break this limit.

In what has been described as a landmark judgment in the English Admiralty Court in 2016, in Kairos Shipping v ENKA & CO LLC (Atlantik Confidence) [2016] EWHC 2412 (Admlty), however, cargo interests successfully broke limitation in the UK for the first time since the 1976 Convention came into force.

It has not been decided what will happen to any fund that has been established if and when limitation is broken.

Passenger and luggage claims

What limitation regime applies in your jurisdiction in respect of passenger and luggage claims?

The Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 (Athens Convention), has been in force in the UK, by virtue of section 183 of the MSA 1995, since June 1996.

The Protocol to the Athens Convention was adopted in 2002 and came into force on 23 April 2014 and, as at April 2019, is in force in 29 states: Albania, Belgium, Belize, Bulgaria, Croatia, Denmark, Finland, France, Greece, Ireland, Latvia, Lithuania, Malta, Marshall Islands, Montenegro, the Netherlands, Norway, Palau, Panama, Portugal, Romania, the Russian Federation, Serbia, the Slovak Republic, Slovenia, Spain, Sweden, Syrian Arab Republic and the UK.

The 2002 Protocol has replaced fault-based liability with strict liability. The carrier is liable unless it can show that the incident resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible nature or, alternatively, that the incident was wholly caused by an act or omission of a third party with intent to cause the incident.

The 2002 Protocol raises the limits of liability for death of, or personal injury to, a passenger, from 46,666 SDR to 250,000 SDR (approximately US$358,000). Where losses exceed this new limit, and are caused by fault or neglect on the part of the carrier, there is an overall increased limit of liability of 400,000 SDR (approximately US$573,000) per passenger. Carriers cannot limit liability where they acted with intent to cause such damage or recklessly and in the knowledge that their actions would probably cause damage. Under the protocol, member states have an opt-out provision, allowing them to retain or introduce higher limits of liability, or indeed unlimited liability, for personal injury and death claims under their national law.

For loss of or damage to luggage, the limit varies:

• the liability of the carrier for the loss of, or damage to, cabin luggage is limited to 2,250 SDR (approximately US$3,220) per passenger, per carriage;
• the liability of the carrier for the loss of, or damage to, vehicles including all luggage carried in or on the vehicle, is limited to 12,700 SDR (approximately US$18,180) per vehicle, per carriage; and
• the liability of the carrier for the loss of, or damage to, other luggage is limited to 3,375 SDR (approximately US$4,831) per passenger, per carriage.

The 2002 Protocol also states that compulsory insurance is required to cover passengers on ships. Third-party claimants are now entitled to bring a direct claim resulting from a shipping-related incident against the liability insurer, up to the strict liability limit of 250,000 SDR (approximately US$358,000) per passenger for each distinct occasion.

The 2002 Protocol applies to all international carriage where a ship is registered in the UK, the contract of carriage has been made in the UK, or the place of departure or destination is in the UK. The 2002 Protocol does not, however, apply to vessels registered to carry no more than 12 passengers. As stated in the answer to question 10 above, the key provisions of the Athens Convention 1974 and the 2002 Protocol have been implemented in the EU by the PLR since 31 December 2012.

Port state control

Authorities

Which body is the port state control agency? Under what authority does it operate?

Modern port state control in the UK derives from the voluntary commitment of EU member states to the memorandum of understanding agreed in Paris in 1982 (the Paris MoU). This was given a legal framework by EU Council Directive 95/21/EC on port state control of shipping, which was implemented in the UK by the Merchant Shipping (Port State Control) Regulations 1995, Statutory Instrument 1995 No. 3128, as subsequently amended.

Directive 2009/16/EC on Port State Control (the PSC Directive) replaced Directive 95/21/EC and was implemented into UK legislation by the Merchant Shipping (Port State Control) Regulations 2011, which came into force on 24 November 2011. In July 2013, a legislative resolution proposing a new directive to align the PSC Directive with the requirements of the Maritime Labour Convention 2006 (MLC) was passed in the European Parliament. Among other things, the amendments dealt with how the requirements under the MLC are to be monitored as part of a member state’s port state control duties. The European Council adopted the new Directive 2013/38/EU on 22 July 2013 and it came into force on 20 August 2013, the date of entry into force of the MLC.

The Port State Control agency in the UK is the Maritime and Coastguard Agency, which is an executive agency of the Department of Transport. It was established in 1998 as a result of the Port State Control (Amendment) Regulations, Statutory Instrument 1998 No. 1433, and the merger of the Marine Safety Agency and the Coastguard Agency.

Sanctions

What sanctions may the port state control inspector impose?

The PSC Directive imposes a risk-based system of targeting ships for inspection. Provisions of the directive that apply to shipowners, operators, agents, masters, crew, pilots and port authorities are incorporated into English law by the Merchant Shipping (Port Sate Control) Regulations 2011 (MSR 2011). Each ship in the database is allocated a risk profile out of the three possible risk profiles: high risk, standard risk or low risk. When determining a ship’s risk profile, the following criteria are considered:

• type of ship;
• age of ship;
• flag of registry;
• performance of the relevant ‘recognised organisation’ (an organisation, usually a classification society, which is authorised by a member state to carry out surveys and issue certificates on its behalf: see question 17);
• the ship’s ISM company performance; and
• number of deficiencies and number of detentions within the previous 36 months.

Calculators for ship risk profiles and company performance based on information entered by the user are provided on the Paris MoU website.

Company performance is a new criterion and is based on the company’s performance in the Paris MoU region with respect to the number of deficiencies per inspection and number of detentions in the preceding three-year period.

The frequency of periodic inspection will depend on the risk profile of the ship. Ships with a high, standard or low-risk profile will be inspected 6, 12 or 36 months, respectively, after the previous inspection in the Paris MoU region. Ships with ‘overriding factors’, as described in Annex I part II 2A of the PSC Directive, will be inspected regardless of the period since the last inspection. Inspections may take place before they are due at the discretion of inspectors 5, 10 or 24 months after the previous inspection for a ship with a high, standard or low-risk profile, respectively. A ship with ‘unexpected factors’, as described in Annex I part II 2B, may be inspected according to the professional judgement of the inspector. The interval until the next inspection restarts after each inspection. Ships other than those described above will not, generally, be selected for inspection.

Usually inspections are unannounced. All inspections begin with an initial inspection. The port state control officer (PSCO) will, as a minimum, check relevant certificates and documents listed in Annex IV, confirm that deficiencies outstanding from the previous inspection in the Paris MoU region have been rectified, and look at the overall condition of the ship, including the engine room, accommodation and conditions of hygiene on board. Where there are ‘clear grounds’ for believing that the condition of a ship or its equipment or crew does not meet the relevant Convention standards, more detailed inspection may be undertaken.

The following sanctions may be imposed:

• a prohibition notice, which requires that a particular activity cease;
• a detention notice, whereby the vessel is prevented from leaving port until the PSCO is satisfied that the deficiencies have been properly rectified and the detention notice has been lifted. The vessel is only permitted to be moved from the place of detention if repairs cannot be made at that place, or if there are overriding reasons of safety. Unauthorised departure from the port of detention may incur liability to a fine or imprisonment; or
• an access refusal notice, which is applicable to all ship types registered with a black or grey-listed flag on the Paris MoU white, grey and black lists (where the individual flag state administrations are ranked according to how their ships have performed in relation to port state control within a period of three years: the ‘black list’ shows the flag states that have significantly more detentions than the average number within the Paris MoU countries; the ‘grey list’ shows the flag states that have a number of detentions corresponding to the average and the ‘white list’ represents high-quality flags with a consistently low detention record). Banning is based on the number of detentions a ship has had within a specified period. A ship that flies a black-listed flag will be banned if it has been detained more than twice in the preceding 36 months. A grey-listed flag ship will be banned if it has been detained more than twice in the preceding 24 months. Minimum ban times are applicable as follows: three months for the first ban and 12 months for the second ban. A detention occurring after the second ban may lead to permanent exclusion from EU ports and anchorages.

Appeal

What is the appeal process against detention orders or fines?

Regulations 14 to 16 of the Merchant Shipping (Port State Control) Regulations 2011 provide owners and masters with rights of appeal and compensation in respect of a detention notice or access refusal notice. An independent arbitrator, appointed by agreement between the parties, decides the appeal. The notice of reference form must be sent to the PSCO within 21 days of receipt of the detention or access refusal notice. A notice of appeal should also be sent to the Maritime and Coastguard Agency office that issued the order.

Detention will not be suspended by issuing a notice of reference. The burden of satisfying the arbitrator that there were no reasonable grounds for the detention lies with the shipowner. If the arbitrator decides that there was no valid basis for the detention, he or she must cancel the detention. Alternatively, the arbitrator may confirm the detention or issue a modified detention order. The arbitrator may also order that the owner be compensated for any loss suffered as a result of the detention, including lost freight, port expenses and legal costs.

Appeal against the arbitrator’s decision is only possible on a question of law or serious irregularity. In the only case for a century dealing with the legality of detention of a vessel under the UK merchant shipping legislation, the disponent owners of a cruise ship sought to challenge the validity of two notices of detention issued by the Maritime and Coastguard Agency, but did not appeal the notices within the 21-day period stipulated by the relevant Regulations. The court, asked to decide a number of preliminary issues, held that some technical defects in the two notices of detention that had been issued did not invalidate them.

Classification societies

Approved classification societies

Which are the approved classification societies?

The UK Ship Register has agreements with six classification societies to act as ‘recognised organisations’ authorised to conduct statutory surveys and certification on UK Registered Ships:

• American Bureau of Shipping (ABS) Europe Ltd;
• Bureau Veritas;
• Class NK;
• DNV GL AS;
• Lloyd’s Register of Shipping; and
• Registro Italiano Navale RINA UK Ltd.

Liability

In what circumstances can a classification society be held liable, if at all?

Classification societies usually exclude their liability by contract. However, it is theoretically possible for a classification society to incur liability in tort if the claimant can establish that the classification society owed a duty of care, that that duty of care was breached and that such breach resulted in loss or damage to the claimant. Although the landmark decision of the House of Lords (as it then was) in Marc Rich & Co v Bishop Rock Marine (The Nicholas H) [1995] 2 Lloyd’s Rep. 299 established that classification societies do not owe a duty of care towards third parties in respect of their classification and certification duties, international developments concerning the liability of classification societies may lead the UK Supreme Court to decide differently should a new case come before it.

The International Association of Classification Societies, which has 12 full members, has introduced a level of self-regulation among its members, including the formation of uniform standards for technical safety rules. In addition, the Erika III package of maritime safety and anti-pollution reforms came into force on 17 June 2009 and includes a regulation and a directive on common rules and standards for ship inspection within the EU and survey organisations authorised to operate on behalf of member states. The directive has been enacted by means of Amendment 3 to MSN 1672 (M+F). The regulation is binding in its entirety and directly applicable in all member states. In summary, these enactments provide for classification societies to achieve the status of ‘recognised organisations’ on behalf of member states in certain circumstances, whereupon they will be subject to the uniform rules and standards and minimum criteria laid down for such recognised organisations. The directive also contains provisions concerning the financial liability of recognised organisations in the case of a wilful act or omission, or gross negligence.

Collision, salvage, wreck removal and pollution

Wreck removal orders

Can the state or local authority order wreck removal?

Under the MSA 1995 a harbour or conservancy authority has the power to remove, destroy, take possession of or mark a wreck where, in the opinion of the authority, the wreck is an obstruction or danger. The authority may sell the removed vessel and reimburse their expenses from the proceeds. The authority may contract with a third party for the removal or salvage of a wreck. Liability for the costs of wreck removal lies with the owner (as mentioned in question 10, such liability is unlimited), notwithstanding that a third party may be ultimately liable, for example where there has been a collision as a result of the negligence of another vessel.

Where there is no harbour or conservancy authority with the power to remove a wreck, the General Lighthouse Authority has the same powers to remove a wreck in its area.

Under the MSA 1995, as modified by the Wreck Removal Convention Act 2011, the Secretary of State, after determining that a wreck poses a hazard, must take all reasonable steps to issue a wreck removal notice to an owner, stating:

• a reasonable deadline by which the wreck must be removed and that evidence of insurance or other security must be provided;
• that, if the deadline is not complied with, the wreck may be removed by the state at the owner’s expense; and
• that the state may intervene in the removal if the hazard becomes particularly severe. Failure to comply with such a notice may result in a fine.

The Nairobi International Convention on the Removal of Wrecks 2007 (the Wreck Removal Convention) entered into force on 14 April 2015 following the deposit, on 14 April 2014, of an instrument of ratification by the 10th ratifying state, with the IMO. As at April 2019, the Wreck Removal Convention is in force in 42 countries. In the UK, the Wreck Removal Convention has been implemented by the Wreck Removal Convention Act 2011, which modified the wording of the MSA 1995. The UK’s ‘Convention Area’ covers both its territorial waters and its Exclusive Economic Zone.

The convention sets out uniform international rules that aim to ensure that wrecks are removed promptly and effectively. An order can be given if the wreck is likely to be a hazard to navigation or a threat to the environment. It also places a positive obligation on the master of a wrecked vessel to report it to the concerned state.

International conventions

Which international conventions or protocols are in force in relation to collision, wreck removal, salvage and pollution?

The Collision Convention 1910 was implemented into national legislation by the Maritime Conventions Act 1911, which was repealed and replaced by the MSA 1995. The Convention on the International Regulations for Preventing Collisions at Sea, 1972 (as amended) are in force by virtue of the MSA 1995 and apply to all British ships wherever they may be, and to all foreign ships within UK waters.

The International Convention on Salvage 1989 applies in the UK.

The International Convention for the Prevention of Pollution from Ships 1973 as amended by the 1978 Protocol (MARPOL 73/78) and subsequently amended by the 1997 Protocol is also in force. The International Convention on Civil Liability for Oil Pollution Damage 1992 (CLC 1992), the Fund Convention 1992 and the Supplementary Fund Protocol 2003 apply in the UK.

The International Convention on Civil Liability for Bunker Oil Pollution Damage 2001, which entered into force on 21 November 2008, applies in this jurisdiction. This aims to ensure that adequate, prompt and effective compensation is available to persons who suffer damage caused by spills of oil when carried as fuel in vessels’ bunker tanks.

Salvage

Is there a mandatory local form of salvage agreement or is Lloyd’s standard form of salvage agreement acceptable? Who may carry out salvage operations?

There is no mandatory form of salvage agreement. Lloyd’s Open Form (LOF) is acceptable and indeed that is the most common form of salvage agreement in the world. However, the LOF does not have to be used and parties can agree their own terms and conditions. Usually, salvage operations are undertaken by professional salvage contractors, but anyone can carry out salvage operations and then bring a claim for contractual or common law salvage.

Given the wide usage of the LOF form worldwide, Lloyd’s publish updated versions at appropriate intervals. The most recent edition of the LOF was published in 2011. A revised edition of the accompanying Lloyd’s Standard Salvage and Arbitration Clauses (LSSA Clauses) was also published and was subsequently updated in 2014. In summary, there have been two major changes to the LOF itself: the details of LOF awards are now made available, although by subscription only; and Lloyd’s now requires that all agreements to use the LOF be reported to it.

There have also been some changes to the LSSA Clauses, the principal ones being as follows: an arbitrator is now entitled to demand security for the fees incurred or reasonably anticipated to be incurred; and notice of the salvage operation can now be provided to the insurers of the property rather than the owners themselves. This change was aimed at reducing the number of notices that needed to be sent out because one insurer may act for a number of owners. The 2014 revision introduced three further changes: the fees for arbitrators are now available on the Salvage Arbitration Branch website; the clause dealing with the ability to serve notice on the security provider has been made clearer and, most importantly, if agreement is reached between the salvors and cargo owners who own at least 75 per cent of the value of the cargo, these settlements are no longer binding on the owners of the rest of the cargo, but the arbitrator can take into account such settlement offers and give them such weight as appropriate.

Ship arrest

International conventions

Which international convention regarding the arrest of ships is in force in your jurisdiction?

The UK is a party to the Convention Relating to the Arrest of Seagoing Ships, Brussels, 1952 (Arrest Convention 1952).

The UK has not, as yet, ratified the International Convention on the Arrest of Ships 1999 (Arrest Convention 1999). The Convention entered into force on 14 September 2011 among its 10 acceding states and, as of April 2019, had 12 state parties. Other states, for example, Russia and Colombia, have incorporated elements of the Arrest Convention 1999 into domestic law. Among the changes that the Arrest Convention 1999 introduced to the Arrest Convention 1952 regime is the addition of new categories of maritime claims, including:

• environmental claims;
• wreck removal claims;
• claims for insurance premiums and P&I club calls;
• claims for commissions, brokerages and agency fees; and
• claims arising out of sale contract disputes and claims for special compensation under article 14 of the Salvage Convention 1989.

Claims

In respect of what claims can a vessel be arrested? In what circumstances may associated ships be arrested? Can a bareboat (demise) chartered vessel be arrested for a claim against the bareboat charterer? Can a time-chartered vessel be arrested for a claim against a time-charterer?

Section 20(2) of the Senior Courts Act 1981 lists 19 types of maritime claim within the admiralty jurisdiction of the High Court and in respect of which a vessel may be arrested. These include:

• claims relating to the possession or ownership of, or mortgage on a ship;
• claims for damage done by or to a ship;
• claims for loss of life or personal injury due to a defect in a ship;
• claims for loss of or damage to goods carried on a ship;
• other claims relating to the carriage of goods on a ship;
• claims relating to the use or hire of a ship;
• claims for salvage, towage and pilotage;
• claims for goods and materials supplied to a ship;
• claims in respect of the construction or repair of a ship;
• claims by the master or crew for wages;
• claims arising out of a general average act; and
• claims arising out of bottomry and collisions.

Notable exceptions to this list, where arrest is not possible, include claims for insurance premiums and for legal costs.

English law treats both English and foreign-flagged vessels equally and it does not distinguish between ‘convention’ and ‘non-convention’ vessels.

It is possible to arrest sister ships, but not associated ships. Sister ships are vessels that at the time when action is brought are owned by the same person who was the legal owner or demise charterer of the ship in connection with which the claim arose, at the time when the cause of action arose.

A bareboat (demise) chartered vessel can be arrested for a claim against the bareboat charterer but a time chartered vessel can only be arrested for a claim against a time charterer for a claim that has given rise to a maritime lien.

Maritime liens

Does your country recognise the concept of maritime liens and, if so, what claims give rise to maritime liens?

Yes. The claims that give rise to maritime liens are:

• damage done by a ship;
• salvage;
• crew’s wages and emoluments;
• master’s wages and disbursements; and
• bottomry and respondentia.

It has been suggested that the following two claims give rise to maritime liens by implication out of statutory provisions:

• fees and expenses of the receiver of wreck; and
• damage sustained by the owner or occupier of lands by means of which assistance is rendered to a wreck.

Wrongful arrest

What is the test for wrongful arrest?

A claim for wrongful arrest usually requires demonstration of bad faith or gross negligence (The Evangelismos (1858) 12 Moo PC 352 (PC) / The Kommunar (No. 3) [1997] 1 Lloyd’s Rep 22).

An example of a case where the Evangelismos/Kommunar test was met is Gulf of Azov v Idisi [2001] EWCA Civ 505; [2001] 1 Lloyd’s rep 727. This case involved the detention of both the ship and her crew in Nigeria by the owners of cargo shipped on board. The cargo owners rejected a reasonable offer of security from the relevant P & I Club, insisting on what was found to be an extortionate amount of security. The Court of Appeal held that, as there were no reasonable grounds for the amount of security demanded by the arresting party, wrongful arrest was established.

Bunker suppliers

Can a bunker supplier arrest a vessel in connection with a claim for the price of bunkers supplied to that vessel pursuant to a contract with the charterer, rather than with the owner, of that vessel?

Under English law, a bunker supplier can only proceed against the party with whom that supplier has contracted and cannot arrest a vessel if it did not contract directly with the owner or demise charterer. Furthermore, even if the bunker supply contract with the charterer contains an express term giving the supplier a lien on the vessel under the law governing that contract, this would have no effect under English law because the owners are not party to that contract. The majority decision of the Privy Council in The Halcyon Isle [1980] 2 LLR 325 held that the lex fori alone governs the recognition and ranking of foreign maritime liens under English law and this majority view has subsequently had considerable persuasive effect in cases decided in a number of jurisdictions. The bunker supplier may have a claim against the shipowner for conversion of the bunkers (and thereby be entitled to arrest the vessel) where the bunker supply contract contains a retention of title clause, provided that the property in the bunkers does not pass from the supplier until payment for them has been made (see The Saetta [1993] 2 Lloyd’s Rep. 268). However, in those circumstances, the shipowner may be able to rely on section 25(1) of the Sale of Goods Act 1979 (SGA) as a buyer of the bunkers from the charterer in good faith and without notice of any adverse right of the bunker supplier (see The Fesco Angara [2010] EWHC 619). Where the requirements of section 25(1) of the SGA are met, the owner will acquire clean title to the goods.

In 2016, the English Supreme Court ruled in PST Energy 7 Shipping LLC v OW Bunker Malta Ltd and another (Res Cogitans) [2016] UKSC 23 that bunker suppliers who were unable to transfer property in bunkers supplied to a ship were nonetheless entitled to the price of the bunkers from the shipowners. The bunker supply contract in question provided for a credit period and incorporated a retention of title clause. The Supreme Court concluded that it was not a contract of sale within the scope of the SGA. Therefore, the implied term under section 12(1) of the SGA, which provides that it is an implied condition of a contract for the sale of goods that the seller has the right to sell the goods or will have such right at the time when property is to pass, did not apply. Section 49(1) of the SGA, which requires that property in the goods has passed to the buyer if the seller is to maintain a claim for the price, also did not apply. As a result, when the intermediate bunker supplier went bankrupt, the shipowners were liable to the physical bunker supplier for the agreed price of the bunkers, which was held to be a straightforward claim in debt. This decision had important consequences for those entering regularly into bunker supply contracts, who have had to consider whether standard bunker industry forms needed to be amended in order to protect the position of those purchasing bunkers from bunker traders in the future.

Security

Will the arresting party have to provide security and in what form and amount?

The Court of Appeal has recently confirmed, in The MV Alkyon [2018] EWCA Civ 2760 that it is not necessary under English law for the arresting party to provide counter-security. However, a personal undertaking is required from the arresting party to the Admiralty Marshal to pay all costs of arrest, care and custody, upon the demand of the Admiralty Marshal.

How is the amount of security the court will order the arrested party to provide calculated and can this amount be reviewed subsequently? In what form must the security be provided? Can the amount of security exceed the value of the ship?

The amount of security to be provided must be reasonable but the assessment may be based on an approximation. ‘Reasonable’ in this context will generally mean the claimant’s best arguable case, plus interest and costs. Clearly there is scope for negotiation as to what the claimant’s best arguable case is. Only if such negotiations are unsuccessful will the court determine the amount and form of the security to be provided. The Arrest Convention 1952 does not limit the value of the security to the value of the ship, instead stating that security should be ‘sufficient’ (article 5), and this should be interpreted as sufficient to cover the arresting party’s best arguable case including interest and costs. In practice, the court is likely to limit the security to either the value of the ship or to the statutory limit of liability with interest and costs. By contrast, the Arrest Convention 1999 explicitly states in article 4(2) that: ‘in the absence of agreement otherwise between the parties, total security cannot exceed the value of the ship’ although, as noted above, the UK is not a signatory.

As to the form of security, this is not prescribed and is a matter for negotiation between the parties. If the court is forced to intervene, then it will look to the financial standing of any guarantor being proposed (whether that guarantor is the shipowner, its P&I club or another entity). It is not necessarily the case that the security must be provided by an independent financial institution for it to be considered adequate.

Formalities

What formalities are required for the appointment of a lawyer to make the arrest application? Must a power of attorney or other documents be provided to the court? If so, what formalities must be followed with regard to these documents?

There are no formalities required for appointing a lawyer to make the arrest application to the Admiralty Court: a power of attorney is not required. In order to arrest a ship, documents in support of the claim should be filed with the claim form, together with details of the ship’s location and port of registration. All original court documents (warrant of arrest and claim form) must be filed with the court before the arrest. A declaration must also be provided regarding the ownership of the ship, the level of security sought and providing confirmation that the claim has not been satisfied. This declaration must be verified by a statement of truth.

The documents do not need to be notarised or apostilled, even though the UK is a signatory to the Apostille Convention. However, where documents are in need of translation, translations must be certified by a notary. Where possible, original documentation should be provided, although the court may order an arrest even though some original documentation is not available. Documents can be filed electronically and the procedure for organising an arrest is in most cases straightforward and can be completed in a matter of hours. Before the ship is arrested, the arresting party must check to ensure that no caution (caveat) against arrest has been lodged with the court. Furthermore, the arresting party’s solicitor must undertake to pay the Admiralty Marshal’s fees and any expenses incurred by him in respect of the arrest of the ship, the care and custody of it while under arrest and eventual release from arrest.

Ship maintenance

Who is responsible for the maintenance of the vessel while under arrest?

The costs of arrest, care and custody are reimbursed to the Admiralty Marshal by the arresting party, but the arresting party is likely to be able to recover the costs from the defendant when the ship is sold because the Admiralty Marshal’s costs and expenses rank first in priority of claims against the proceeds of sale of the vessel.

Proceedings on the merits

Must the arresting party pursue the claim on its merits in the courts of your country or is it possible to arrest simply to obtain security and then pursue proceedings on the merits elsewhere?

Article 7 of the 1952 Arrest Convention, to which the UK is a party, specifies the circumstances in which the arresting court has jurisdiction to hear the claim on the merits. In England, the right to arrest is co-extensive with a right to hear the claim on its merits. This jurisdiction is not exclusive and, at least in theory, the claimant could arrest in England for security only and then pursue his or her claim in a different jurisdiction. More typically, however, the claimant will both arrest the vessel in England and seek to pursue the claim here and the defendant may seek to stay the English court proceedings in reliance on a foreign jurisdiction clause or by asserting forum non conveniens. If the English court grants a stay in favour of proceedings elsewhere, it has jurisdiction to maintain the security pending the outcome of the foreign proceedings.

Injunctions and other forms of attachment

Apart from ship arrest, are there other forms of attachment order or injunctions available to obtain security?

The main English law interim remedy is the freezing injunction (formerly known as a Mareva injunction). A freezing injunction is an interim order prohibiting the respondent from dealing with or disposing of its assets. It is used to preserve those assets with a view to enforcing a judgment against them. It is important to note that such an injunction is not, of itself, a form of security. It does not grant any kind of priority over the assets, for example, but it does oblige the injuncted party to either comply with the terms of the order or to be held in contempt of court. The injunction normally obliges the injuncted party to disclose details of their assets and, where the injunction includes assets held by a third party on behalf of the injuncted party, for example, a bank, the injunction will be served on that third party, who will also be required to comply with the terms of the injunction. A breach of the injunction may amount to a contempt of court, which is punishable by a fine, imprisonment or seizure of assets. The threat of the injunction (or its effect once obtained) may, however, be sufficient to persuade the target party to provide security voluntarily.

A freezing order will generally be capped at the amount of the claim, but it is possible to obtain orders that do not have a cap or that relate to a specific asset or assets. In circumstances where some or all of the respondent’s assets are outside the jurisdiction, the court may grant a worldwide freezing order.

There are six general conditions for the granting of a freezing injunction:

• the applicant must have an underlying cause of action;
• the English court must have jurisdiction (this may be its jurisdiction in support of foreign proceedings);
• the applicant must have a good arguable case;
• there must be evidence that the respondent has assets against which a judgment could be executed;
• there must be a risk that any judgment would not otherwise be satisfied; and
• the applicant must provide an undertaking in damages.

Delivery up and preservation orders

Are orders for delivery up or preservation of evidence or property available?

Orders for the delivery up of property are available under the Torts (Interference with Goods) Act 1977 (the Act), but not more generally. Among other things, the Act provides remedies for the wrongful interference with goods, such as the torts of trespass to goods and conversion. The availability of an order for delivery up as an interim remedy may result in a claim being brought in tort, even if a claim would also lie in contract. An example of a claim for conversion in respect of which an order for delivery up under the Act might be sought is a claim for wrongful retention of cargo.

In a wider context, interim orders are available for the detention, custody, preservation or inspection of relevant property. In particular cases, the court may also make orders allowing samples to be taken or experiments to be conducted on relevant property. The court may also, in certain circumstances, order the sale of goods (generally perishable goods).

Bunker arrest and attachment

Is it possible to arrest bunkers in your jurisdiction or to obtain an attachment order or injunction in respect of bunkers?

Arresting bunkers is not possible under English law, although bunkers could still be the subject of a freezing injunction (see question 32).

Judicial sale of vessels

Eligible applicants

Who can apply for judicial sale of an arrested vessel?

The arresting party can apply for judicial sale of the vessel where it has not received security for its claim from the defendant shipowner.

In addition, the defendant shipowner can also apply for appraisement and sale pendente lite, for example, where a private sale being negotiated by the shipowner falls through.

If the arresting party obtains an order for judicial sale but then receives adequate security for his or her claim then, in normal circumstances, the arresting party would consent to the vessel’s release from arrest and would also consent to the order for sale being vacated. However, if other maritime claimants have filed caveats against the vessel’s release from arrest, then they would be notified and would be given a short window of opportunity to arrest the vessel themselves and restore the order for the vessel’s sale.

Procedure

What is the procedure for initiating and conducting judicial sale of a vessel? How long on average does it take for the judicial sale to be concluded following an application for sale? What are the court costs associated with the judicial sale? How are these costs calculated?

A judicial sale normally takes place under the supervision and control of the court. The Admiralty Marshal is responsible for administering the formalities of the judicial sale, in accordance with the order of the Admiralty Court. There is a standard Admiralty Court order for sale of a ship, which can be varied as necessary. The usual order made either on judgment or pendente lite is that the property be appraised and sold by the Admiralty Marshal. An order for sale can usually be obtained within about a month of the arrest. The court will usually make such an order based on the grounds that the vessel is a wasting asset. The vessel will then be appraised, advertised for sale and sold by sealed tender. In order to maximise the sale price, the vessel will be advertised worldwide in appropriate shipping publications and prospective buyers are given a reasonable opportunity to inspect and submit tenders.

A sale will normally take place about four or five weeks after the order for sale is made. Unless the net proceeds of sale are sufficient to meet all the claims against the vessel, or all the parties reach agreement as to the distribution of the fund, it will be necessary for the court to determine how the fund is to be divided among the various claimants, and whether any particular claimant is to be afforded priority over any other claimant. Any party that has obtained or obtains judgment against the vessel or the proceeds of sale of the vessel may then apply to the court for the determination of the order of priorities of the various claims against the proceeds of sale of the vessel. The determination of priorities may only be made by the Admiralty Judge unless otherwise ordered by him or her.

It normally takes between three and five months for the whole process to be completed, namely: arresting the vessel, obtaining an order for sale, completing the sale, determining the priorities and making payment.

The court costs for judicial sale amount to 1 per cent on the first £100,000 and 0.5 per cent on the balance of the sale proceeds.

As an alternative to sale by public auction, the vessel may, in appropriate cases, be sold by private treaty. In such a case, the Admiralty Court exercises its discretion to order that the vessel be sold to a named buyer at a specified price. This has become known as the ‘fast track’, or the ‘private court sale’, procedure. Such orders are normally made if the court is satisfied that the specified price is unlikely to be bettered using the traditional public tender procedure and that the interests of other claimants against the vessel are not prejudiced. In order to satisfy the court of this, the claimant seeking a fast-track sale (usually a bank with a mortgage over the vessel) is usually required to present three independent ship valuations to the court and details of the proposed sale. The proposed buyer will be expected to pay a price reflecting the highest valuation. On completion of the sale, the gross proceeds of sale are paid into court. An Admiralty Court decision in 2013, however, cast doubt on this practice. In that case, the Admiralty Court held that, as a general principle, such an order should not be made, notwithstanding that the proposed price appears to be at or about the market value of the vessel because there remains a risk that the vessel would not be sold at the best possible price. In the judge’s view, the traditional method of sale, whereby the Admiralty Marshal advertises the sale and invites offers to buy the vessel, is designed to enable the vessel to be sold at the best possible price.

Claim priority

What is the order of priority of claims against the proceeds of sale?

The order of priority of claims against an arrested vessel or the proceeds of sale depends on the category of the claim. In brief:

• maritime liens (concerning damage done by ships; salvage; crew wages and emoluments; master’s wages and disbursements; fees and expenses incurred by a receiver of a wreck; bottomry and respondentia) rank first in priority. There are rules governing the priority of the various maritime liens among themselves and the respective dates on which the competing claims arose may be relevant;
• mortgages and similar charges rank second. Registered mortgages rank in order of registration and ahead of unregistered mortgages; and
• all other claims in rem rank pari passu, such as claims for necessaries, claims arising under charter parties and bills of lading and claims for ship repairs.

However, there are various other claims that must be paid out of the fund before it is divided among maritime claimants. These include the costs and expenses of arrest, custody and sale; court commission on the sale price and sums due to other parties who at the time the sale order was made, had a common law possessory lien over, or a statutory right to detain the vessel (eg, for port charges).

Legal effects

What are the legal effects or consequences of judicial sale of a vessel?

The judicial sale of a vessel gives the purchaser clean title free of all maritime liens and other charges or encumbrances. After the sale, all claims or demands against the vessel can only be enforced against the proceeds of sale.

Foreign sales

Will judicial sale of a vessel in a foreign jurisdiction be recognised?

Where a foreign court has ordered the sale of a vessel, the English court will recognise that sale unless it can be shown to be a sham.

International conventions

Is your country a signatory to the International Convention on Maritime Liens and Mortgages 1993?

No.

Carriage of goods by sea and bills of lading

International conventions

Are the Hague Rules, Hague-Visby Rules, Hamburg Rules or some variation in force and have they been ratified or implemented without ratification? Has your state ratified, accepted, approved or acceded to the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea? When does carriage at sea begin and end for the purpose of application of such rules?

The Hague-Visby Rules (HVR) were enacted into domestic legislation by the Carriage of Goods by Sea Act 1971, to which the rules are attached in full as a schedule and, by section 1(2), are given the force of law. Under article I(e) of the HVR, carriage by sea covers the period from the time when the goods are loaded on board the ship to the time they are discharged from the ship. However, as confirmed by the decision in Pyrene v Scindia Navigation [1954] 2 QB 402, the parties are free to agree on the role each is to play in the loading and the extent to which loading and discharging are brought within the carrier’s obligations is left to the parties themselves to decide. A recent UK Supreme Court decision (Volcafe Ltd v Cia Sud Americana de Vapores SA [2018] UKSC 61) addressed the burden of proof under the Hague/Hague-Visby Rules, and the interaction between the carrier’s duty to care for cargo under article III.2 and the defences available under article IV.2. The Court held that where a shipowner fails to deliver the cargo in the same good order and condition as when shipped, the legal burden rests upon it to prove either that the damage occurred without a breach of its duty of care under Article III.2, or that such damage was caused by an excepted peril. Where a shipowner intends to rely on an excepted peril, it must also prove that the damage was not caused by its negligence. This decision has, however, been narrowly interpreted in two subsequent decisions of the Admiralty Court and Court of Appeal.

The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules) will enter into force one year after 20 states have ratified the Rotterdam Rules. As of April 2019, there were 25 signatories to the Rotterdam Rules but only four ratifications (Spain, Togo, Congo and Cameroon). At present, it is not clear if and when the UK will ratify the Rotterdam Rules. However, a formal consultation process, including an impact assessment, will take place before the UK government takes a decision.

Multimodal carriage

Are there Conventions or domestic laws in force in respect of road, rail or air transport that apply to stages of the transport other than by sea under a combined transport or multimodal bill of lading?

Road

The Convention on the International Carriage of Goods by Road 1956 (CMR) has been implemented into English law by the Carriage of Goods by Road Act 1965. The provisions of the CMR apply to the international road leg of a carriage that comes before or after another mode of transport, including transport by sea.

Air

The Convention for the Unification of Certain Rules for International Carriage by Air 1999 (the Montreal Convention), which replaces the Warsaw Convention in respect of international carriage by air, has been implemented into English law by the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002. Article 38 of the Montreal Convention provides that in the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of the convention shall only apply to the carriage by air.

Rail

The UK is also a signatory to the Convention Concerning the International Carriage of Goods by Rail 1980 (COTIF) and to the Protocol of Vilnius (Protocol of 3 June 1999) for the modification of the convention, which is given force in English law by virtue of the Railways and Transport Safety Act 2003 and the Railways (Convention on International Carriage by Rail) Regulations 2005. COTIF 1980, as modified by the Protocol of 1999, applies to passengers, their luggage and goods under international transport documents made out for a journey over the territories of at least two member states, provided that carriage takes place exclusively over railway lines registered under the convention.

Title to sue

Who has title to sue on a bill of lading?

Anyone who is a ‘lawful holder’ of a bill of lading has rights of suit under the contract of carriage as if they had been an original party to that contract. The ‘lawful holder’ is identified in the Carriage of Goods by Sea Act 1992, section 5(2) as:

1. a person with possession of the bill who, by virtue of being the person identified in the bill, is the consignee of the goods to which the bill relates;
2. a person with possession of the bill as a result of the completion, by delivery of the bill, of any endorsement of the bill or, in the case of a bearer bill, of any other transfer of the bill; or
3. a person with possession of the bill as a result of any transaction by virtue of which he or she would have become a holder falling within (i) or (ii) above had the transaction not been effected at a time when possession of the bill no longer gave a right (as against the carrier) to possession of the goods to which the bill relates.

Once it is established that a person is the ‘lawful holder’, the next requirement for acquisition of rights is that the person must be regarded as having become the lawful holder in ‘good faith’. However, the concept of good faith is not defined in the 1992 Act.

Charter parties

To what extent can the terms in a charter party be incorporated into the bill of lading? Is a jurisdiction or arbitration clause in a charter party, the terms of which are incorporated in the bill, binding on a third-party holder or endorsee of the bill?

The extent to which the terms of a particular charter party will be incorporated into a bill of lading depends upon the proper construction of the bill of lading incorporation clause.

Where the words used in the clause refer by name or number to a specific clause or clauses in the charter party then those will be incorporated. Where the words in the bill of lading incorporation clause are general, for example, ‘all terms, conditions and exceptions of the charter party’, then only such terms as are appropriate to the carriage and delivery of the goods will be incorporated, and not terms collateral to those matters.

A charter party jurisdiction or arbitration clause is a collateral clause and will not be incorporated into a bill of lading unless it is specifically referred to in the incorporation clause, for example, ‘all terms, conditions and exceptions, including the arbitration clause in the charter party’.

A jurisdiction or arbitration clause in a charter party that is validly incorporated into a bill of lading is binding on a third party ‘lawful holder’ of the bill.

Demise and identity of carrier clauses

Is the ‘demise’ clause or identity of carrier clause recognised and binding?

Normally the bill of lading will be signed by or on behalf of the master and a bill so signed is prima facie an ‘owners’ bill’, imposing on the shipowner responsibility for performing the contract of carriage. This will be the case even though the bill might be issued on the charterers’ (or sub-charterers’) form but is signed by the master.

An ‘identity of carrier’ clause in a bill of lading is a clause that provides that the contract contained in or evidenced by the bill is to be between the shipper and the shipowner. ‘Demise clauses’ are in principle valid and effective, but they are not conclusive and may be overridden if the bill of lading has been signed in such a way, and contains terms and conditions that indicate that it is a charterers’ bill rather than an owners’ bill and the responsibility for the carriage lies with the charterer. The bill of lading as a whole will be considered and the relevant question is how the bill is likely to be regarded by a reasonable person acquainted with the shipping trade.

Shipowner liability and defences

Are shipowners liable for cargo damage where they are not the contractual carrier and what defences can they raise against such liability? In particular, can they rely on the terms of the bill of lading even though they are not contractual carriers?

Where the bill of lading is a charterer’s bill but the carrier in fact is the shipowner, he or she may be liable in tort for damage to the cargo. However, this can raise complex questions relating to the ownership of the cargo at the time of the loss or damage, and whether the shipowner, as the actual carrier, can rely on the bill of lading terms, particularly the Hague or the Hague-Visby Rules. The general principle is that the actual carrier can do so only in exceptional circumstances, such as where there is a Himalaya clause that extends the protections in the bill to third parties. There is also authority that, in appropriate circumstances, a ‘bailment on terms’ arises such that when the shipowner (the actual carrier) takes physical possession of the cargo they do so on the terms of the bill of lading.

Deviation from route

What is the effect of deviation from a vessel’s route on contractual defences?

Deviation has been defined as an intentional and unreasonable change in the geographical route of the voyage as contracted. The key words are ‘as contracted’: there is a right at common law to depart from the normal route in order to avoid danger to the ship or cargo or to save human life. Similarly, article IV (4) of the Hague or Hague-Visby Rules specifically provides that any deviation in saving or attempting to save life or property at sea, or any reasonable deviation, should not be considered to be a breach of the rules or of the contract of carriage. Departure from the normal route in these circumstances will not be a deviation. Also, there may be an express ‘liberty clause’ in the contract of carriage.

However, when there is a deviation, this will be a breach of contract rendering the carrier liable for losses caused by the deviation and, if loss arises while the vessel is deviating, the carrier will only escape liability if it can prove that the loss would have happened anyway. Furthermore, a deviating carrier may lose the benefit of clauses in the contract of carriage that are to its advantage and so be disentitled from relying on clauses exempting it from liability. In a recent decision (Dera Commercial Estate v Derya Inc ‘The Sur’ [2018] EWHC 1673 (Comm)), the Commercial Court decided “that a geographical deviation precluded a carrier from relying on the one-year time bar created by article III Rule 6 of the Hague Rules if the other party to the contract of carriage elected to terminate the contract”.

The issue of justifiable deviation has been much discussed in the context of piracy, namely whether a master or shipowner is justified in deviating from the vessel’s route to avoid capture of the ship. There is also much debate over specific deviation clauses in charter parties and whether they excuse the payment of hire in the event the vessel departs from the agreed route owing to the risk of being hijacked. This debate has led to the formulation of specific piracy clauses, including by the Baltic and International Maritime Council and the International Association of Independent Tanker Owners, with the intention of providing protection to shipowners. In addition, the marine insurance industry has developed loss of hire cover that can be purchased as a separate insurance or as an extension to the kidnap and ransom policy.

Liens

What liens can be exercised?

In the context of a discussion of carriage of goods by sea and bills of lading, relevant liens include:

• the shipowner’s lien on the cargo: in respect of freight (this type of lien arises at common law) and, depending upon its terms, other amounts payable to the shipowner under the contract of carriage (this type of lien is a contractual lien). A lien on the cargo will normally be exercised either by refusing to discharge the cargo or warehousing it ashore pending payment of sums due. They are ‘possessory’ liens, which means that they are entirely dependent upon possession and will be lost if possession is relinquished;
• the shipowner’s lien on sub-freight or sub-hire: this type of lien will only arise if the contract of carriage is subject to the terms of a validly incorporated charter party containing a relevant lien clause. It can therefore only arise as a matter of contract. The property that is subject to the lien is the charterer’s right to be paid sub-freight or sub-hire under a sub-charter of the vessel, and the lien is exercised by the shipowner effectively intercepting the sub-freight or sub-hire and directing that it be paid to him or her instead of to the charterers. The English Commercial Court has clarified the nature of charter party liens and has held that a lien on sub-freight or sub-hire creates an assignment by way of a charge. A significant consequence of this decision is that, as a security interest, an equitable charge may require registration in certain jurisdictions; and
• liens on the ship: this type of lien is not dependent upon possession and is exercisable by an action in rem commenced by arresting the vessel. A small number of claims within the admiralty jurisdiction (principally, those involving damage done by ships, salvage and in relation to seamen’s and master’s wages) will give rise to a maritime lien. Such a lien operates effectively as a charge on the ship that will follow the ship, notwithstanding a change of ownership other than by judicial sale. Other types of maritime claim (identified in question 23), while they do not give rise to a maritime lien, are enforceable by an action in rem and arrest of the vessel and are commonly referred to as giving rise to statutory liens. The right to arrest in respect of such claims is lost if there is a change of ownership of the vessel but the right will be protected if court proceedings are commenced prior to the change of ownership.

Delivery without bill of lading

What liability do carriers incur for delivery of cargo without production of the bill of lading and can they limit such liability?

In the absence of an express term in the bill of lading, delivery of cargo without production of the original negotiable bill of lading is a breach of contract that will render the carrier liable for the value of the cargo to the ‘lawful holder’ of the bill entitled to immediate possession of the cargo. The position regarding non-negotiable bills of lading is not so clear, especially where the person seeking delivery of the goods is the consignee named on the bill of lading. There is no decision directly on the point, but the view has been expressed that goods should not be surrendered without presentation of the original bill.

Notwithstanding the above it is, in practice, not always possible for the original bills to reach a receiver prior to arrival of the vessel at the discharge port. Accordingly, it is common for charter parties to include a clause requiring delivery against a letter of indemnity (LOI) or bank guarantee. Delivery against such a document will enable liability to be passed on to the indemnifier or guarantor. However, great care must be taken when drafting the LOI or bank guarantee so as to stipulate the party to whom delivery should be made. In one case, where owners delivered the cargo to someone other than the receiver named in the LOI without production of the bills of lading, the charterers’ undertaking in the LOI to provide security was held not to be engaged.

In 2012, the English Court of Appeal confirmed previous case law that the provisions of an LOI issued by receivers to voyage charterers requesting delivery of the cargo without the presentation of bills of lading may extend to owners in their capacity as charterers’ agents for the purpose of delivering the cargo, such that owners were entitled to enforce the LOI in their own name pursuant to section 1(1) of the Contracts (Rights of Third Parties) Act 1999 where the LOI provided an indemnity in favour of charterers’ ‘servants and agents’.

It remains unclear whether the one-year time limit under article III(6) of the Hague-Visby Rules applies to claims for loss or damage brought pursuant to an LOI issued to allow delivery of cargo without presentation of original bills of lading.

Shipper responsibilities and liabilities

What are the responsibilities and liabilities of the shipper?

Under article III(5) of the Hague-Visby Rules, the shipper is deemed to have guaranteed to the carrier the accuracy at the time of shipment of the information furnished by him or her as to the marks, number, quantity and weight of the cargo, and is obliged to indemnify the carrier for loss, damage or expenses resulting from any inaccuracies. Similarly, articles IV(2)(n) and (o) exempt the carrier from liability for loss of or damage to the cargo arising or resulting from insufficiency of packing and insufficiency or inadequacy of marks.

Other than its obvious duties in the light of the above provisions to ensure that the cargo is properly identified and packed, the only positive obligation on the shipper is the duty, which arises at common law, not to ship ‘dangerous’ goods without the consent of the carrier. This can include not only goods that are likely to cause physical loss of or harm to the ship, but also goods that might lead to the detention of the ship.

This duty is amplified and extended in article IV(6) of the Hague-Visby Rules and has been interpreted extremely widely to include just about any cargo that directly or indirectly causes or threatens to cause loss of life, damage to the ship or other cargo, delay or expenses to the carrier. One interesting decision considered the issue of whether the presence of rats in a cargo of soya bean meal pellets rendered the cargo dangerous. In that case, it was held that a cargo ‘loaded with a rat’ was not a dangerous cargo.

Shipping emissions

Emission control areas

Is there an emission control area (ECA) in force in your domestic territorial waters?

Yes. The North Sea (and English Channel) ECA, which has been in effect since 22 November 2007 pursuant to Annex VI of the IMO’s MARPOL, which came into force in May 2005. It has been implemented into UK domestic law by the Merchant Shipping (Prevention of Air Pollution from Ships) Regulations 2008. Annex VI to MARPOL provided that the sulphur content in fuel oil in ECAs should not exceed 1.5 per cent by mass. Annex VI was subsequently revised (see question 52). It is important to note that ECAs differ in terms of what they limit; the North Sea ECA limits sulphur oxide, as opposed to nitrogen oxides and particulate matter.

Sulphur cap

What is the cap on the sulphur content of fuel oil used in your domestic territorial waters? How do the authorities enforce the regulatory requirements relating to low-sulphur fuel? What sanctions are available for non-compliance?

The revised Annex VI to MARPOL (and the associated NOx Technical Code 2008) came into force on 1 July 2010 and imposed more stringent limits on sulphur content in fuel. In particular, the revisions provided for a reduction in the sulphur content of any fuel oil used on board ships outside the ECAs (the global sulphur cap) to 3.5 per cent (from the previous 4.5 per cent) from 1 January 2012, followed by a further reduction to 0.5 per cent from 1 January 2020. A further amendment adopted by the IMO is expected to enter into force on 1 March 2020 and will prohibit the carriage of non-compliant fuel oil for combustion purposes for propulsion or operation on board a ship (unless it is fitted with a scrubber). The sulphur limits applicable in ECAs were reduced to 1 per cent as of 1 July 2010 (from the previous 1.5 per cent), with a further reduction to 0.1 per cent from 1 January 2015. It is left to member states to ensure compliance with these requirements and to impose the appropriate penalties. In the UK, the authorities may detain or fine a vessel, irrespective of flag, for non-compliance.

To bring sulphur limits applicable within the EU in line with IMO-imposed levels, EU Directive 2005/32/EC came into force on 1 January 2010. The Directive applies to all vessels, irrespective of flag, ship type, age or tonnage, and requires EU member states to take all necessary steps to ensure that ships berthed or anchored within their ports for longer than two hours do not consume marine fuel with a sulphur content exceeding 0.1 per cent by mass. The Directive was implemented into domestic law by the Merchant Shipping (Prevention of Air Pollution from Ships) (Amendment) Regulations 2010 and the UK has been enforcing the Directive since 20 April 2010. Article 12 of the Directive states that it is left to member states to determine the applicable penalties for breach, subject to the requirement that these must be effective, proportionate and dissuasive. In the UK, the authorities may detain a vessel, impose a fine, or both, in the event of non-compliance with the Directive.

In relation to climate change, in June 2013, the European Commission adopted a Communication setting out a strategy for progressively including greenhouse gas emissions (GHG) from maritime transport in the EU’s policy for reducing its overall GHG emissions. The first step was the proposal of a Regulation to establish an EU-wide system for the monitoring, reporting and verification of carbon dioxide emissions from large ships. This Regulation, EU MRV Regulation 2015/757, entered into force on 1 July 2015 in the EU and became fully effective on 1 January 2018. This is a regulation on the monitoring, reporting and verification of CO2 emissions from all vessels over 5,000 GT trading in EU ports (regardless of their flag, port of registry or home port, but excluding certain types of vessels such as warships and other government vessels, fishing vessels and historical vessels) and is part of the EU’s overall strategy to reduce greenhouse gas emissions by 2050. Among other things, the regulation introduces certain monitoring requirements that applied from 31 August 2017. The data collected from the monitoring plan requires verification by an authorised third party and, once the verification process is successfully completed, the vessel is issued with a document of compliance that must be kept on board for inspection. Data collection takes place on an annual, as well as a per voyage basis, except if all of the ship’s voyages start or end in ports located in the EU and if the ship performs more than 300 voyages during a reporting period, according to its schedule. There are penalties available for failing to carry a document of compliance, including possible vessel detention and the issuance of an expulsion order that prohibits entry into EU ports.

Ship recycling

Regulation and facilities

What domestic or international ship recycling regulations apply in your jurisdiction? Are there any ship recycling facilities in your jurisdiction?

International standards as to ship recycling are addressed in the Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ships 2009 (the HKC). Although the HKC is not yet in force, the EU incorporated elements of the HKC regime into EU law through Regulation (EU) No 1257/2013 (the 2013 Regulation) on 30 December 2013.

The 2013 Regulation sets out requirements for European ships and European shipowners, as well as ship recycling facilities willing to recycle ships, and the relevant competent authorities or administrations. In 2016, the European Commission provided an official list of ship recycling facilities, which was later updated on 6 December 2018. As of 1 January 2019, EU flagged vessels can only be scrapped at an EU approved yard (which now includes certain yards outside EU states). Currently, the UK has four listed ship recycling facilities, which are:

• Able UK Limited at Cleveland;
• Dales Marine Services Ltd at Edinburgh;
• Harland and Wolff Heavy Industries Limited at Belfast; and
• Swansea Drydock Ltd at Swansea.

Vessels flying the flag of a third country calling at EU ports or anchorages will need to provide an updated inventory of hazardous materials on board and the installation and use of certain hazardous materials will be prohibited or restricted in port or at anchorage in an EU state. A vessel that does not comply will be subject to penalties, possible detention or both.

The Ship Recycling (Requirements in relation to Hazardous Materials on Ships) (Amendment etc.) Regulations 2018 (SI 2018/1122) put in place measures to enforce the EU Regulation within the UK.

Ship recycling is also regulated under the international standards set by Basel Convention on the Control of the Transboundary Movements of Hazardous Wastes and their Disposal, 1989 (the BC). The EU implemented the BC’s provisions through the Waste Shipment Regulation (EC) No 1013/2006 (the WSR). While the WSR does not specifically refer to ships as being waste, end-of-life vessels may fall within the definition of waste, as they likely contain a range of hazardous materials and substances including asbestos, heavy metals and oil residues. The WSR has direct effect in the UK via the Transfrontier Shipment of Waste Regulations 2007 (as amended). To avoid any overlap or confusion, ships covered by the regulation are excluded from the scope of the WSR.

Jurisdiction and dispute resolution

Competent courts

Which courts exercise jurisdiction over maritime disputes?

If the amount involved is more than £100,000, the claim can be brought in the High Court in London. Smaller claims are decided by the County Courts. The majority of maritime disputes are heard by the Commercial Court or Admiralty Court, which are specialist divisions of the High Court.

The following proceedings must be started in the Admiralty Court:

• proceedings in rem commenced in order to arrest a vessel (see question 23);
• collision claims;
• limitation actions; and
• salvage claims.

Any other Admiralty claim, as defined in section 20 of the Senior Courts Act 1981, can be started in the Admiralty Court.

Service of proceedings

In brief, what rules govern service of court proceedings on a defendant located out of the jurisdiction?

The rules governing service of court proceedings outside the jurisdiction are set out in Part 6 of the Civil Procedure Rules. Broadly, a claim form may be served on a defendant outside the jurisdiction without permission of the court where the defendant is domiciled in:

• Scotland or Northern Ireland;
• a state that is a party to the Brussels Convention or Brussels Regulation (1215/2012/EU) (EU member states); or
• a state that is a party to the Lugano Convention 2007 (Iceland, Norway and Switzerland).

Also, and regardless of the defendant’s domicile, a claim may be served on a defendant outside the jurisdiction where the defendant is a party to an agreement conferring jurisdiction on the courts of England and Wales.

Otherwise, the permission of the court is required. The claimant needs to establish that the claim has a reasonable prospect of success and that England and Wales is a proper place in which to bring the claim. There are a number of grounds listed in the practice direction to Part 6 that may qualify the claim as being suitable for service out of the jurisdiction. These include, but are not limited to, the following:

• a contractual claim where the contract was made within the jurisdiction, is governed by English law or contains an English jurisdiction agreement;
• a claim for salvage services performed within the jurisdiction;
• the person out of the jurisdiction to be served is a necessary and proper party to the proceedings; and
• a claim in tort where the damage was sustained within the jurisdiction or the damages sustained resulted from an act committed within the jurisdiction.

The methods of service on a defendant out of the jurisdiction are service in accordance with:

• the Brussels Regulation;
• service through foreign governments, judicial authorities and British consular authorities; and
• service by any method permitted by a Civil Procedure Convention or by any other method permitted by the law of the country in which the claim or other document is to be served.

Specific rules apply to service on a foreign state. However, no person is authorised or required to do something that is contrary to the law of the country where the claim or other document is to be served.

Arbitration

Is there a domestic arbitral institution with a panel of maritime arbitrators specialising in maritime arbitration?

The London Maritime Arbitrators Association (LMAA) specialises in maritime dispute resolution. As of April 2019, it has a panel of 31 full members. There are also supporting members who are available to accept appointments as arbitrators. The LMAA has four sets of rules:

• for small claims;
• fast and low-cost arbitration;
• intermediate claims and larger cases; and
• mediation terms.

The most recent set of LMAA rules (known as ‘Terms’) came into effect on 1 May 2017.

According to a recent survey London has an 80 per cent share of international arbitration referrals in respect of maritime disputes, with the LMAA handling approximately 1,500 maritime arbitrations in 2017 (the latest year for which firm statistics are available).

Foreign judgments and arbitral awards

What rules govern recognition and enforcement of foreign judgments and arbitral awards?

A foreign judgment is not automatically enforceable in England and Wales. There are a number of regimes for the recognition and enforcement of foreign judgments depending, in broad terms, on whether they are judgments of courts in Europe (broadly speaking, for the purposes of this response, member states of the EU and the European Free Trade Association), in Commonwealth countries or elsewhere in the world.

Europe

The Brussels Convention/Brussels I Regulation (recast in 2012) and the Lugano Convention govern the recognition and enforcement of judgments from the member states of the EU, Iceland, Norway and Switzerland. The Civil Jurisdiction and Judgments Act 1982 was originally passed to implement the Brussels Convention into English law. This act was subsequently amended by the Civil Jurisdiction and Judgments Act 1991 to implement the Lugano Convention 1988 into English law. Thereafter, the Civil Jurisdiction and Judgments Order 2001 gave the English courts jurisdiction under the recast Brussels Regulation. The recast Brussels Regulation largely supersedes the Brussels Convention. The Civil Jurisdiction and Judgments Regulations 2009 implemented the Lugano Convention 2007 into national law.

Enforcement of a foreign judgment under the Brussels Regime or Lugano Convention is straightforward and does not require the English courts to reassess the merits of the claim. The main examples of when the English courts will refuse to enforce such a judgment are if the judgment is contrary to English public policy or the judgment is irreconcilable with an earlier judgment given in England or Wales and involves the same cause of action and is between the same parties.

Furthermore, a European enforcement order (EEO) is available to a judgment creditor who wishes to enforce a judgment obtained in an uncontested claim within the EU. An uncontested claim is where the debtor has not objected to the claim in the course of court proceedings or has not appeared in court or has admitted that the claim exists and is justified in the course of court proceedings. The EEO does not require registration or judicial approval in England and Wales before it can be enforced. Rather, a judgment that has been certified as an EEO by the member state court of origin is, for enforcement purposes, treated as though it had been given by the courts of England and Wales.

The Commonwealth and other statutory regimes

The Administration of Justice Act 1920 governs the recognition and enforcement of judgments from Commonwealth and other countries and the Foreign Judgments (Reciprocal Enforcement) Act 1933 governs the recognition and enforcement of judgments from a further 11 countries. Broadly, under these acts, a foreign judgment may be registered for enforcement in England and Wales. The procedure for registration is relatively straightforward. The requirements for registration to take place include the following: the judgment must not have been obtained by fraud or be contrary to English public policy and the court that issued the judgment must have had jurisdiction. Once registered, the judgment takes effect as if it were an English judgment.

Elsewhere

Recognition and enforcement of judgments from the courts of countries that do not come within the statutory regimes is subject to common law rules. In very brief terms, these require the commencement of a new action on the judgment. The underlying claim will not be examined on the merits and, provided that the original court had jurisdiction according to English conflict of law rules, that the judgment is for a debt or a definite sum of money (not being a tax, fine or penalty), is final and conclusive and its enforcement would not be contrary to public policy, then the person seeking enforcement will be entitled to judgment in England for the amount due under the foreign judgment.

Arbitration awards

As of April 2019, the Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) has 159 contracting states. The majority of arbitration awards can, therefore, be enforced under the New York Convention, to which the UK is a party. Provisions for the enforcement of arbitral awards are set out in section 66 of the Arbitration Act 1996. Enforcement of non-New York Convention awards will be governed by section 66 of the Arbitration Act and by common law, the requirements are that the arbitration agreement must be valid under its governing law and the award must be final. The award will not be enforced if the arbitrators had no jurisdiction, the award was obtained by fraud, the proceedings were contrary to natural justice or where its enforcement would be contrary to public policy.

Asymmetric agreements

Are asymmetric jurisdiction and arbitration agreements valid and enforceable in your jurisdiction?

Asymmetric jurisdiction clauses, which allow one party to sue in any jurisdiction while restricting the other party to only one jurisdiction, have been common in commercial contracts, and especially financial agreements, since the 1960s. In 2012, however, the validity of such clauses under EU law was called into question when the French Cour de Cassation appeared to hold that they were ineffective under the Brussels I Regulation (the Recast Regulation).

In Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc and another [2017] EWHC 161 (Comm), the English High Court considered the validity of asymmetric jurisdiction clauses for the first time, holding that the jurisdiction clause was, in that case, effective and conferred exclusive jurisdiction on the English courts. In so finding, the judge considered Recital 22 of the Recast Regulation, which notes that one of the aims of the regulation was to ‘enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive litigation tactics’. He concluded that such aims would only be achieved if asymmetric jurisdiction clauses were treated as exclusive for the purposes of the regulation. The above said, the question of whether such clauses are exclusive jurisdiction clauses for the purposes of the Recast Regulation ultimately lies with the Court of Justice of the European Union.

Breach of jurisdiction clause

What remedies are available if the claimants, in breach of a jurisdiction clause, issue proceedings elsewhere?

The English court may issue an anti-suit injunction restraining a party from commencing or continuing proceedings in a foreign court in breach of an exclusive jurisdiction clause or an arbitration agreement. Breach of the injunction will be a contempt of court and any judgment obtained will not be recognised or enforced in England.

In 2009, the European Court of Justice (ECJ) held, however, that the courts of the countries in which the Brussels Convention or Brussels Regulation and Lugano Convention apply could not issue anti-suit injunctions to restrain proceedings in another state where the particular Convention applies. Pursuant to these Conventions, where proceedings are commenced in more than one member state and those proceedings relate to the same cause of action between the same parties, the member state court to which the dispute is later referred must stay its proceedings in favour of the other court. It is for the court to which the dispute was first referred to decide whether it has jurisdiction.

Furthermore, while the Brussels Regulation was expressly stated not to apply to arbitration, the ECJ held that courts of an EU member state could not issue anti-suit injunctions to restrain court proceedings in another EU member state where proceedings have been commenced in breach of an arbitration agreement. The ECJ found that court proceedings and judgments relating to arbitration, including whether the arbitration agreement is valid, fall within the scope of the Brussels Regulation.

Anti-suit injunctions continue to be available in England to restrain breaches of English jurisdiction and clauses subjecting disputes to arbitration in England and Wales where court proceedings have been commenced outside the EU. The English Commercial Court has also ruled that an English arbitral tribunal can award damages or an indemnity for breach of a contractual obligation to arbitrate, including where that breach is by way of commencement of proceedings in another EU member state court pursuant to the Brussels Regulation. Furthermore, the ECJ has held that it is not incompatible with the Brussels Regulation for a member state court to recognise an arbitration award that contains an anti-suit injunction. The Regulation does not prevent a court in an EU member state from recognising and enforcing (or from refusing to recognise and enforce) such an award, either pursuant to its national law or the New York Convention.

The European Court’s interference with arbitration (especially as arbitration is expressly excluded from the Brussels Regulation) led to calls for reform of the Brussels Regulation. As a result, revisions to the Brussels Regulation came into force in member states on 10 January 2015. The UK chose to opt into the ‘recast’ regulation. Among other things, the recast regulation provides that, where parties have conferred exclusive jurisdiction in their agreement on a member state court, any other member state court shall stay proceedings brought before it until the court provided for in the jurisdiction agreement rules on its own jurisdiction. This is so irrespective of in which court proceedings are commenced first. The recast regulation also clarifies the scope of the arbitration exception and confirms that the New York Convention takes precedence over the Brussels Regulation and, therefore, member state courts are permitted to recognise and enforce an arbitral award even if it is inconsistent with another member state court’s judgment. The recast regulation further confirms that a member state court can decide on the validity of an arbitration agreement even where the matter has been referred to another member state court first and also that the regulation does not apply to any court proceedings relating to or in support of arbitration. The recast regulation does not, however, expressly deal with the legitimacy of court-ordered anti-suit injunctions within the EU.

What remedies are there for the defendant to stop domestic proceedings that breach a clause providing for a foreign court or arbitral tribunal to have jurisdiction?

The English courts have powers to stay proceedings started in England on the grounds that there is an exclusive jurisdiction or arbitration clause or on the grounds of forum non conveniens, that is: if the defendant demonstrates that there is a more appropriate forum for trial of the action. The court will take into account such factors as any foreign proceedings currently under way, rules as to costs of proceedings in the foreign forum or if the alternative forum has little experience of handling complex commercial disputes. The court cannot stay proceedings on the grounds of forum non conveniens if the proceedings fall within the Brussels Regulation, Brussels Convention or Lugano Convention.

Limitation periods for liability

Time limits

What time limits apply to claims? Is it possible to extend the time limit by agreement?

Under the Limitation Act 1980, the ordinary time limit for actions founded on tort or contract, except for personal injury claims, is six years from the date on which the cause of action accrued. Where the loss or damage is latent and was not known about prior to the expiry of the limitation period, the claimant has three years from either the date of knowledge of loss or the date when it ought reasonably to have known of the loss. This applies to claims in both contract and tort but, except in actions involving personal injury, there is an overriding time limit of 15 years.

Where the claim is for death or personal injury the limitation period will expire three years from the date of the act or omission that caused the death or personal injury, or knowledge if later.

Where the action is ‘upon a speciality’, which would be the case in relation to a contract made by deed, the period is 12 years.

Various international conventions prescribe limitation periods for certain specific claims. For example:

• one year for cargo claims under the Hague or Hague-Visby Rules;
• two years for collision claims under the Maritime Conventions Act; and
• two years for salvage claims under the Salvage Convention 1989 (incorporated into English law by the Merchant Shipping (Salvage and Pollution) Act 1994).

Time limits can be extended by agreement. In practice, agreement must be reached before the time limit has expired. It should also be noted that if, by virtue of the application of English conflict of laws principles, a foreign law applies to the claim, then the applicable time limit may be that of the foreign law, not English law, and the ability or otherwise to extend that time limit by agreement will be a matter for that foreign law.

Court-ordered extension

May courts or arbitral tribunals extend the time limits?

The expiry of a limitation period under the Limitation Act 1980 or any other Act of Parliament usually provides the defendant with a complete defence to the claim made against him, as it is contrary to public policy for potential defendants to be indefinitely exposed to litigation. Under section 33 of the Limitation Act 1980, the court has a discretionary power to extend a time limit in certain circumstances, but only in respect of actions for personal injuries or death.

The court has the power to extend most procedural time limits, for example by granting the claimant an extension of time to serve proceedings on the defendant in certain circumstances.

English arbitral tribunals have the power to extend time limits for commencing arbitral proceedings. Once any available arbitral process for extending time to begin arbitration proceedings has been exhausted, the court has the power under section 12 of the Arbitration Act 1996 to extend the time limit for commencement of arbitral proceedings in restricted circumstances.

Miscellaneous

Maritime Labour Convention

How does the Maritime Labour Convention apply in your jurisdiction and to vessels flying the flag of your jurisdiction?

The Maritime Labour Convention (MLC) entered into force internationally on 20 August 2013. As of April 2019, 93 countries, including the UK, had ratified it. Each country that ratifies the MLC is under an obligation to apply its standards in its domestic law. Four ‘red ensign’ states have ratified the MLC and the rest are expected to follow suit. Red ensign states are UK Crown Dependencies (Isle of Man (ratified), Guernsey and Jersey) and UK Overseas Territories (Anguilla, Bermuda (ratified), British Virgin Islands, Cayman Islands (ratified), Falkland Islands, Gibraltar (ratified), Montserrat, St Helena and the Turks and Caicos Islands).

The MLC came into force in the UK on 7 August 2014. Shipowners must ensure that vessels flying the UK flag comply with its requirements. Subject to certain exceptions, the MLC applies to vessels of all tonnages, whether publicly or privately owned, that are ordinarily engaged in commercial activities. As a general rule, vessels of 500 GT or over must obtain certification from the Maritime and Coastguard Agency (UK flag state control), which the vessel must carry on board. The certification documents are known as the Declaration of Maritime Labour Compliance and the Maritime Labour Certificate, and are evidence that the vessel is prima facie compliant for the purposes of port state control in other state parties. Carrying the certification should avoid the need for port state control to carry out a physical inspection of the vessel.

UK port state control will inspect vessels for MLC compliance when they call at a UK port. In the case of a vessel flying the flag of a state party, the vessel should be able to present certificates issued by the relevant flag state authority or appointed recognised organisation evidencing that the vessel is compliant. The principle of ‘no more favourable treatment’ contained in the MLC will additionally require UK port state control to inspect vessels flying flags of non-ratifying countries for compliance with the MLC. In that case, a physical inspection of the vessel will need to be carried out by port state control to verify that the vessel complies with the MLC’s 14 minimum requirements regarding seafarers’ working and living conditions. This may be a slower process than the submission of certification by vessels whose flag state is a party to the MLC. If the vessel does not comply with those minimum conditions, it may be subject to delays in port, and possibly detention.

Relief from contractual obligations

Is it possible to seek relief from the strict enforcement of the legal rights and liabilities of the parties to a shipping contract where economic conditions have made contractual obligations more onerous to perform?

The English courts robustly enforce the provisions of freely negotiated commercial contracts between parties of similar bargaining power. The exception to this is legislation aimed at protecting consumers. Attempts to argue that a contract has been frustrated, for example because economic conditions have made it more onerous to perform, are usually unsuccessful. Furthermore, there is no concept of force majeure in English common law similar to the civil law concept. Force majeure will therefore only apply to English law contracts where the parties have expressly incorporated a force majeure clause. Commercial parties who wish to protect themselves from extreme economic and financial movements should therefore consider incorporating suitable provisions into their contracts, such as price escalation clauses, material adverse change clauses and force majeure clauses.

Other noteworthy points

Are there any other noteworthy points relating to shipping in your jurisdiction not covered by any of the above?

International conventions have the force of law in the UK only if and to the extent that they have been incorporated into domestic law by a statute. If there is any difference between such a statute and the text of the convention, then the statute will take precedence.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics that may affect shipping law and regulation in your jurisdiction in the foreseeable future?

Emerging trends66 Are there any emerging trends or hot topics that may affect shipping law and regulation in your jurisdiction in the foreseeable future?

On 23 June 2016 the UK voted to leave the EU. Consequently, article 50 of the EU’s Lisbon Treaty was invoked and the UK had been due to leave the EU on 29 March 2019. The UK has subsequently been granted various extensions, with the latest extension to 31 October 2019.

A key concern for the shipping sector is the impact that the above will have on the UK’s current obligations (including UK registered vessels and vessels calling at UK ports) under EU law. Under the European Union (Withdrawal) Act 2018 all EU law will be converted into domestic law and the laws made in the UK to implement EU obligations will be preserved. Various regulations have been drafted to ensure that the above remain operable, including the Merchant Shipping (Monitoring, Reporting and Verification of Carbon Dioxide Emissions) (Amendment) (EU Exit) Regulations 2018, which aims to maintain the EU MRV for vessels calling at UK ports following Brexit, and the Ship Recycling (Facilities and Requirements for Hazardous Materials on Ships) (Amendment) (EU Exit) Regulations 2019, which will ensure that the legal framework of ship recycling remains legally operable.

Although it is uncertain as to when the UK might leave the EU, it is clear that attempts are being made to ensure that, as far as the law is concerned, there is a smooth transition.