By: Ajay Maraj

In ear­ly 2024, the tug­boat ‘So­lo Creed’ was deemed re­spon­si­ble for aban­don­ing a cap­sized barge off the coast of To­ba­go, caus­ing a ma­jor oil spill and sig­nif­i­cant en­vi­ron­men­tal dam­age. The ves­sel fled and failed to re­port the in­ci­dent to lo­cal au­thor­i­ties lead­ing to in­creased dam­age to 15 kilo­me­ters of To­ba­go’s shore­line. Ma­jor clean-up ef­forts were un­der­tak­en to sal­vage the en­vi­ron­men­tal dam­age.

In an at­tempt to hold the tug­boat ac­count­able, the So­lo Creed was found and “ar­rest­ed” by Trinidad and To­ba­go (“T&T”) of­fi­cials in An­go­la. Notwith­stand­ing the ar­rest, there re­mains on­go­ing de­bate as to whether T&T may prac­ti­cal­ly be able to hold the So­lo Creed ac­count­able for the dam­age done.

While the ar­rest of the So­lo Creed ar­rest took place in An­go­la as the ves­sel fled T&T, some may ques­tion– what frame­work, if any, does T&T have in place to al­low for the ar­rest of ships with­in our ju­ris­dic­tion?

This ar­ti­cle pro­vides a brief overview of the le­gal frame­work re­lat­ing to ship ar­rests in T&T.

What is ship ar­rest?

Ship ar­rest is a civ­il law pro­ce­dure in which a per­son or en­ti­ty who has a claim against a shipown­er is per­mit­ted to de­tain the ship in or­der to se­cure their claim.

In or­der to com­plete a ship ar­rest, the in­tend­ed claimant must first file an ad­mi­ral­ty claim in rem (i.e. a claim di­rect­ly against the ship) at the High Court of T&T be­fore ob­tain­ing and serv­ing a war­rant of ar­rest to de­tain the ship.

When can ships be ar­rest­ed?

A ship can on­ly be ar­rest­ed in re­la­tion to ad­mi­ral­ty claims in rem and while in the ju­ris­dic­tion of T&T’s ter­ri­to­r­i­al wa­ters, or its con­tigu­ous zone in the event that the ves­sel is seek­ing to flee. Ships can­not be ar­rest­ed in the arch­i­pel­ag­ic wa­ters of T&T as ships of all states en­joy the right of in­no­cent pas­sage through­out these wa­ters un­der our laws.

What is an ad­mi­ral­ty claim in rem?

As not­ed above, ad­mi­ral­ty claims in rem are claims di­rect­ly against the ship. These claims have de­fined pa­ra­me­ters un­der our laws. Pur­suant to Parts 74.2 and 74.3 of T&T’s Civ­il Pro­ceed­ings Rules 1998 as amend­ed (“CPR”), Ad­mi­ral­ty Claims in rem are per­mit­ted for claims re­lat­ed to:

* the pos­ses­sion or own­er­ship of a ship;

* ques­tions aris­ing be­tween co-own­ers as to pos­ses­sion, em­ploy­ment or earn­ings of a ship;

* mort­gage or charges on a ship (or any share there­in);

* a mar­itime lien or oth­er charge on a ship for the amount claimed; and

* for­fei­ture or con­dem­na­tion of a ship.

Ad­di­tion­al­ly, where the claim aris­es in con­nec­tion with a ship or where a per­son li­able in a claim in per­son­am was the own­er, char­ter or in con­trol of the ship at the point in time when the cause of ac­tion arose, ad­mi­ral­ty claims in rem are al­so per­mit­ted for claims such as those in re­la­tion to:

* dam­age done by a ship;

* loss of life or per­son­al in­jury sus­tained due any de­fect in a ship, her ap­par­el or equip­ment;

* loss of life or per­son­al in­jury sus­tained in con­se­quence of the wrong­ful act(s) or neg­li­gence of (a) the own­ers, char­ters or per­sons in pos­ses­sion or con­trol of a ship, or (b) the mas­ter or crew of a ship for whose wrong­ful acts (or neg­li­gence) the own­ers or char­ters are re­spon­si­ble;

* loss or dam­age to goods car­ried in a ship; and

* agree­ments re­lat­ing to the car­riage of goods in a ship or to the use or hire of a ship.

The lists of itemised ex­am­ples of claims in rem above are not meant to be ex­haus­tive.

Where a claim aris­es in re­la­tion to mat­ters set out above and the said ship is lo­cat­ed with­in T&T’s ter­ri­to­r­i­al wa­ters or its con­tigu­ous zone (in the event the ship at­tempts to flee), the ship would be li­able to ar­rest and de­ten­tion un­der our laws.

How are ships ar­rest­ed?

Fol­low­ing the fil­ing of an ad­mi­ral­ty claim in rem (as out­lined above), ship ar­rests are then com­plet­ed via the process set out in Part 74 of the CPR, name­ly by ap­ply­ing for and ob­tain­ing a War­rant of Ar­rest and hav­ing the War­rant ex­e­cut­ed by the Ad­mi­ral­ty Mar­shal.

In or­der to suc­cess­ful­ly ob­tain a War­rant of Ar­rest the Claimant, sub­ject to Part 74.9 of the CPR, must:

* pro­cure a search to be made in the caveat book to de­ter­mine whether there are any caveats against ar­rest in force in re­la­tion to the ship; and

* file an af­fi­davit which iden­ti­fies the name of the ship and the port to which she be­longs, the na­ture of the claim against the ship, and con­fir­ma­tion that the claim has not been sat­is­fied. There are ad­di­tion­al re­quire­ments to be in­clud­ed in the af­fi­davit if the claim in ques­tions re­lates to caus­es of ac­tion as iden­ti­fied in (a) to (e) above.

Once the Ap­pli­ca­tion for the war­rant of ar­rest is filed, the court will re­view same and if sat­is­fied, is­sue the war­rant of ar­rest which is en­dorsed with the court’s Seal.

At this stage, the war­rant of ar­rest is ex­e­cut­ed by the ad­mi­ral­ty mar­shal, who of­ten with the ac­com­pa­ni­ment of law en­force­ment or port of­fi­cials, vis­its the port where the ship is lo­cat­ed and phys­i­cal­ly de­tains the ship.

In or­der to de­tain the ship, the ad­mi­ral­ty mar­shal boards the ves­sel and serves the war­rant. The war­rant of ar­rest is served by af­fix­ing the war­rant on any mast of the ship or on the out­side of any suit­able part of the ship’s su­per­struc­ture; and on re­mov­ing the war­rant leav­ing a copy of it af­fixed in its place. The war­rant must then be filed at the Court with­in sev­en days of ser­vice.

What hap­pens af­ter ar­rest?

Fol­low­ing the ar­rest of a ship, the court will hear and de­ter­mine the claim filed. Where the claimant is suc­cess­ful, the court will make ap­pro­pri­ate or­ders, which may in­clude the sale of the ship in or­der to sat­is­fy the judg­ment.

Af­fect­ed par­ties may ap­ply to have the ar­rest­ed ship re­leased (up­on the pro­vi­sion of suf­fi­cient se­cu­ri­ty be­ing pro­vid­ed), and/or to con­test the de­ten­tion of the ship.

Con­clu­sion

The laws of T&T in­clude pro­vi­sion for the ar­rest of ships with­in the coun­try’s ter­ri­to­r­i­al wa­ters, and in cer­tain cir­cum­stances its con­tigu­ous zone. Uti­liza­tion of the ship ar­rest pro­ce­dure al­lows for the se­cu­ri­ty of ad­mi­ral­ty claims through the de­ten­tion of ves­sels and serves to in­crease the prob­a­bil­i­ty of re­cov­ery of monies owed to claimants.

Ajay Maraj is an As­so­ciate at M. Hamel-Smith & Co. He can be reached at mhs@trinidad­law.com

Dis­claimer: This Col­umn con­tains gen­er­al in­for­ma­tion on le­gal top­ics and does not con­sti­tute le­gal ad­vice