Order of Arrest and Warrant of Arrest
- The Judge's order for the arrest of the ship will direct that the ship
be arrested at any hour of the day or night, including Sundays and
holidays, and that it may not be arrested if payment of the sum stated in
the order, comprising the amount of the claim in the suit and the ad
valorem court fee and the sheriff's poundage, is paid on behalf of the
ship or satisfactory security for the claim is furnished. The affidavit in
support should state as to why the Judges Order should be allowed, this
affidavit should also mention that notice to consul has been given,
wherever applicable. The Admiralty Judge may pass a separate order
arresting the ship and also sign the Judges Order for arrest of the ship.
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- Warrant of Arrest are sometimes dispenses with by the Judge. if not, Warrant of Arrest is served by the bailiff of the Sheriff/ Marshall
and in a state where there is no Sheriff court allows direct service. The
Sheriff shall serve the process of the Court and shall return the process
to the Registry within four days from the service thereof.
In a suit in rem the Writ of Summons or the Warrant of arrest shall be
served on the property against which the suit is brought; Where the
property is ship or cargo on board, service shall be effected by affixing
the original Writ of Summons or the Warrant of arrest for a short time on
any mast of the ship or on the outside of any suitable part of the ship's
superstructure, and leaving a duplicate thereof affixed in its place, when
removing the original Writ of Summons or the Warrant of arrest; Where the
property is cargo which has been landed or transshipped, service shall be
effected by placing the original Writ of Summons or the warrant of arrest
for a short time on the cargo and leaving a duplicate thereof upon the
cargo, when removing the original Writ of Summons or the warrant of
arrest; Where the cargo is in the custody of a person who will not permit
access to it, service shall be made upon the custodian; Where the property
is freight, service shall be effected by serving on the cargo in respect
of which the freight is payable or on the ship in which the cargo was
carried, in the manner hereinabove prescribed in this rule for service on
a cargo or on a ship.
The effect of arrest is that it constitutes the ship or other property as
security in the hands of the court for the claim in the action and this
security cannot be defeated by the subsequent insolvency of the owner of
the arrested property. The arrest enables the Court to keep the property
as security to answer the judgment, and unaffected by chance events which
may happen between the arrest and the judgment.
Once the warrant for arrest has been executed, the property is arrested
and is in the custody of the Sheriff/ Marshall on behalf of the court.
Interference by any party with the arrest process such as removing the
property to be arrested with knowledge that an arrest has been issued is a
contempt of court, this includes any interference with the custody of the
property after arrest such as moving the property within the jurisdiction
without authority, or removing it from the jurisdiction, as was held in
The "Jarlinn" [1965] 1 W.L.R. 1098 and also in The "Abodi Mendi" [1939]
178.
A warrant of arrest on a ship covers everything belonging to it as part of
its equipment, even items which are physically detached from it, but not
items which do not belong to the ship owner such as the personal property
of the master and crew or the luggage of a passenger.
A ship may be arrested but the cargo on board her is not under arrest, or
cargo is arrested but the ship in which it is laden is not. If a ship is
to be arrested while she is in the course of discharging her cargo, the
Sheriff/ Marshal will not stop the discharge operations unless the arrest
is in respect of the cargo. When cargo is arrested the ship owners can
request the Sheriff/ Marshal to take the appropriate steps to enable the
ship to be discharged.
The warrant for arrest when issued by the Court's registry will be served
by the bailiff of the Marshal of Calcutta and by the bailiff of the
Sheriff of Mumbai (Bombay) or Chennai (Madras) or his substitute who is
required to effect the service by affixing (i.e. attaching and not just
holding in position by hand) the original warrant of arrest for a short
time (the duration should be about 10 to 15 minutes) on any mast of the
ship or on the outside of any suitable part of the ship's superstructure,
then removing the original and leaving a duplicate thereof affixed in its
place. (This mode of service is enjoined in the case of service of the
writ of summons, see infra, on the ship.) There have been occasions where
persons entrusted with the service are not competently instructed as to
the mode of the service, which is of particular importance in a suit in
rem, and, indeed, there have been instances where service has been
effected on the master or a mate by delivering the duplicate of the
warrant to him and obtaining his acknowledgment on the original. This
would constitute bad service as would service on any other person on board
the ship - The Marie Constance. There have been no instances of the arrest
having been impugned on account of bad service.
There is no provision made in the Rules for effecting service on a ship
lying at a port other than that in whose registry the writ has been
issued, viz, Calcutta, Madras or Bombay, through the Collector of Customs
at such other port. This lacuna puts the plaintiff to the expense of
taking the marshal's/sheriff's substitute to that port to arrest the ship
and there is also the possibility of the ship sailing away before service
can be accomplished. To avoid this possibility it is advisable that the
registry should be requested by a praecipe (after obtaining order from the
Court to that effect) to give telegraphic/facsimile intimation to the Port
Conservator and to the Commissioner of Customs at the particular port of
issue of the warrant for arrest of the ship and instruct that officer not
to grant port clearance to the ship, pending arrival of the warrant of
arrest.
Whereas the Admiralty Rules require that the warrant shall be returned
within a stipulated period from the service thereof.
The Calcutta and Madras Rules provide that, after expiration of 12 days
from the return of the warrant for arrest, if no appearance shall have
been entered in the suit the advocate for the plaintiff may cause the suit
to be set down for hearing and also provide that, if when the suit comes
up before the court, the judge is satisfied that the plaintiff's claim is
well founded he may pronounce the claim and may order the ship to be sold
with or without previous notice and the proceeds of the sale paid into the
registry or make such order in the premises as he deems fit. The warrant
of arrest issued by the said two High Courts is in its form citatory,
calling upon the owners and all parties interested in the ship to appear
before the court, is deemed sufficient notice to all whom it may concern
regarding the suit. It, however, does not require them to file a written
statement to the suit.
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- BCAS: 2102-1013
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