Maritime Laws of Bangladesh | Admiralty & Ship Arrest | A complete overview of Admiralty Law in Bangladesh
Tahmidur Rahman, Senior Associate, TR Barristers in Bangladesh
12 Aug 2019
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This post in details will explain Maritime Laws of Bangladesh | Admiralty & Ship Arrest, and Everything about Admiralty and Maritime law in Bangladesh that you need to know and be aware of.
What is Maritime or Admiralty Law?
Maritime or Admiralty law deals with marine issues and private maritime disputes. The Chief Marine Officer Law Office consists of both national law on naval operations and private international law governing against independent individuals and ocean-going ships working or eating. While each legitimate locale usually has its own enactment overseeing maritime issues, significant advances in universal maritime law, including various multilateral treaties, may be recognized by the Law of the Sea, which is a group of open global laws managing navigational rights, mineral rights, waterfront jurisdiction, and maritime links between countries.The United Nations Convention on the Law of the Sea (UNCLOS) was adopted by 167 countries and the European Union, and discussions are settled at the ITLOS court in Hamburg.
Maritime or Admiralty Law in Bangladesh
The Admiralty Law of the Country is mainly governed by Admiralty Act of 2000. The law on admiralty and maritime affairs can be traced back to the Law of the Admiralty Courts of 1840. The Act was subsequently drawn up by the Admiralty Court Act, 1861, the Courts of Admiralty Act, 1891 and the Admiralty Rules of 1912. Now in Bangladesh, the Admiralty Courts Act 2000 deals with all issues related to Admiralty. (Maritime Laws of Bangladesh | Admiralty & Ship Arrest)
Admiralty Court in Bangladesh
The High Court Division of Supreme Court of Bangladesh has an original jurisdiction to deal with the cases of admiralty. It extends to ships or vesselsanchored at any port of Bangladeshi.
The Admiralty Court shall have jurisdiction in regards to Maritime Laws of Bangladesh | Admiralty & Ship Arrest | to hear and determine any question or claim in relation to:
- (a) the possession or ownership of a ship;
- (b) any question raised by the co-owners of a ship as to the possession, employment or income of that ship;
- (c) any claim in respect of a mortgage or charge on a ship or any share thereof;
- (d) any claim for damages made by a ship;
- (e) any claim for damages made by a ship;
- (f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship
- (g) any claim for loss of or damage to goods carried in a ship;
- (h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;
- (i) any claim in the nature of salvage of life from a ship
- (j) any claim in respect of towage of a ship or an aircraft;
- (k) any claim for forfeiture or condemnation of a ship or of goods
Mode of exercise:
The admiralty jurisdiction of High Court Divisionmay be exercised in personamandaction in rem with some conditions.The Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against the ship, aircraft or property.
Institution of Suit :An action or a suit before the High Court Division shall be instituted by a plaint drawn up, subscribed and verified according to the Code of Civil Procedure, 1908. As per section 7 of Admiralty Act 2000, the maximum court fee for Admiralty suits is Taka.1, 00,000 (One Lac), except the claims by the master or seamen for wages earned on board. (Maritime Laws of Bangladesh | Admiralty & Ship Arrest)
Overview of Ship Arrest in Bangladesh
Bangladesh is one of the most advantageous arrest jurisdictions for reasons such as, for example, Bangladesh is not a signatory to any arrest convention, the ship can be arrested in rem, the vessel can be arrested in person, the ship can be arrested for security, the ship can be attached even after the loss of navigability, the ship can be arrested for maritime ties as well as for maritime claims.
P & I club LIU / LOI is not accepted for release of the vessel and the vessel is released upon furnishing of the bank guarantee. The High Court Division of the Supreme Court of Bangladesh exercises Admiralty Jurisdiction under the Law of the Admiralty Court, 2000 and the Rules of Admiralty, 1912. Admiralty Rules provide that a warrant for the arrest of property may be issued in the case of either the plaintiff or the defendant at any time after the suit has been brought, but no warrant for the arrest shall be issued until an affidavit has been filed by the party or its agent and the following provisions have been complied with:-
- The affidavit shall state the name and description of the party at whose instance the warrant to be issued, the nature of claim or counter-claim, the name and nature of the property to be arrested, and that the claim or counter-claim has not been satisfied.
- In a suit of distribution of salvage the affidavit shall state the amount of the salvage money awarded or agreed to be accepted, and the name, address and description of the party holding the same
(Maritime Laws of Bangladesh | Admiralty & Ship Arrest)
Process of Application for Arrest of Ship in Bangladesh
In order to file an application for the arrest of a ship, the applicant must initiate a suit by paying Tk. 1.00000.00 as the fee of the Court. In a suit for wages Tk is charged by the Court. 100.00 is required to be paid for. The plaint along with the documents is to be filed in the section / office of the Court and the application for arrest of the ship is filed in the Court. Usually, the application comes up in the Daily Cause List of the court on the following working day. However, if the Court is satisfied with urgency of the matter it prepares a supplementary cause list and hears the matter on the same day. If prima facie case in made out in support of the claim the Court Admits the suit and directs issuance of summons. Thereafter, the application for arrest is heard and if the court is prima facie satisfied about the merit of the application it passes an order for arrest of the ship for security of the claim amount. An application for arrest of ship is heard ex-parte unless a caveat has been filed by the defendants. The order for arrest of ship is served upon the defendants by the Marshal of the Court on receipt of fee and charge paid by the claimant. Likewise, cargo on board or any property belonging to any party can also be arrested by the Admiralty Court.
Tahmidur Rahman-“TR Barristers in Bangladesh handle a wide range of wet shipping issues in the ports of Dhaka, Chittagong and Khulna for both domestic and global customers, including ship owners, ship agents, P&I clubs, lenders, charterers and freight intrigues, together with their safety net providers. In addition, the company discussed the exchange of affiliations and different suppliers of freight forwarders to the maritime administrations. The firm has dealt with a range of load debates, including various issues, such as mass oil, grain and containerized products. In addition, the firm has some expertise in adjacent maritime links and universal expressions and laws. (Maritime Laws of Bangladesh | Admiralty & Ship Arrest)”
“TR Barristers in Bangladesh is Considered as one of the leading Maritime Shipping Law Firm in Dhaka, Bangladesh”
Carpe Noctem Bangladesh
Revocation of Order of Ship Arrest in Bangladesh
The arrest warrant may be vacated by the same court on the basis of an application filed by the defendant on the ground that the ship was wrongly arrested and the defendants may also file an application for a reduction in the quantity of safety, but hearing such an application takes 1 or 2 weeks. This kind of application is not generally advised when the ship is in a hurry. A ship shall be released from arrest on the deposit of the amount of the claim in the Court or on the furnishing of a local bank guarantee. The P&I Club LOU is not accepted in Bangladesh. Upon release of the ship upon furnishing of the bank guarantee, an application for a reduction of the bank guarantee may also be moved by the defendants, and, if allowed, a revised Bank guarantee would be furnished. The release order is also served by the Marshal upon receipt of Marshal’s fee.
If the ship has not gotten released by the defendants, the plaintiff can pray for sale of the ship pendente lite and the Court sells the ship through auction and keeps the proceeds with the Marshal which is paid to the plaintiff if the suit is decreed in his favour. If there is more than one claimant and the proceeds cannot satisfy the claims, the Court applies the English Law of priorities. (Maritime Laws of Bangladesh | Admiralty & Ship Arrest)
International Conventions Applicable to Bangladesh Maritime Law
Neither the International Convention relating to Arrest of Seagoing Ship 1952 nor the International Convention of the Arrest of Ships1999 have been ratified by Bangladesh.
Other ways to arrest a ship in Bangladesh Jurisdiction of Admiralty Law
The ship may also be arrested by the applicant in the event of an order passed by the High Court Division or a judgment handed down by a foreign court against the owner of the ship. A ship may also be attached to a suit in person before a judgment is made. A ship may be attached to a suit in rem if it is beached for scrap before the suit is put in place. Under the Bangladesh Merchant Shipping Ordinance (MSO) 1983, the Principal Officer of the Mercantile Marine Department may detain an unseaworthy vessel. Under the MSO, the High Court Division may detain a foreign ship for damages caused in any part of the word to the Government of Bangladesh or any Bangladeshi citizen or company and to the Principal Officer or Collector of Customs can detain a ship before such application has been made to the High Court Division. Under the Regulations for Working of Chittagong Port (Cargo and Container) 2001the Chittagong Port Authority can detain a vessel until security has been given for the amount of damage caused and the Cost involved in removing the blockade of navigational channel or the total amount is paid.
Are there any alternatives e.g. saisie conservatoire or freezing order in Bangladesh Maritime Law?
There is no separate freezing order other than arrest of a ship in an Admiralty proceeding or in an execution proceeding to enforce a decree. However, an application for injunction to restrain a party from scrapping or removing a vessel can be passed by the Court.
Claims through which you can arrest a ship in Bangladesh according to Bangladesh Maritime Law:
A ship may be arrested in an action for any of the following claims:
- Any claim to the possession or ownership of a ship or to the ownership of any share or to the collection of documents of title and ownership of a ship, including a certificate of registration, a log book and the certificates that may be necessary for the operation or navigation of a ship;
- Any question arising between the co-owners of a ship as to possession, employment or income of that ship;
- Any claim in respect of a mortgage of or charge on a ship or any share therein;
- Any claim for damage done by a ship;
- Any claim for damage received by a ship;
- Any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterer or persons in possession or control of a ship or of the master or crew thereof or any other persons for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
- Any claim for loss of or damage to goods carried in a ship;
- Any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;
- Any claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services were rendered on the high sea or within territorial waters or inland waters or in a port, including any claim arising by virtue of the application by or under section 12 of the Civil Aviation Ordinance, 1960, (Ordinance XXXII of 1960) of the law relation to salvage to aircraft and their apparel and cargo;
- Any claim in respect of towage of a ship or an aircraft;
- Any claim in respect of pilotage of a ship or an aircraft;
- Any claim in respect of goods or materials supplied to a ship for her operation or maintenance;
- Any claim in respect of construction, repair or equipment of a ship or dock charges or dues;
- Any claim for wages by a master or member of the crew of a ship or any claim for any money or property recoverable as wages of master or member of the crew under the Merchant Shipping Ordinance, 1983, or in the Court;
- Any claim for disbursements made on account of or for the purpose of a ship by the Master, shipper, charterer or agent of the ship;
- Any claim arising out of an act which is or is claimed to be a general average act;
- Any claim arising out of bottomry or respondentia;
- Any claim for forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, or for the restoration of a ship or any such goods after seizure, or for droits of admiralty together with any other jurisdiction to grant reliefs as are provided under the provisions of the Merchant Shipping Ordinance.
Is a ship arrest possible without discriminating its flag?
Any ship could be arrested irrespective of its flag if it’s within the jurisdiction of Bangladesh Admiralty or Bangladesh Maritime Law. (Maritime Laws of Bangladesh | Admiralty & Ship Arrest)
Is a ship arrest possible irrespectively of the debtor?
As long as the claim gives rise to an action in rem, even if the ship belongs to a Foreign State the ship would be arrested. But the ships belonging to the Government of Bangladesh, Bangladesh Army, Bangladesh Navy, Bangladesh Air Force, Bangladesh Rifles, Bangladesh Police and Coast Guard are indemnified.
Can a Sister ship or a ship in association be arrested in Bangladesh according to the Maritime law?
A sister ship can be arrested. But a ship in associated ownership (sister company ship) cannot be arrested.
Can Bareboat and Time-Chartered vessels be arrested according to Bangladesh Maritime Law?
If the ship is on bareboat charter, it can be arrested and if it is on time charter it cannot be subjected to arrest.
Does Bangladesh Maritime Court require counter-security in order to arrest a ship?
Counter-security is not required to be provided at the time the Court orders a ship to be arrested. However, the Code of Civil Procedure provides that where, at any stage of the case, it appears to the Court that the sole plaintiff is, or (where there are more than one plaintiff) that all the plaintiffs reside outside Bangladesh and that the plaintiff is not, or that none of the plaintiffs possesses, in Bangladesh, sufficient immovable property other than the property in suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant.
Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien accoring to the Maritime Law in Bangladesh?
If the plaintiff’s claim is a maritime lien, the claim survives notwithstanding the change in ownership of a ship and the ship can be subjected to arrest. If the claim is a maritime claim and not a maritime lien the ship cannot be arrested if, before filing of the suit, ownership of the ship has changed.
Does Bangladesh Maritime Law recognise maritime liens? Under which International Convention, if any?
Sections 477 and 478 of the MSO recognize maritime liens to the Seaman’s wages and the Master’s wages respectively. No other statute recognizes maritime liens. However, Court follows English law of maritime liens.
What lapse of time is required in order to arrest a ship from the moment the file arrives to Tahmidur Rahman| TR Barristers in Bangladesh?
After receipt of file/documents along with Power of Attorney, a minimum of 2 days or 48 hours are required to obtain an order of arrest.
Does the aggrieved party need to provide a POA (Power of Attorney) or any other documents of the claim to the Admiralty Court of Bangladesh?
Power of Attorney executed by the client, notarized and attested by the Bangladesh High Commission in the plaintiff’s country is required to be filed along with other documents to prove the claim. But the Court permits to file suit by dint of the scanned copy of the Power of Attorney subject to filing the original after authentication by the Ministry of Foreign Affairs and payment of stamp duty.
What original documents are required? What documents can be filed electronically and what documents require notarisation and/or apostille? And, when are they needed?
All documents in support of the claim along with correspondence between the parties are required to be filed at the time of filling the suit and application for arrest. Original documents are required to be filed at the time of trial.
Will Bangladeshi Courts accept jurisdiction over the substantive claim once a vessel has been arrested?
Court usually accepts jurisdiction over the substantive claim once the vessel has been arrested. However, the Court may refrain from adjudicating the substantive claim if any agreement of jurisdiction stipulates for foreign jurisdiction. In case of pendency of maritime arbitration, court maintains the arrest order for the purpose of security and stays the substantive suit.
“All documents in support of the claim along with correspondence between the parties are required to be filed at the time of filling the suit and application for arrest. Original documents are required to be filed at the time of trial.” (Maritime Laws of Bangladesh | Admiralty & Ship Arrest)
Maritime and Admiralty Legal Services Offered by reputed law firms in Bangladesh like TR Barristers in Bangladesh
Prominent law firms in Dhaka Bangladesh regularly engage in maritime business to assist their clients with their extensive experience in the field of wet and dry shipping. Under Dry Delivery Work, the firm deals with disputes relating to contract of claims under marine protection or insurance policies, cargo or freight claims, capture of ships or arrest of ships, Ship registration, purchase and transfer of title and possession in Ships, Shipbuilding Contracts, Sale and Purchase of Second-hand Tonnage Contract, Arbitration in connection with various transport related Contracts The company spoke to the bearer, the shipper, the bank, the sailor and the director, the P & I Club and, furthermore, the owner of the ship at a high rate of achievement.
Bangladesh Government urges overseas shipowners to enlist their vessels under the Bangladesh Flag. Government has established easy-going principles and guidelines for the advancement of shipping areas. TRW lawyer is in the process of providing assistance and advice and will help to avoid either litigation or infringements of state law to ensure the best possible outcome for their client and help ship owners to register their vessels with the Principal Officer-Mercantile Marine Department (POMMD), Chittagong through Bangladesh Inland Water and the BIWTA Transport Authority.
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