Modern Maritime Law Volume 1: Jurisdiction and Risks
INDEX
INDEX
-
abuse of process, re-arrest 175
- see also piercing corporate veil
- action in personam see in personam claims/proceedings
- action in rem see in rem claims/proceedings
- Admiralty and Commercial Court Guide, 2011 (without notice application) 155
- Admiralty Court
-
Admiralty Court jurisdiction
- action in rem see action in rem
- Arrest Convention 1952 8
- civil law 8
- and Common Law Courts 1, 2, 8, 9, 97, 109
- conflict between Admiralty and common law courts 2
- foreign aspects and extent 7
- foreign sovereign
- historical overview
- international ambit 7
- legislation since 1840
- limitations 7
- limits to invoking
- need for consolidation of all courts 4
- origins 1
- present time
- sources 5
- subject matter jurisdiction 6
- terminological changes
- unique aspects
- Admiralty Marshal, sale by
- Admiralty Registry 9, 104
- aircraft, enforcement of maritime claims 52
-
anti-suit injunctions
- arbitration exception
- breach of agreement
- breach of arbitration agreement
- cases of breach of an arbitration agreement
- comity factor 322, , 355
- common law vs. civil law regime
- contract cases 340,
- declaratory relief
- development of law
- discord between court judgments of Member States
- equitable damages awarded for breach of obligation to arbitrate
- forum non-conveniens doctrine 324, 349, 350
- Front Comor decision
- hybrid cases 353
- ‘interests of justice’
- issue estoppel 338
- issues 324
- lis pendens rule 340, 356
- nature and scope
- new trend for an anti-arbitration injunctions
- non-contract cases 340,
- non-exclusive jurisdiction clause 341
- outside scope of the Regulation
- practical issues
- precedence of New York Convention over Brussels I Regulation 336, 339
- prohibition
- recognition and enforcement issues
- res judicata 336, 352
- risk management
- stay of proceedings 229
- whether an ancillary measure
- see also freezing injunctions
-
arbitration
- agreement to arbitrate or litigate in particular forum 94
- anti-suit injunctions , 327, , , ,
- arbitration awards or judgments, enforcement of claims regarding 50
- breach of agreement , ,
- conflict between two arbitration agreements 244
- curial law 249
- dispute requirement for referral to arbitration
- dispute to be covered by agreement
- equitable damages awarded for breach of obligation to arbitrate
- EU jurisdiction regime
- law governing agreement
- London Court of International Arbitration (LCIA) rules 241
- option of one party to select
- Section 9 of AA 1996 240
- dispute requirement for referral to arbitration
- dispute to be covered by agreement
- law governing agreement
- legal proceedings brought ‘in respect of a matter’ 255
- preconditions to a stay of court proceedings under
- validity requirement, arbitration agreement
- whether conflicting or tiered dispute resolution clauses
- Section 11 of AA 1996, scope
- stay of English proceedings in favour of
- validity requirement, arbitration agreement
- whether conflicting or tiered dispute resolution clauses
-
arrest of ship
- Admiralty Court Acts
- aftermath
- associated ship 118, 145, 148, 151
- caution against 156
- caution against release
- conditions
- effecting
- groundless arrest 159, 165
- non-truly in rem claims
- particular circumstances, release in 158
-
in personam liability
- beneficial ownership see beneficial ownership
- company structures and liable person 125
- corporate veil see corporate veil; piercing corporate veil
- liability in personam
- meaning of ‘beneficial ownership’
- meaning of ‘charterer’
- meaning of ‘owner’
- meaning of ‘person in possession or control’ 121
- minority shareholding
- nature and function 98
- restrictions
- veil of one-ship companies
- weaknesses 99
- provision of security for claim
- re-arrest
- release from arrest
- relevant ship
- in rem proceedings
- ‘as of right,’ warrant as 155
- sister ship 118, 145, 148
- South African ship arrest and piercing corporate veil
- subject matter of arrest
- third party rights
- truly in rem vs. non-truly in rem claims
- unjustified arrest (Australia) 168
- void for being equivalent to sequestration 102
- warrant
- ‘wrongdoing’ ship 148
- wrongful
-
assets
- dissipation of 69
- substantive control over 78
- assignment, of maritime lien 197
- associated ship, arrest 118, 145, 148, 151
- Australia, wrongful arrest 168
- ‘backhoe dredger,’ as ship 20
- bank duties, freezing injunctions 79
- Belgium, wrongful arrest 170
- beneficial ownership
- bills of lading, ante-dated 43
- bottomry, enforcement of claims regarding 61
- bribery, rescinding of contract 240
- Brussels I Regulation
- burden of proof, forum non-conveniens doctrine 207, 210, 214, 236
- Canada, wrongful arrest 168
- cargo claims , 203
- charterers
- civil law
- claims, maritime
- comity doctrine, anti-suit injunctions 322, , 355
- Commercial Court 6
- common law/Common Law Courts
- Companies Courts, competition of claims brought in
- competition of claims
- conflict of laws
- containers, enforcement of claims 49, 53
- contribution claims 204
- co-owners, claims arising as to possession, employment or earnings
- corporate veil
- cost orders, and piercing corporate veil
- court fund
- Court of Justice of the European Union (CJEU) 261, 268
- court order, bank duty not to be in contempt of 79
- crassa negligentia test, wrongful arrest
- creditors, maritime 102
- Crown, ships of 12
- Crown Court 2
- curial law, arbitration 249
- damage claims
- deceit, tort of 43
- declaratory proceedings, ‘same cause of action’ 271
- demise charterer, and meaning of ‘beneficial ownership’ 122, 123
- Denmark, wrongful arrest 170
- detention, preservation of statutory right 182
- disbursements, enforcement of claims in respect of
- dishonesty, evidence of 69
- dismissal of claim, on time bar grounds
- dissipation of assets, freezing injunctions 69
- domicile rule
- drilling units, whether included within definition of ship 21
- duty of care, to subsidiary company
- economic loss claims, enforcement 36
-
enforcement of maritime claims
- of charterers
- claims enforceable under Section 20(2) of SCA 1981
- arbitration awards or judgments 50
- arising between co-owners of a ship as to possession, employment or earnings
- bottomry, claims arising out of 61
- carriage of goods on ship, agreement relating to
- construction, repair or equipment of ship or dock charges/dues
- containers 49, 53
- damage done by a ship
- damage received by a ship 32
- ‘direct connection’ test 48, 51
- disbursements
- excluded claims
- forfeiture or condemnation of a ship
- general average acts 61
- goods carried on ship, claims for loss of or damage to
- goods or materials supplied to ship for operations or maintenance
- guarantor, claims brought in rem against 51
- insurance premiums
- loss of life or personal injury
- miscellaneous claims 47
- payments under an FFA 50
- pilotage, in respect of ship or aircraft 52
- possession or ownership of a ship or of a share therein
- in respect of a mortgage or of charge on a ship or any share therein
- restoration of ship or goods after seizure or droits of Admiralty
- salvage services 51
- ship agents’ claims ,
- ‘supplied to a ship’ 53
- tort, claims in ,
- towage, in respect of ship or aircraft 52
- use or hire of a ship
- wages of master or crew
- freezing injunctions see freezing injunctions
- interim relief 77
- liens, maritime see liens, maritime
- of ship agents ,
- statute as tool 23
- statutory rights in rem 9, 25
- subject matter jurisdiction
- tracing orders 77
- see also competition of claims; in personam claims/proceedings; in rem claims/proceedings
- equitable liens 27
-
EU jurisdiction regime
- aims and objectives 261
- arbitration exception
- background
- ban of forum non-conveniens doctrine
- defendant domiciled in a third State
- defendant domiciled in a third State, where natural forum a Member State
- defendant domiciled in a third State with proceedings in two Member States
- defendant domiciled in Member State, where natural forum a third State
- limitation of liability actions
- proceeding in a third State and in a Member State
- Brussels I Regulation
- certainty and mutual trust 261
- choice of court of a non-Member State 308
- Council of European Union
- entering an appearance 308
- European Parliament
- exclusive jurisdiction 309
- exequatur, abolition 314
- identical actions as between Member States
- inception
- lis pendens 269, 332
- lis pendens rule, exceptions to general rule
- multiple proceedings between Member States and third States
- multiple proceedings within Member States
- prorogation of jurisdiction
- protection of defendants domiciled in EU Member States 261
- protective measures
- public policy issue 314
- Recast Regulation
- Recast Regulation (Art 25), choice of agreements under
- reciprocal recognition and enforcement of judgments 261
- recognition and enforcement of judgments
- related actions as between Member States
- specialised Conventions
- European Court of Justice (ECJ) 261
- European Union see EU jurisdiction regime
- expert evidence
- fieri facias, writ of 174
- Finland, wrongful arrest 170
- foreign sovereign, Admiralty Court jurisdiction
-
forum non-conveniens doctrine
- ‘1936’ rule
- anti-suit injunctions 324, 349, 350
- balance of convenience 207
- ban of see under EU jurisdiction regime
- burden of proof 207, 210, 214, 236
- certainty and mutual trust 261
- Collision Convention 1952 288
- conflicting dispute resolution clauses 245
- defendant domiciled in a third State, proceedings in two Member States 292, 293, 294
- defendant domiciled in a third State, where natural forum a Member State
- defendant domiciled in Member State, where natural forum a third State 290
- effect of founding jurisdiction as of right 213
- EU jurisdiction regime 265
- first stage (connecting factors) 213
- general principle 213
- gradual incorporation of Scottish doctrine into English law
- jurisdiction not exercised 206
- lis pendens rule 269, 283
- national rules, application 265
- natural forum 211
- present formula
- proceeding in a third State and in a Member State 291
- related actions as between Member States 282
- second stage (all the circumstances) 214
- service out of the jurisdiction compared
- Spiliada decision, impact upon , 293
- stay on grounds of
- treatment of a legitimate personal or juridical advantage
- ‘vexatious and oppressive’ wording 206, 208, 209
- see also forum shopping
- forum shopping
- France, wrongful arrest 170
-
fraud
- and freezing injunctions 76, 77
- one-ship companies, corporate veil 131
- rescinding of contract 240
-
freezing injunctions
- as ancillary remedy 65
- bank, duty of 79
- cause-of-action defendant vs. non-cause-of-action defendant 78
- comparison with other security measures 68
- as discretionary remedy 65
- dissipation of assets 69
- extended jurisdiction for
- extent of jurisdiction to third parties
- and fraud 76, 77
- free-standing
- as Mareva injunctions 66
- nature, scope and objective
- origins of power to grant 66
- person obtaining, no duty of care owed to 79
- previous ‘Siskina’ barrier 71
- requirements to be granted
- ‘same cause of action’ 271
- worldwide
- see also anti-suit injunctions
- Front Comor decision
- general average acts, enforcement of claims regarding 61
- Germany, wrongful arrest 170
- goods, enforcement of claims regarding
- guarantor, claims brought in rem against 51
- Heidelberg Report 2007, Brussels I Regulation 262, 310
-
High Court of Admiralty 1, 2
- see also Admiralty Court jurisdiction
- Hong Kong, wrongful arrest 169
- hybrid cases 107, 111, 353
- Indian Grace (No 2), effect on action in rem
-
in personam claims/proceedings
- beneficial ownership see beneficial ownership
- breach of foreign jurisdiction clause 234
- company structures and liable person 125
- corporate veil
- Crown ships 12
- distribution of the court fund 187, 188
- EU jurisdiction regime
- Indian Grace (No 2) decision 108, 115
- international ambit of Admiralty jurisdiction 7
- jurisdiction bases 200
- jurisdiction not exercised 205
- liability in personam
- meaning of ‘beneficial ownership’
- meaning of ‘charterer’
- meaning of ‘owner’
- meaning of ‘person in possession or control’ 121
- minority shareholding
- nature and function 98
- old action (maritime attachment or quasi in rem) 11
- origin of Admiralty Court jurisdiction 3
- and personal service of claim form 98
- procedural theory decisions, misapplication 112
- res judicata 272, 273
- restrictions imposed
- Rule B1 attachment (Supplemental Rules for Admiralty or Maritime Claims of the Federal Rules of Civil Procedure), US
- rules for service 12
- statute as tool for enforcement 23
- terminology 5
- weaknesses of proceedings 99
-
in rem claims/proceedings
- arrest of ship
- beneficial ownership, risk management 145
- breach of foreign jurisdiction clause 234
- classification of claims in different jurisdictions 190
- competition of claims 180
- containers 53
- defendant in proceedings
- distribution of the court fund 187, 188
- EU jurisdiction regime 272
- execution of foreign in rem judgment by rearrest in this jurisdiction
- foundation 9
- functions of proceedings
- fundamental value of in rem proceeding 11
- against guarantor 51
- Indian Grace (No 2), effect on
- Indian Grace (No 2), effect on action in rem 115
- issue of proceedings
- issuing of proceedings, effect 10
- jurisdiction bases 200
- nature of proceedings 99
- origin of Admiralty Court jurisdiction 3
- procedural theory decisions, misapplication 112
- quasi in rem proceedings 10, 11
- re-arrest 175, 176
- registration in Admiralty Registry 9, 104
- and right to detain 184
- service of claim form 154
- service of proceedings, effect 11
- ship agents’ claims 54
- ship personification vs. procedure 10
- statute as tool for enforcement 23
- statutory rights 9, 25
- subject matter of proceedings (the ship)
- terminology 5
- tort, claims in 43
- traditional features 107
- truly in rem claims, vs. non-truly in rem claims 10, 97
- wages of master or crew, claims for 55
- writs of prohibition 109
- wrongful arrest 164
- insurance premiums, claims for
- Inter-Club NYPE Agreement 203
- ‘interests of justice’, anti-suit injunctions
- interim relief 77
- issue estoppel, anti-suit injunctions 338
- jet ski, as ‘ship’
- Jeune, Sir Francis 106, 110
-
jurisdiction
- Admiralty Court see Admiralty Court jurisdiction
- ambiguity of term 65
- bases
- breach of agreement
- classification of claims in different jurisdictions
- common law
- defendants’ tangible or intangible personal property within (Rule B1
- attachment)
- equitable 66
- European Union regime see EU jurisdiction regime
- exclusive 309,
- extended
- extent of jurisdiction to third parties
- foreign jurisdiction agreement, stay of English proceedings on ground of
- freezing injunctions
- meaning of ‘jurisdiction is invoked’
- no leave for service out
- non-exclusive jurisdiction clause 237
- not exercised or discontinued 200,
- to prohibit dealing with a ship 30
- purpose 66
- service of process base 200
- service out of
- special, provided against a third party 146
- subject matter jurisdiction 6,
- lex fori (law of the forum)
-
liens, maritime
- action in rem 9
- advantage over other statutory rights in rem 28
- applicable law
- assignment 197
- claims attracting 27
- compared to a mortgage on a ship 27
- contractual 190
- equitable 27
- extinction 196
- Indian Grace (No 2) case 110
- means of enforcement 28
- nature
- and possessory liens 27
- ranking pari passu 187, 188
- ship-repairers
- statutory 25
- transferability
- unable to be registered 104
- whether loss of life/personal injury claims attract
- lifting the corporate veil
- limitation fund, transferability of claim to
- limitation periods, wages claims 204
- lis pendens 269, 332
-
lis pendens rule , 317
- anti-suit injunctions 340, 356
- and arbitration exception 327
- breach
- certainty and mutual trust 261
- conferment to specialised conventions 269
- defendant domiciled in a third State, proceedings in two Member States 293
- defendant domiciled in a third State, where natural forum a Member State 295
- delegation of jurisdiction by Article 71 to specialised conventions 285, 286
- EU jurisdiction regime 261, 262, 269, 270
- exceptions to
-
forum non-conveniens doctrine 211, 283
- ban of 289
- identical actions as between Member States 269
- limitation of liability actions 297
- national rules, application 265
- when court first seised of proceedings 274
- Lord High Admiral 1, 2, 3, 4
-
loss of life or personal injury claims
- defects in ship, apparel or equipment
- dismissal of claim, on time bar grounds 203, 204
- by foreigners against foreign ship for tort committed on high seas
- incidents occurring on board another ship 37
- maritime lien, whether attracting
- origins of statutory provision 36
- or property 204
- wrongful act, neglect or default in navigation or management of a ship 37
-
mala fides test
- confusion as to meaning 165
- inappropriateness of criminal law test to wrongful arrest of ships 163
- lifting the corporate veil 133
- meaning 159
- release in particular circumstances 158
- wrongful arrest 158, 159, 163, 165
- see also crassa negligentia test, wrongful arrest; wrongful arrest
- malice test, wrongful arrest
- malicious prosecution, stringent test
- Mareva injunction see freezing injunctions
- master of ship, claims by
- minority shareholding, action in personam
- mortgages or charges on ship, claims in respect of
- navigation
- necessaries
- neglect, loss of life or personal injury claims 37
- New York Produce Exchange (NYPE) 119, 203
- Nigeria, wrongful arrest 168
- non-truly in rem claims
- Norway, wrongful arrest 170
- Nuyts Report 2007, Brussels I Regulation, 262
- one-ship companies, corporate veil , 134
- ownership or possession
- parent company liability, corporate veil and beneficial owner principles 129
- passengers, claims of
-
piercing corporate veil
- ancillary relief proceedings 140
- applications to vacate attachment
- amendment 93
- de novo review 93
- post attachment hearings (Aqua Stoli case)
- post-attachment procedures 93
- beneficial owner principles
- conditions 88
- and cost orders
- domicile rule 146
- effect on contractual transactions
- façade, concealing true facts 135
- factors or indicators of dominated corporation
- ‘flag of convenience’ state 135
- vs. lifting the corporate veil
- risks faced by defendants
- ‘sham transfers’ 136
- South African ship arrest
- substitute security, providing 93
- ‘wrongdoing’ ship arrest 148
- see also corporate veil; Rule B1 attachment (Supplemental Rules for Admiralty or Maritime Claims of the Federal Rules of Civil Procedure), US
- pilotage, enforcement of claims in respect of ship or aircraft 52
- Poland, wrongful arrest 170
- pollution damage, claims enforceable under Section 20(2) of SCA 1981 35
- port authorities
- Portugal, wrongful arrest 170
- possession or ownership of a ship or of share, maritime claims see ownership or possession
-
possessory liens
- and maritime liens 27
- ship-repairers, lien of 185
- privatisation, and beneficial ownership
- prohibition, writs of 109
-
public policy issue
- anti-suit injunctions 339
- EU jurisdiction regime 314
- quasi in rem proceedings 10, 11
- ratio decidendi 112, 210
- re-arrest
- Recast Regulation
- recognition and enforcement of judgments, EU jurisdiction regime
- res judicata
- risk management
- rowing boat, as ‘ship’ 15
- Rule B1 attachment (Supplemental Rules for Admiralty or Maritime Claims of the Federal Rules of Civil Procedure), US
- rule of law, ‘same cause of action’ 270
- sale
- salvage claims 51, 204
- Scandinavian countries, wrongful arrest 170
- sculling boat, as ‘ship’ 15
- ‘seagoing’, defined 18
- security for maritime claims
- separability principle, stay of proceedings 240
- sequestration, arrest void for being equivalent to 102
-
ship
- action in rem
- another, incidents occurring on board 37
- arrest of see arrest of ship
- associated, arrest of 118, 145, 148, 151
- construction, repair or equipment: claims in respect of
- Crown ships 12
- damage done by
- damage received by 32
- defects in ship, apparel or equipment
- defined see ship, definition
- dock charges or dues, claims in respect of
- foreign, claims by foreigners against for tort committed on the high seas
- forfeiture or condemnation, claims for
- goods carried on, claims for loss of or damage to
- goods or materials supplied to for operations or maintenance, claims in respect of
- jurisdiction to prohibit dealing 30
- master or crew, wages claims
- mortgages or charges, claims in respect of
- one-ship companies, corporate veil , 134
- personification vs. procedure, in action in rem 10
- possession or ownership, maritime claims
- restoration following seizure or for droits of Admiralty, claims for
- rowing boat as 15
- sale see sale
- sculling boat as 15
- sister, arrest of 118, 145, 148
- towage in respect of, enforcement of claims 52
- use or hire of
- whether mere charge protected 32
- ‘wrongdoing’ 148
- wrongful act, neglect or default in navigation or management of 37
- ship, definition
- shippers, enforcement of claims by
- ship-repairers, lien of
- Singapore, wrongful arrest 169
- sister ship, arrest 118, 145, 148
- slot charterer, and meaning of ‘charterer’ 120
- South Africa
- special jurisdiction, provided against third party 146
- specific performance, ‘same cause of action’ 271
- Spiliada decision
-
stay of proceedings
- arbitration, in favour of
- ‘broad judicial discretion’ 229
- English proceedings, on ground of a foreign jurisdiction agreement
- availability of factual evidence in England not in itself a strong cause
- breach of foreign jurisdiction clause
- expert evidence in England
- general principle 226
- matters not constituting a strong cause or reason
- multiplicity of proceedings
- Spiliada decision, connecting factors
- stay unless strong reason shown
- time bar in contractual jurisdiction not in itself a strong cause
- forum non-conveniens doctrine, on grounds of
- multiplicity of proceedings
- subject matter jurisdiction
- Supreme Court of Judicature, origins 4
- time bar grounds, dismissal of claim
- time charterer, and meaning of ‘charterer’ 120
- Tomlin orders, lis pendens rule, exception to 306
- tort, claims in
- towage, enforcement of claims in respect of ship or aircraft 52
- tracing orders 77
-
truly in rem claims
- arrest of ship 98
- maritime liens 25
- vs. non-truly in rem claims 10, 97
- Turkey, wrongful arrest 170
- United States (US)
- ‘vessel’, defined 16, 18
-
‘vexatious and oppressive’ wording
- anti-suit injunctions 342, 343
- forum non-conveniens doctrine 206, 208, 209
- voyage charterer, and meaning of ‘charterer’ 120
- wages of master or crew, claims for
- Woolf Reform of Civil Justice 5
- wrongful act, loss of life or personal injury claims 37
-
wrongful arrest
- Arrest Convention 1999
- civil law jurisdictions 170
- common law jurisdictions, other
- confusion
- crassa negligentia test see crassa negligentia test, wrongful arrest
- inappropriateness of criminal law test
- malice test
- recent decisions
- stringent test, malicious prosecution
- without reasonable and/or probable cause concept 160, 161, 165, 166